South Florida Injury Law Blog
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In negligence cases arising from automobile accidents, whether a party received a traffic citation related to the accident is generally inadmissible.  Courts do not want the jury to substitute the officer’s decisions to write or not write a citation for the jury’s own determination as to the negligence of the parties.  If such evidence is presented to the jury, it may lead to a mistrial or a reversal on appeal.

file0001047958234The Second District recently held that this evidentiary rule also applies to incidents on the water in the case of Soto v. McCulley Marine Services, Inc. The defendants were hired by the county to help build artificial reefs in the Gulf of Mexico.  The project required the transport of materials by barge.  Over the July Fourth holiday weekend, the captain moored the tugboat and the barge by the dock in the staging area created by the county.  This staging area was located adjacent to a beach and a park, which were heavily used by the public, especially people on personal watercraft.  The area had a reputation for strong tidal currents.  The tugboat and the barge were each about 65 feet long, and they jutted out into the pass.

On the day of the incident, the victim had been on a jet ski near the barge and tugboat when the jet ski stalled.  The victim was unable to restart it.  The currents were allegedly strong that day, and the victim became separated from the jet ski.  He was later found under the barge.  He had drowned, despite the fact he was still wearing his life jacket.

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The Florida Legislature has codified the Daubert standard for expert testimony in § 90.702, Fla. Stat. Pursuant to the statute, a qualified expert may provide opinion testimony regarding scientific, technical, or specialized knowledge that will assist the trier of fact in determining a fact at issue or understanding evidence if the testimony is based on sufficient facts and data and is the product of reliable principles and methods. Additionally, the expert witness must have reliably applied the principles and methods to the facts. The trial court therefore evaluates the qualifications of the proposed expert and ensures the testimony is relevant and based on a reliable foundation.

file000425772961.jpgThe First District recently considered whether the expert testimony of an emergency department physician as to the standard of care and the actions of emergency personnel responding to a 911 call was properly excluded in Baan v. Columbia County.

This tragic case arose from the death of an 11-month-old child. EMS responded to a call that the child was in respiratory distress. The child’s aunt sought the help of a neighbor because the boy was having trouble breathing. That neighbor said she held the child during the whole time EMS was present during the first visit. She also stated that EMS did not perform an exam or even touch the child on the first visit, but she had previously stated that a first responder had held a stethoscope to the child’s back.
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Florida law requires special procedures in medical malpractice cases. Not all injuries caused by a health care provider are necessarily the result of medical malpractice, however. Because of the different procedures required in medical malpractice cases, it is important to determine if a particular case is the result of medical malpractice or ordinary negligence early in the process.

keys-1469103-639x413.jpgThe First District recently considered the distinction in the case of Shands Teaching Hospital and Clinics, Inc., d/b/a Shands Vista v. Estate of Ashley Lawson. The defendant in this case is a psychiatric hospital. The deceased woman had been a patient in a locked psychiatric unit in the hospital. After having been in the hospital for more than two months, the woman had taken an employee’s keys and badge and escaped. She was struck and killed by a truck on a nearby highway. Her estate later filed suit against the hospital, alleging ordinary negligence. The hospital moved to dismiss on the grounds that the allegations were actually medical negligence and that the plaintiff had filed to comply with the mandatory presuit requirements for medical malpractice cases.

The trial court denied the motion to dismiss, finding that the claim was for ordinary negligence because the complaint alleged the woman was not receiving care or services at the time of the breach. The defendant petitioned for a writ of certiorari.
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Generally, a product liability case in Florida must be brought within four years from the time that the facts giving rise to the cause of action were discovered or should have been discovered through due diligence. Section 95.031, Florida Statutes. To prevent product manufacturers, sellers, and distributors from being liable for their products for perpetuity, the Florida legislature passed a statute of repose for product liability cases. The statute of repose provides that a person may not file an action based on product liability more than twelve (12) years after the delivery of the product to its first purchaser or lessee who was not engaged in the business of selling the product, leasing the product, or using the product as a component part to manufacture another product. This statute of repose only applies to products with an expected useful life of ten (10) years or less, but all products other than those specifically excepted in the statute are conclusively presumed to have a useful life of ten (10) years or less. The exceptions include “improvement to real property, including elevators and escalators.”

water-1180466-640x480.jpgWhat does and does not constitute an improvement to real property is a common issue. The Third District recently considered whether a pool filter was an improvement to real property in the case of Dominguez v. Hayward Industries, Inc. The case arose when a swimming pool filter exploded, and a man suffered a severe head injury. The pool and filter had been installed on December 20, 1999, and the injury occurred on November 17, 2012.

The man and his wife sued the filter manufacturer and distributor, the installer and intermediate distributor, and the certified pool contractor. The couple sued the manufacturer and distributor and installer and intermediate distributor in strict liability. They sued the contractor for negligence. Additionally, there was a count for loss of consortium.
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Unfortunately, in many personal injury cases, the defendant has possession or control of much of the evidence that would prove the plaintiff’s case. In premises liability cases, plaintiffs often have to rely on discovery to obtain information and evidence to prove the defendant was negligent. Sometimes, however, evidence that would be beneficial to the plaintiff is protected from discovery by the work product doctrine.

at-the-docks-1533124-639x426.jpgThe Third District considered the application of the work product doctrine to photographs taken after an accident in the recent case of Seaboard Marine Ltd. v. Clark. In this case, an employee of a stevedoring company was injured when a top loader ran over him.

The injured man filed suit against the county that owns the terminal and the company that leases it from the county and operates it. The plaintiff alleged that noise, congestion, inadequate lighting, and disorganized storage of containers at the terminal created a dangerous work environment.
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When parents leave their children with a daycare, they expect the employees to take care of their children and keep them safe. Sadly, children are sometimes injured or killed while in the care of a babysitter or daycare. If a child’s injuries are caused by the negligence of a babysitter or daycare, the child or parents may be able to recover for the loss.

lonely-playground-1557033-1279x959.jpgA recent Third District case considered whether an insurer who issued a personal automobile policy was liable for a child’s death in a vehicle belonging to a daycare. In Bryant v. Windhaven Insurance Company, an infant tragically died after being left in a daycare’s van for more than seven hours in the summer.

The estate sued the daycare, the daycare’s landlord, and the driver of the van. The driver then sought defense and coverage from his personal automobile insurance policy, even though the death occurred in the daycare’s van. His insurer provided the defense under a reservation of rights, meaning that it reserved its right to later deny coverage. The insurer then filed a declaratory action claiming that the policy did not provide coverage for the child’s death.
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Some types of personal injury cases are more difficult for the plaintiff because the defendant is in control of many of the records that will help prove the plaintiff’s case. In medical malpractice cases, the health care provider involved likely created and maintains the records of the incident.

stethoscope-1-1541316.jpgFlorida law provides certain privileges that protect the confidentiality of peer reviews conducted by medical review committees or the governing board of a hospital that are used by the committee or board in its decision-making process. Article X, § 25 of the Florida Constitution, known as “Amendment 7,” provides patients access to “records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

The Second District recently considered how these laws work together to determine if a medical malpractice plaintiff was entitled to the discovery of documents related to “attorney requested external peer review.” The plaintiff in Bartow HMA, LLC v. Edwards filed a medical malpractice case against the doctor who removed her gall bladder and the hospital, alleging the hospital was liable for the injuries caused by the doctor, nurses, and other hospital personnel when her common bile duct was severed during the surgery. Her claims against the hospital were based on vicarious liability, agency, apparent agency, negligent hiring, and non-delegable duty.
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Defendants in personal injury cases often try to get as much information about a plaintiff as possible. Florida rules of procedure allow a defendant to obtain discovery of any non-privileged matter that is relevant to the subject matter of the case. A discovery request is not subject to an objection just because the information or documents it requests would be inadmissible, as long as the request is reasonably calculated to lead to admissible evidence.

Florida courts have recognized, however, that the right to privacy in the Florida dog-tags-2-1160101-m (300x210).jpgConstitution limits the courts from compelling disclosure of information that is not necessary for the court to determine the issues before it. Section 23 of Article 1 of the Florida Constitution states, “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

In a recent case, the Second District held that the defendant’s right to discovery of the plaintiff’s military record was limited to those portions of the record that were relevant to the case.
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It was all the way back in December 2012 that we blogged about the strange case of Dorsey v. Reider, a legal proceeding that stemmed from a drunken fight outside of a Florida bar. In that post, we noted that the state’s Third District Court of Appeals had decided that the man being sued couldn’t be held liable for injuries inflicted on the plaintiff by a third party. Roughly 15 months later, the Florida Supreme Court recently stepped in and reversed this decision.

another-beer-1156122-m.jpgAs the Third District previously explained, Dennis Dorsey, Robert Reider and Russell Noordhoek were drinking together in a Florida bar in late August 2007 when Reider became belligerent, saying that he wanted to fight everyone in the place. Dorsey told Reider he was “acting like an a***hole” and left the bar. Reider and Noordhoek followed and Reider then trapped Dorsey between the bed of his truck and an adjacent car and demanded an explanation.

As Dorsey and Reider argued, Noordhoek grabbed a land clearing tool called a “tomahawk” from Reider’s truck. Seeing Noordhoek approach, Dorsey attempted to escape, pushing Reider to the side. Dorsey and Reider proceeded to scuffle and Noordhoek then approached Dorsey and bashed him in the head with the tomahawk, knocking Dorsey unconscious. Noordhoek and Reider fled the scene and Dorsey later drove himself to an emergency room after regaining consciousness.
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Res ipsa loquitur is a well-established legal doctrine that can come in handy for plaintiffs in a wide variety of injury cases, including those related to accidents at sea. The U.S. District Court for the Southern District of Florida explains the doctrine in Gandhi v. Carnival.

sunshine-1343716-m.jpgMr. and Ms. Gandhi sued the Carnival cruise company, alleging that their daughter was injured when her arm got caught in an elevator door while the family were passengers aboard a Carnival ship. Among other injuries, they said their daughter sustained a severe laceration and fracture as a result of the incident. Alleging claims for negligence, the Gandhis referenced the doctrine of res ipsa loquitur and argued that it applied to the claims.

But the Court said it was premature to reference the doctrine at this stage in the litigation. “The Supreme Court has developed a law of res ipsa loquitur in admiralty that permits the trier of fact to draw inferences of negligence from unexplained circumstances,” the Court explained, quoting the 1986 decision by the U.S. Court of Appeals for the Fourth Circuit in Larkins v. Farrell lines Co. In order to invoke the doctrine, the Court said a plaintiff must show that the event at issue is the kind that doesn’t usually happen without someone’s negligence, that the instrumentality that caused the accident was in the defendant’s “exclusive control” at the time and that the accident wasn’t caused by any “voluntary action or contribution” by the injured party.
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