Florida Court Halts $2.4 Million Nursing Home Death Verdict, Citing Juror Dishonesty - Hillsboro Management v. Pagono

August 16, 2013,

In Hillsboro Management v. Pagono, Florida's Fourth District Court of Appeals explains that honesty isn't just the best policy for the parties in a personal injury lawsuit, but also for the jurors being considered to weigh in on any particular case.

green-room-156461-m.jpgMs. Tremblay was 98 years old when she was admitted to Living Legends Retirement Center in Deerfield Beach. Although an admission chart indicated that she did not need help walking or standing, Tremblay fell several times shortly after moving to the center. According to the court, Tremblay fell a total of 19 times over the course of 26 days she was at Living Legends. She suffered a number of serious injuries as a result, but the court said the evidence was unclear as to whether these injuries actually caused her death on the 26th day.

Tremblay's granddaughter, Ms. Pagono, sued Living Legends' owner (Hillsboro Management) for negligence. She said that the company failed to properly supervise Tremblay and presented evidence at trial of a number of instances in which staff failed to report Tremblay's condition and did not supervise her, despite knowing she was at risk of falling. A jury later returned a verdict in Pagono's favor, awarding her more than $145,000 in past medical expenses, $750,000 in non-economic damages and punitive damages in the amount of $1.5 million.

Continue reading "Florida Court Halts $2.4 Million Nursing Home Death Verdict, Citing Juror Dishonesty - Hillsboro Management v. Pagono" »

Negligence and Obvious Danger in Florida Personal Injury Cases - Rodriguez v. Akal Security

August 7, 2013,

In Rodriguez v. Akal Security, a federal court in Florida explains that while state negligence law imposes a duty to warn others about dangerous situations in certain circumstances, it does not impose such a duty where the danger is obvious.

1390010_exercise.jpgPedro Rodriguez was injured in an accident while using gym equipment at the Krome Service Processing Center in Miami, where he was being held as an inmate after entering the country illegally from Mexico. He had previously been deported to his home country and was detained at Krome after being picked up by police in Indian River County.

Akal Security, Inc. provided security at the detention center under a contract with the federal government. Two Akal employees were on duty at the gym when Rodriguez was injured after misusing a ProMaxima Hip and Dip Combo apparatus. One side of the ProMaxima is for "dip" exercises in which a user grips handle bars more than four-and-a-half feet above the ground and lowers and raises himself by bending at the elbows. The other side is designed for "chin up" exercises, in which the user hangs from handle bars perched more than 7-and-a-half feet above the ground and pulls himself up so that his chin reaches the bars. The chin up side also includes stairs to allow users to reach the handle bars.

Rodriguez claimed that he was not able to reach the chin up handle bars, however, even by using the stairs. So, on the day of the accident, he approached the dip side of the ProMaxima and hoisted himself up so that his feet were on the handle bars. Rodriguez then attempted to climb over the top of the machine in order to use the chin up side. He fell from the ProMaxima in the process and was injured. Rodriguez claimed that one of the Akal employees on duty saw him climbing the machine and did not intervene, instead yelling "superman" before Rodriguez fell to the floor.

Rodriguez later sued Akal for negligence, alleging that its employees should have warned him that climbing the ProMaxima was dangerous. He asserted that he had never seen anyone else use the apparatus before the accident and did not realize that he was using it improperly.

Continue reading "Negligence and Obvious Danger in Florida Personal Injury Cases - Rodriguez v. Akal Security" »

Federal Court Orders Boat Inspection in Accident Case - Stephens v. Florida Marine Transporters

July 29, 2013,

If you've been injured on a boat, it makes sense that you (and your lawyer) would want to take a look at the vessel prior to going to trial in a case related to the accident. In Stephens v. Florida Marine Transporters, the U.S. District Court for the Eastern District of Louisiana explains that a company whose deckhand was allegedly injured on one of its boats has to make the vessel available for inspection.

1325791_boat_bumper.jpgStephens was injured in an accident while working as a deckhand and crewmember on the M/V CHRIS PIKE. He was injured while attempting to replace two defective ram cylinders on the vessel, each of which weigh roughly 500 or 600 lbs. The cylinders were difficult to handle, according to Stephens, because they did not contain hand-holds. He began complaining of a pulled muscle in his back while finishing the job and said that the pain increased later that night. The back injury eventually required surgery. Stephens sued his employer, Florida Marine Transporters, alleging that the company was negligent and responsible for the injury.

Following a discovery dispute, Stephens filed a motion under Federal Rule of Civil Procedure 26(b)(1) asking that the company be required to make the CHRIS PIKE available for inspection. He argued that he should be entitled to inspect the boat because that is where he performed the cylinder replacement tasks that allegedly caused his injury.

Meanwhile, Florida Marine argued that inspection was improper because Stephens did not actually suffer an injury aboard the boat. Instead, the back injury was "a mere manifestation of symptoms which occurred in the service of the vessel," according to the company. Indeed, the company claimed that Stephens did not mention any injury until four days later and at that point complained only of a groin problem. When he was questioned at a hearing, Stephens did not identify a certain point in the cylinder replacement process in which he began to feel pain or injury, according to the company.

The District Court sided with Stephens, finding that questions during a previous hearing "do not unambiguously resolve the issue of whether he actually experienced pain during the process of removing the ram cylinders from the CHRIS PIKE. Specifically, the court said some of these questions asked Stephens whether he "remembered" experiencing any pain during certain aspects of the cylinder replacement, including removing and later re-installing a metal grate. Stephens was not asked whether he actually experienced any pain, according to the court. "Whether Stephens sustained an injury during the grate removal and re-installation process clearly remains at issue," the court explained. "There is a palpable distinction between admitting that pain was actually 'felt' or 'experienced,' and merely 'remembering' that paid had been felt.

Continue reading "Federal Court Orders Boat Inspection in Accident Case - Stephens v. Florida Marine Transporters " »

Court Says Florida Medical Device Negligence Claim Pre-empted by Federal Law - McClelland v. Medtronic

July 16, 2013,

In McClelland v. Medtronic, the U.S. District Court for the Middle District of Florida explains some of the legal hurdles facing a person looking to sue a medical device maker for negligence.

724725_massive_column.jpgThe case surrounded the tragic death of B. McClelland in August 2011 as a result of heart failure. McClelland had complained of recurrent heart palpitations prior to this time and was driving to the hospital when she passed away. Later tests showed that an EnPulse pacemaker Model E1DR21 implanted in her had failed due to certain deficiencies. Product manufacturer Medtronic issued a recall of the pacemakers more than one year later and released a software update to reprogram the defective devices that were recalled.

McClelland's mother, as representative of her estate, sued Medtronic for negligence. She alleged that the company had a duty to notify McClelland and the Food and Drug Administration about defects in the E1DR21 that could lead to serious injury or death and that it failed to do so. According to the suit, the product would have been recalled earlier - before McClelland's death - had the company reported the defects in a timely manner.

Dismissing the complaint, the Middle District held that the negligence claim was pre-empted under the federal Medical Device Act (MDA). The MDA, according to the court, amended the Food, Drug, and Cosmetic Act's regulation of medical devices entering the market and "imposed a regime of detailed federal oversight." The law specifically pre-empts any state regulations that are different from or in addition to the federal regulations that apply to a certain device. Nevertheless, the U.S. Supreme Court clarified in Riegel v. Medtronic in 2008 that state law claims based on the alleged violations of regulations that "parallel," but do not add to the relevant federal requirements are not pre-empted.

Here, the court said the claim that Medtronic breached a duty owed to McClelland by failing to adequately warn her about dangers associated with the product, if allowed to go forward, "would impose requirements different or in addition to those in place under the MDA. "The MDA and its implementing regulations set forth a comprehensive scheme under which a device manufacturer must submit reports to the FDA regarding incidents where the device may have contributed to a death or serious injury," the court explained. That scheme does not, however, require the manufacturer to inform patients about such incidents.

Continue reading "Court Says Florida Medical Device Negligence Claim Pre-empted by Federal Law - McClelland v. Medtronic" »

Florida "Undertaker Doctrine" at Issue in Wrongful Death Case - Sullivan v. Bottling Group LLC

July 9, 2013,

In Sullivan v. Bottling Group LLC, the U.S. District Court for the Middle District of Florida explains the "undertaker's doctrine" and how it applies in Florida negligence and wrongful death cases.

315057_wall_2.jpgMr. Sullivan, an employee of Westphalia Technology, was killed in an accident at a Pepsi plant in Tampa. Pepsi had hired the company to repair a vertical lift system used for retrieving stored goods. Sullivan was crushed by the VLS and died of blunt force trauma. Ms. Sullivan, a personal representative for Mr. Sullivan, sued Pepsi and Scott Gorenc, who worked for the company, for wrongful death in state court. She claimed that the company negligently maintained and installed the safety brackets used to secure the VLS.

Pepsi removed the case to federal district court, where it filed a motion to strike the claims against Gorenc, alleging that Sullivan added him as a defendant fraudulently. Specifically, the company claimed that Sullivan included the claims against Gorenc in order to avoid having the case removed to federal court. 28 U.S.C. ยง 1441(b)(2) precludes removal where any defendant is a citizen of the state in which an action is filed. Meanwhile, Sullivan argued that Gorenc could be held liable based on Florida's "undertaker's doctrine" because he was involved in repairing the VLS.

The District Court agreed. "When a defendant alleges fraudulent joinder, that defendant bears the heavy burden of establishing by clear and convincing evidence that there is no possibility the plaintiff can establish a cause of action against the resident defendant," the court explained, citing Henderson v. Washington National Insurance, a 2006 decision by the U.S. Court of Appeals for the Eleventh Circuit. The court further advised that a plaintiff need not have a "winning case" in order to avoid fraudulent joinder, but merely one that possibly states a valid claim.

Florida law recognizes the undertaker doctrine in negligence cases, providing that a person who voluntarily undertakes to do an act that if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking is liable if he or she fails to take reasonable care.

Continue reading "Florida "Undertaker Doctrine" at Issue in Wrongful Death Case - Sullivan v. Bottling Group LLC" »

Florida Costa Concordia Case Sent Back to State Court - Scimone v. Carnival

July 2, 2013,

"This case begins with a shipwreck," the U.S. Court of Appeals for the 11th Circuit recently explained in Scimone v. Carnival, a cruise ship accident case in which the court had to make a tough decision about jurisdiction under the Class Action Fairness Act.

1343714_sunshine.jpgThe two lawsuits at issue stemmed from the 2012 sinking of the Costa Concordia, a cruise ship owned by Carnival that ran aground after striking rocks off the coast of Tuscany in Italy. A total of 23 people were killed in the accident and scores more were injured. Two groups of passengers - composed of 56 and 48 individuals respectively - filed actions against Carnival, alleging negligence and other tort claims.

Although the actions were originally filed in state court, the company removed both matters to a federal district court in Miami pursuant to CAFA. The law provides that a "mass action" - one involving 100 or more claimants and tried jointly - may be removed to federal court if it meets certain conditions. The plaintiffs later sought to remand the cases back to state court, after Carnival moved to have both actions dismissed, arguing that the matters did not qualify as a mass action.

The district court ruled that removal under CAFA was not appropriate because neither or the cases involved 100 or more plaintiffs. The 11th Circuit agreed on appeal. "Under the plain language of CAFA...the district court lacked subject-matter jurisdiction over the plaintiffs' two separate actions unless they proposed to try 100 or more persons' claims jointly," the court explained. While the two cases involved common fact issues, given that they both arose from the same accident, the court said that the two groups of plaintiffs could not be combined in order to reach the 100 mark.

The court further noted that neither the plaintiff groups nor the state court had indicated that the two cases should be combined and tried jointly. Thirty nine plaintiffs were originally party to one single action against the company. When another 65 sought to join the action - which would have brought the total plaintiff number to 104 - they voluntarily dismissed the complaint and split into two groups before filing separate complaints. "Neither group of plaintiffs ever moved the state court to consolidate those two separate lawsuits or hold a joint trial on any component (e.g., liability) of the two groups' claims," the court explained.

Continue reading "Florida Costa Concordia Case Sent Back to State Court - Scimone v. Carnival" »

Business Owner Shot by Police Can Proceed with Negligence Claims Against County - Rodriguez v. Miami-Dade County

June 26, 2013,

Suing a local, state or federal government can be a complicated matter that raises a number of particular legal issues, including sovereign immunity. Governments are generally immune from suit in many instances. In Florida, immunity extends to actions by police responding to "emergency" situations. The state's high court explains in Rodriguez v. Miami-Dade County, however, that the circumstances under which this immunity applies are very limited.

970702_police_line.jpgJose Rodriguez was shot by a Miami-Dade police officer Hernandez responding to a burglar alarm at the business that Rodriguez owned. According to Rodriguez, he drove to the business after being alerted to the alarm. When he arrived, he got out of his car with a gun and was shot four times by Hernandez. The officer allegedly did not give any warning before firing. Although a video camera recorded some of the incident, it did not record the shooting as both Rodriguez and Hernandez were out of the camera's view at the time.

Rodriguez sued the county, alleging two counts of negligence: one based on the wrongful shooting and the other for negligent retention and supervision of Officer Hernandez.

A trial court denied summary judgment for the county on the first count, but granted it on the second count. The trial court said it could not determine whether the county was entitled to sovereign immunity under the so-called "police emergency" exception. After granting the county's petition for writ of certiorari, Third District Court of Appeals found that the county was entitled to sovereign immunity because the shooting occurred during an emergency situation in which police officers were thrown into action by the acts of others and "were required to make split-second choices that could result in harm either way."

The Florida Supreme Court quashed the Third District's ruling on further appeal. The Court first held that the county's sovereign immunity defense could not be reviewed by appellate courts via a petition for writ of certiorari because there was no risk of irreparable harm to the county by the trial court's ruling and essential facts remained in dispute. The Court pointed out that the trial court's order was "non-final" in that the county was free to re-argue its sovereign immunity defense at trial and in later motions. As a result, the Court said certiorari review was not warranted in this case.

Continue reading "Business Owner Shot by Police Can Proceed with Negligence Claims Against County - Rodriguez v. Miami-Dade County" »

Court Takes on Falling Palm Trees and Gross Negligence - Pyjek v. Valleycrest Landscape Development

June 20, 2013,

In Pyjek v. Valleycrest Landscape Development, Florida's Second District Court of Appeals explains the gross negligence requirement in cases in which an employee injured on the job sues a company other than his or her employer for damages.

1340042_palms_1.jpgMr. Pyjek was injured while working for a subcontractor fencing company on a residential development project in Fort Myers. He was cutting aluminum fence material when he was struck by a falling palm tree. Pyjek sued Valleycrest, another subcontractor responsible for planting palm trees at the project, for negligence.

A trial court ruled that Valleycrest was immune from suit under Florida's workers' compensation law, Section 440.10(1)(e)(2), Fla. Stat. (2007). The statute provides that contractors and subcontractors are immune from suit by an employee of another subcontractor for injuries sustained on a construction project, provided that: a) the employee's company has workers' compensation insurance for its own employees; and b) the injury was not caused by the other company's gross negligence.

On appeal, however, the court said triable issues remained to be resolved as to whether Valleycrest was grossly negligent in its planting of trees. "These were no mere shrubs," the court observed. "The palm trees were approximately eighteen to thirty feet tall." Equally large were the factual disputes remaining to be resolved, according to the Court.

In particular, Pyjek argued that the same tree that struck him had fallen earlier the same day after a gust of wind. The tree fell again shortly after the company's workers replanted it, according to Pyjeck. Knowing that the tree had just been knocked over and that conditions were windy, Pyjek claimed that the company should have dug deeper holes in replanting it and used additional supports in restaking it. Indeed, Pyjek's expert testified that Valleycrest should have taken additional precaution knowing that the tree had already fallen once.

Continue reading "Court Takes on Falling Palm Trees and Gross Negligence - Pyjek v. Valleycrest Landscape Development" »

High Court Says Wife of Husband Who Died After Suit Can Claim Wrongful Death - Capone v. Philip Morris

June 13, 2013,

A personal injury lawsuit typically concerns a person who suffers some sort of non-fatal injury in an accident or other incident, while a wrongful death action centers around claims on behalf of a person who ultimately dies. So what happens when a person files a personal injury action and then later dies as a result of those injuries? The Florida Supreme Court addressed the issue in Capone v. Philip Morris.

1191091_sunset_on_beach.jpgMr. and Mrs. Capone sued Philip Morris and other cigarette companies under theories of negligence, strict liability and fraud, claiming that their products caused Mr. Capone's lung cancer along with other cardiovascular maladies. Mr. Capone later died while the matter was pending, and his wife sought to amend the complaint to substitute herself as the plaintiff and allege an additional claim for wrongful death. After protracted litigation, a trial court denied the motions to amend and substitute. The Third District Court of Appeals affirmed the decision, finding that Mr. Capone's personal injury suit was automatically extinguished by virtue of his death and therefore could not be amended.

The Florida Supreme Court reversed the decision on appeal, however. "At issue in this case is the interplay between two different causes of action under the Florida Statutes: the survival action statute, section 46.021, Florida Statutes (2008), and the Florida Wrongful Death Act," the court explained. The survival statute provides that "no cause of action dies with the person." The Wrongful Death Act, on the other hand, states "[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate."

Reading both laws together, the court found that Ms. Capone was not required to file a new, separate wrongful death action against Philip Morris. "[T]he express intent of the [Wrongful Death] Act is to shift the losses of survivors to the wrongdoer," the court observed, noting that the statute indicates elsewhere that it is to be "liberally construed" in order to meet this intent. Thus, the court ruled, it would be counter to the purpose of the Act to allow a defendant to evade liability for injuries caused simply because the plaintiff had the misfortune of passing away after filing suit.

In other words, the court concluded that a personal injury claim does not "self-destruct like the secret message on a rerun of 'Mission Impossible,'" upon the plaintiff's death, quoting the Second District Court of Appeals' 2003 decision in Niemi v. Brown & Williamson Tobacco Corp.

Continue reading "High Court Says Wife of Husband Who Died After Suit Can Claim Wrongful Death - Capone v. Philip Morris" »

Court Says Long-Arm Jurisdiction Does Not Extend to Bahamas Cruise Excursion Operator - Zapata v. Royal Caribbean Cruises

June 6, 2013,

In Zapata v. Royal Caribbean, the U.S. District Court for the Southern District of Florida explained how a person suing for personal injury can establish that a court has jurisdiction over someone who doesn't reside in the Sunshine State.

1343717_sunshine.jpgMs. Zapata died in a tragic bell diving accident during an excursion while she and her husband were vacationing aboard the Explorer of the Seas cruise ship. The couple was in the Bahamas diving with a small group of passengers when Ms. Zapata's helmet partially filled with water and she began to asphyxiate. Mr. Zapata urged Greg Hartley, the owner of the excursion company (Hartley), to bring his wife to the surface. Hartley then instructed his son to give Ms. Zapata oxygen, but the spare tank was empty.

Mr. Zapata, as personal representative of his wife's estate, sued Royal Caribbean - the cruise ship company - and Hartley for negligence in federal court in Florida. The complaint asserted that Royal Caribbean operated a joint venture with the excursion company, which operated as its agent. Specifically, Zapata pointed out that Royal Caribbean advertised the excursion on its website, in its promotional material and at an excursion desk aboard the Explorer of the Seas and that the company sold the Zapatas the tickets for the excursion.

Hartley sought to dismiss the claims against it, arguing that the Florida court did not have personal jurisdiction over it because it is located in the Bahamas. The Southern District agreed.

As the court explained, the Florida "long-arm" statute - section 48.193 Florida Statutes - explains personal jurisdiction over nonresidents. "A nonresident defendant may be subject to 'specific' personal jurisdiction under subsection 48.193(1) if the person commits any of the acts enumerated in the subsection within Florida and the cause of action arose from the act," the court instructed. "Alternatively, a nonresident defendant may be subject to 'general' personal jurisdiction under subsection 48.193(2) if he engages in 'substantial and not isolated activity' within the state."

Continue reading "Court Says Long-Arm Jurisdiction Does Not Extend to Bahamas Cruise Excursion Operator - Zapata v. Royal Caribbean Cruises" »

Court Reverses Decision in Miami Beach Diving Accident Case - Downs v. U.S. Army Corps of Engineers

May 30, 2013,

In Downs v. U.S. Army Corps of Engineers, the U.S. Court of Appeals for the 11th Circuit explains that a person suing for negligence in Florida must show that the defendant owed the person a duty of care and that breach of this duty caused the person's injury.

933311_photo.jpgMr. Downs was injured in a tragic accident when he dove in shallow ocean waters on Miami Beach in April 2003. According to the Court, Downs had been drinking the previous evening. He and a friend went to the beach in the early morning hours and Downs was injured when he struck a rock after diving head first into the ocean. Downs fractured a vertebra in the accident and was rendered quadriplegic.

Downs sued the Corps of Engineers under the Federal Tort Claims Act, alleging that it negligently placed the rock on the beach as part of a beach re-nourishment project operated jointly by the Corps and Miami-Dade County in 1972.

The portion of the beach where the accident occurred was part of the Dade County Beach Erosion Control and Hurricane Protection Project in which fill material was dredged from offshore locations and added to portions of the beach. The Corps awarded a contract for the work to a contractor called Construction Aggregates. The contract terms required Construction Aggregates to remove all rocks larger than two inches in diameter from the top twelve inches of beach fill.

A district court ruled that the Corps was 15% liable for Downs's injuries, while Miami-Dade was liable for another 15% and Downs himself liable for 50%. Florida. The City of Miami Beach shared the remaining portion of liability, according to the lower court. The Corps was ordered to pay Downs nearly $2 million in damages.

Continue reading "Court Reverses Decision in Miami Beach Diving Accident Case - Downs v. U.S. Army Corps of Engineers" »

Florida Court Says Pilot Training Negligence Claim Can Move Forward - Newman v. Socata

May 24, 2013,

In Newman v. Socata, the U.S. District Court for the Middle District of Florida explains that a state ban on so-called "educational malpractice" claims does not extend to negligence and breach of contract allegations against a private airplane pilot training company.

1392402_various_aircraft_4.jpgMr. Milot was killed along with two passengers in a tragic plane crash when the Socata TBM 700B aircraft he was piloting missed an approach at a regional airport in Massachusetts. The crash appeared to be caused by a "torque roll," which the court described as "a roll to the left upon an increase in engine power such as would occur during a missed approach." The TBM 700B was known to have a propensity for torque rolls. The personal representative of Milot's estate sued Simcom, the company that trained Milot to fly the planes, alleging that it did not warn Milot that increasing engine power during an approach could cause a torque roll.

Simcom countered by arguing that the breach of contract and negligence claims were simply dressed up educational malpractice claims, which are barred in Florida. The Middle District disagreed, denying the company's motion to dismiss the suit and finding that the ban on these claims does not extend to private, for-profit companies whose alleged breach of a duty owed to a student turned fatal.

While the state Supreme Court has not directly ruled on the issue, the court looked to prior decisions to conclude that the educational malpractice ban is limited to more traditional school settings. "The Supreme Court of Florida would likely refuse to recognize educational malpractice claims against academic institutions--public or private--arising from their delivery of general academic instruction," the court said.

The court further observed that similar bans have been extended to claims of breach of duty in instructing pilots in some states (Missouri and South Dakota), while others have declined to apply the ban under the same circumstances (Texas and New York).
In Dep't of Health & Rehabilitative Servs. v. B.J.M., the Florida Supreme Court cited policy reasons related to the separation of government powers in denying a negligent training and education claim against a state agency. In other words, according to the B.J.M. court, it was not appropriate to second guess resource allocation decisions by a state agency. The B.J.M. court also cited other public policy considerations, such as not wanting to micromanage the education process and the lack of readily acceptable duty of care standards.

Continue reading "Florida Court Says Pilot Training Negligence Claim Can Move Forward - Newman v. Socata" »

Woman Injured in Slip and Fall at Miami Airport Has to Show County was Aware of Slick Condition - Kenz v. Miami-Dade County

May 17, 2013,

In any Florida personal injury case, each claim contains several factual elements that the person suing must prove in order to recover damages. In Kenz v. Miami-Dade County, the Third District Court of Appeals explains one important element of a negligence claim against a business owner for an accident on the owner's property: that the owner knew or should have known of the dangerous condition that caused the accident.

1051504_caution_wet_floor.jpgThe plaintiff was injured in a slip and fall accident at Miami International Airport in May 2008. She sued Miami-Dade County for negligence, alleging that she sustained permanent injury as a result of the fall.

Florida law provided at the time she filed suit that a person injured in an accident caused by a "transitory foreign substance in a business establishment" need not prove that the business knew or should have known of the foreign substance when the accident occurred. The law was amended in July 2010, however, requiring a person suing for a slip and fall accident to show that the business knew or should have known about the dangerous condition and failed to take steps to remedy it.

Agreeing with the County, a trial court ruled that the new law should be applied retroactively to the plaintiff's suit. Although it meant a higher bar for the plaintiff to cross in order to succeed in her claim, the trial court said application of the new law was appropriate because the statute at issue was procedural, rather than substantive. The trial court later granted summary judgment to the County, finding that the plaintiff was unable to show that it had actual or constructive knowledge of the slippery floor.

The Third District agreed on appeal. The court explained that the question came down to whether the new law was substantive or procedural. A procedural law may be applied retroactively, while a substantive change may not. "[T]his Court has stated that substantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights," the court explained, quoting its 2010 decision in Weingrad v. Miles.

Continue reading "Woman Injured in Slip and Fall at Miami Airport Has to Show County was Aware of Slick Condition - Kenz v. Miami-Dade County" »

Proving Gross Negligence in Florida Worker's Compensation Cases - Villalta v. Cornn International

May 7, 2013,

Worksite accidents happen all the time and occasionally result in very serious injuries. In Villalta v. Cornn International, Florida's First District Court of Appeals explains the gross negligence standard, an important issue in deciding who may be liable in the event of a work injury.

1330873_courthouse.jpgMr. Villalta was working as a drywall finisher for L&W Drywall Services on a project on which the company was a subcontractor when he was tragically killed after falling off a scaffold. The personal representative of his estate sued a number of companies for wrongful death, including L&W and Tropic Aire, an HVAC company that was also working as a subcontractor on the project.

Florida law provides that contractors and subcontractors are immune from suit by an employee of another subcontractor for injuries sustained on a construction project, so long as the employee's company has workers' compensation insurance for its own employees and the injury was not caused by the other company's gross negligence.

The representative claimed that Tropic Aire acted with gross negligence by failing to properly cover a "cut-out" in the floor where Villalta was working or warning him of the danger that the "cut-out" presented. The trial court disagreed, however, finding that the representative failed to present evidence of gross negligence. As a result, the court granted summary judgment to Tropic Aire.

Reversing the decision on appeal, the First Circuit said the trial court improperly weighed the evidence. "[T]he line between simple and gross negligence is often uncertain and indistinct, and in such circumstances the question of whether negligence is simple or gross should ordinarily be resolved by the jury," the court explained. In addition, negligence evidence must be viewed in the light most favorable to the non-moving party (the representative) at the summary judgment stage, according to the court.

As the First District explained, the gross negligence standard encompasses a variety situations in which there is a "a clear and present danger of serious harm," a responsible party is or should have been aware of the danger and the party nevertheless acted in "conscious disregard" of the danger.

Continue reading "Proving Gross Negligence in Florida Worker's Compensation Cases - Villalta v. Cornn International " »

Loss of Earnings in Florida Medical Negligence Cases - Estrada v. Mercy Hospital

April 29, 2013,

Florida law generally allows a person injured by another's negligence to recover damages for the wide variety of economic and non-economic harms that may result. In Estrada v. Mercy Hospital, Florida's Third District Court of Appeal explains that the damages award may include lost earnings for a person whose life is expected to be cut short due to the injury.

1109760_band_aidbandage_background.jpgAfter being diagnosed with Stage 3 breast cancer in September 2010, Ms. Estrada sued Mercy Hospital and Dr. Amisha Agarwal for negligence, claiming that Agarwal failed to report evidence of micro-calcifications during a routine mammogram more than two years earlier. The defendants admitted liability and the parties agreed to have an arbitration panel determine the damages incurred by Estrada as a result of the negligence.

Estrada argued that, because her life expectancy had been "severely curtailed" as a result of the hospital's negligence, she was entitled to damages covering lost earnings over the course of her "pre-injury" life expectancy (more than 82 years). While the panel heard such evidence, it ultimately rejected Estrada's assertion. The panel awarded her more than $1 million in damages, a figure that included $365,000 in lost earnings for time that she would be unable to work because of the cancer during her shortened life expectancy.

The Third District reversed the decision on appeal. The court held that Estrada was entitled to damages for lost earning capacity for the years following her expected death until the time she would have likely otherwise died, had the cancer been diagnosed earlier. "It is the function of an award of damages to place the injured party in an actual, as distinguished from a theoretical position, financially equal to that which he would have occupied had his injuries not occurred," the court explained, quoting the Florida Supreme Court's 1950 decision in Renuart Lumber Yards v. Levine. Indeed, Section 766.202(3), Florida Statutes (2012), which governs arbitration awards in medical negligence cases, defines "economic damages" as "financial losses that would not have occurred but for the injury giving rise to the cause of action."

The court rejected the hospital's assertion that allowing recovery for damages incurred after Estrada's expected death would wrongly compensate her heirs for the injury, rather than Estrada herself. While the claim was for negligence - it was not a wrongful death action on behalf of Estrada's family - the court noted that Florida law bars a subsequent wrongful death action related to injuries for which a person has already been compensated in a personal injury claim. As a result, the arbitration panel should have considered damages caused by the defendants' negligence that may be incurred following Estrada's death, according to the court.

Continue reading "Loss of Earnings in Florida Medical Negligence Cases - Estrada v. Mercy Hospital" »