South Florida Injury Law Blog
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It seems these days that before you do anything, whether it’s renting a car or taking a cruise, you have to sign a mountain of paperwork signing away rights that you may not have even known you had. In Gillette v. All Pro Sports, Florida’s Fifth District Court of Appeals explains that these and other types of waiver agreements must be sufficiently clear in order to be enforceable.

Ms. Gillette was injured in a go-kart accident at a facility in Orange City owned and operated by All Pro Sports. She sued the company for negligence, alleging that an All Pro employee increased the speed of the go-kart while she was using it. This, according to Gillette, caused her to lose control of the vehicle and crash.

go-kart-427574-m.jpgA trial court granted the company’s motion to dismiss the lawsuit, finding that Gillette waived her claims by signing a “waiver and release” form prior to using the go-kart. Among other provisions, the document stated that Gillette understood that the go-kart course contained curves that “require a degree of skill and responsibility to navigate safely” and that she had the necessary skill to operate the go-kart safely. She also acknowledged that she “could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inactions of another driver” and that she “freely and knowingly” assumed this risk. The form further stated that Gillette was agreeing to take “full responsibility for any claims or personal injury, death, or damage to personal property” related to her use of the go-kart.
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Premises liability is the legal theory under which a property owner may be held liable for damages caused to visitors and others who are injured by the owner’s failure to keep the property in a reasonably safe condition. In Wolf v. Sam’s East, Florida’s Fourth District Court of Appeals explains that an owner’s duty to maintain the premises has it limits, however.

exposed-tree-roots-1430311-m.jpgMr. Wolf was injured in an accident in a Florida Sam’s Club parking lot when he tripped over a tree root. Wolf, who was visiting the store to make a purchase, said he noticed trees in landscape areas scattered across the lot, but hadn’t taken note of the roots before he fell. Those areas – also comprised of dirt and mulch – were a few feet wide and not curbed, but had concrete walkways allowing visitors to cross them without actually stepping on the landscape areas themselves. Wolf was not on a walkway when that accident happened.

He later sued Sam’s, claiming that the company failed to keep the parking lot in a reasonably safe condition by allowing the tree roots to grow unruly above the ground in the landscape areas. The trial court ultimately granted summary judgment to Sam’s, finding that Wolf was solely responsible for his injuries because he chose to walk directly across the landscape area, rather than using the concrete walkway.
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In Cain v. Shell Oil, the U.S. District Court for the Northern District Court explains the circumstances under which a property owner may be held liable for a crime committed on the premises by an unrelated third party.

street-light-830618-m.jpgMr. Cain was shot a number of times during an early morning incident at a Circle K gas station and convenience store in Tallahassee. Cain was at the store to fill his car with gas when a gun fight erupted in the Circle K parking lot. He later sued Circle K for premises liability.

Florida law provides that a property owner may be held liable for a crime committed on the property by someone other than the owner, if the person suing can show that the crime was “foreseeable.” Section 768.0705, Florida Statutes provides, however, that a business owner that implements certain security measures – including equipping a convenience store with cameras, lighting parking lots and implementing measures to limit the cash on hand and inform the public of those limits – is entitled to a presumption against liability for criminal acts committed by third parties.
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Lawsuits often come with a number of complicated issues, whether you’re suing your employer for worker’s compensation benefits, seeking damages from a shoddy product manufacturer or looking to hold a store owner liable for unsafe conditions on the premises. Suing a government entity, however, comes with its own distinct batch of hurdles. Chief among them is the principle of sovereign immunity, which the U.S. District Court for the Middle District of Florida recently described in Graham v. Scott.

1103691_alley.jpgMs. Graham sued Mike Scott, the Sheriff of Lee County, and deputy Brian Gardner following a May 2012 incident in which Gardner allegedly tased her without provocation. According to Graham, she was shopping at a local convenience store when Grander and another deputy stopped her and demanded to search her. Graham refused and Gardener responded with the taser. She wasn’t searched or arrested and wasn’t considered a suspect in any investigation, according to the Court.

In addition to a civil rights claim under 42 U.S.C. Section 1983, Graham also alleged claims against Scott for battery, negligent training and supervision and false imprisonment, asserting that he should be held vicariously liable for Gardner’s actions. The Court dismissed the negligent training and supervision claim, however, finding that it was barred by sovereign immunity.
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Worksite injuries are not only serious matters that can cause severe injury and prevent employees from returning to the job, they also often raise complicated legal issues as to the relationship among workers and employers. In Gonzalez v. JW Cheatham LLC, Florida’s Fourth District Court of Appeals looks at one of these issues: workers’ compensation immunity.

dump-truck-1-861256-m.jpgMr. Gonzalez was injured in a September 2009 dump truck accident while working on a construction project. Six months earlier, he signed a contract with Austin Tupler in which he agreed to transport materials on the site using his truck. Austin Tupler was a subcontractor on the project, working under general contractor JW Cheatham. Gonzalez was hauling a load on the project at the time of the accident and was injured when the vehicle overturned. He and his wife later sued JW Cheatham for negligence.

A trial court granted summary judgment to the company, finding that Gonzalez’s claims were barred by workers’ compensation immunity. Contractors and subcontractors are immune from suit by an employee of another subcontractor for injuries sustained on a construction project under Florida law, so long as the employee’s company has workers’ compensation insurance for its own employees and the injury wasn’t caused by the other company’s gross negligence. The law provides an exception, however, for “an owner-operator of a motor vehicle who transports property under a written contract with a motor carrier” under circumstances in which the owner-operator assumes the role of an employer. Here, the trial judge said Gonzalez qualified as Austin Tupler’s employee – and was therefore barred from suing JW Cheatham for the accident – because the service contract that he signed with the former company indicated that he was a “broker,” rather than an owner-operator.
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In Kertz v. U.S., a federal district court recently awarded six figures in damages to a woman who fractured her neck and injured her hip in an accident when she tripped and fell in the parking lot of a U.S. Post Office in Naples.

post-office-220836-m.jpgMs. Kertz, who had been sent to the post office to mail a package by her employer, noticed a five-inch tall, yellow wheel stop in the parking space where she left her car to go into the post office, according to the court, and stepped over it on her way into the facility. She didn’t see the wheel stop on her way back after dropping off the package, however, and tripped over it while reaching for her keys. A witness who saw the accident occur later said that he observed a piece of “rebar” driven through holes in the wheel stop and connecting it to the parking lot’s asphalt surface. According to the witness, Kertz told him that she tripped because the heel of her shoe got stuck in the rebar.

An inspection following the accident showed that the rebar extended nearly one-inch above the wheel stop. Ms. Howard, a U.S. Postal Service investigator, later completed an accident report in which she indicated that Kertz was injured when she tripped over the rebar. On Howard’s direction, a custodian photographed the scene and then used a hammer to pound the rebar below the wheel stop’s surface.
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Florida personal injury law operates under a comparative negligence system, in which negligence may be apportioned among various parties. In a lawsuit stemming from a rear end car accident, for example, a jury may find that the driver suing is 30 percent liable for the crash and that the driver being sued is 70 percent liable. In that scenario, the driver who sued would generally be entitled to an award of 70 percent of his or her damages.

key-largo-palms-and-sky-872413-m.jpgIn Hartong v. Bernhart, Florida’s Fifth District Court of Appeal explains that a plaintiff should be able to amend his or her pleadings to conform to the evidence presented at trial and ensure that the jury is instructed on the comparative negligence standard
Hartong sued Bernhart individually and on behalf of her deceased daughter, Ms. Wilkinson, alleging negligence and wrongful death. She alleged specifically that Wilkinson died of MRSA lobular necrotizing pneumonia, which Bernhart failed to identify and treat. In response, Benrhart argued that Wilkinson was comparatively negligent because she had alcohol and hydrocodone in her system at the time, which combined with the pneumonia to cause her death by limiting her ability to breathe.
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In Kostelac v. Allianz Global Corporate & Specialty AG, the U.S. Court of Appeals for the 11th Circuit examines one of the first hurdles that often arises in personal injury cases: deciding where to sue.

propeller-1428908-m.jpgMr. Kostelac was seriously injured when the Remos GX aircraft he was flying crashed in Florida. He later sued the plane’s German manufacturer, Remos Aircraft GmbH, and its U.S. distributor, Remos Aircraft, Inc., for negligence in federal court in Miami. Both companies were insured by Allianz Global under the same policy, which was issued in Germany and is written in German. Allianz denied coverage under this policy for Kostelac’s accident, however.

The companies later entered into a consent judgment with Kostelac in which they admitted fault for the accident and acknowledged that Kostelac sustained damages of roughly $2.95 million in the crash. In exchange for his agreement to not enforce the judgment, the companies assigned all of their rights and interests in the insurance policy to Kostelac. He then sued Allianz, alleging breach of contract for its denial of coverage related to the plane crash.
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Another day, another case in which a court looks at personal injury claims against a government entity. In Bussey-Morice v. Kennedy, the U.S. District Court for the Middle District of Florida explains that some of those claims are barred by sovereign immunity.

bee-1235172-m.jpgMr. Bussey died during a December 2009 encounter with police in the City of Rockledge. The officers, who were responding to a call from Wuesthoff Hospital, deployed their tasers on Bussey three to six times during the incident. He was later pronounced dead. A medical examiner said the cause of death was “cocaine excited delirium,” but also observed other conditions, including pulmonary emphysema and lung adhesions.

A personal representative for Bussey’s estate sued the city and each of the individual officers allegedly involved in the tasing in federal court, alleging claims for excessive force, battery and wrongful death due to negligent training. Granting partial summary judgment to the defendants, the District Court said the claims were barred by sovereign immunity.
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In Ramsey v. Home Depot, Florida’s First District Court of Appeal explains that a property owner isn’t required to warn visitors about conditions that are “open and obvious” and not inherently dangerous.

parking-space-1182938-m.jpgMrs. Ramsey was injured in an accident in a Home Depot parking lot when she tripped over the wheel stop at the front of the parking space where her car was parked. The 12 by 20 foot space was designated as “accessible” for disabled individuals. Ramsey later testified that she was carrying bags, a purse and her car keys when she approached the vehicle and tripped as she was trying to walk around the front of the car. She said her attention was focused on trying not to run into an accessibility sign and didn’t notice the wheel stop, which she said was painted the same color as the parking lot surface.

Ramsey sued Home Depot for negligence, alleging that the company failed to maintain the premises in a reasonably safe condition and to warn her of the hazards presented by the wheel stop. An engineer testified on her behalf at trial that placing the wheel stops in spaces designed for disabled persons made them “inherently dangerous” because they were a barrier to an otherwise flat, easily navigable surface. The trial court nevertheless granted the company’s motion for judgment. The trial judge found that any danger presented by the wheel stop was “open and obvious” and not inherently dangerous. As a result, the trial court said Home Depot had no duty to ward Ramsey of any hazard presented by the obstacle.
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