Articles Posted in Negligence

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With summer on the horizon, Miami families will flock to swimming pools for recreation, exercise, and leisure activity.  Although swimming pools are popular amenities in many apartment complexes, condominiums, and homeowners’ communities, residents and their guests are sometimes endangered by negligence.  The forms of unreasonably careless behavior that can lead to drowning deaths, or near drowning incidents that cause permanent brain damage, take many forms, such as inadequate security, unmaintained lifesaving equipment, missing drain covers, unsecured gates, or missing fencing.  In this blog post, our Miami drowning death attorneys review a decision from Florida’s 5th District Court of Appeals which demonstrates the challenges drowning victims frequently face when pursuing compensation for wrongful death.

In Southern Owners Insurance Company v. Cooperativa v. De Seguros Multiples, etc., the parents of a seven-year-old boy brought a wrongful death lawsuit following the drowning of their child left in the care of a homeowner within a private gated condominium community.  The boy was swimming in a pool shared by members of the association at the time of his drowning.  The mother of the boy sued the condominium association alleging theories of negligence and negligent supervision.  The trial judge granted summary judgment in favor of the plaintiff based on the conclusion that the association’s liability coverage extended to the owners of individual condo units.  The judge relied on a clause providing that the coverage of the association applied to individual members when liability was the product of repair, maintenance, or ownership of areas of the premises not reserved for an individual member’s exclusive use or individual unit.  Continue reading →

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Our personal injury attorneys in Miami are very familiar with the challenge of proving negligence in a lawsuit can be complicated, but the doctrine of vicarious liability can ease this process considerably.  In this context, vicarious liability refers to situations where the negligence of an individual is attributed to a third-party who was not driving a vehicle involved in the accident, such as an employer or minor’s parent.  Many car accidents involve at-fault drivers who lack insurance or assets to pay a judgment or settlement.  When situations like this arise, proof of liability of a third-party based on the theory of vicarious liability can mean the difference between being fully compensated for all injuries and needing to pay hospital bills, vehicle repair costs, and other damages out of pocket.  Although vicarious liability constitutes a valuable litigation strategy for many Miami car accident victims, the specific facts of a collision can make the task of proving that a third-party should be vicariously liable extremely difficult.

In this blog, our personal injury attorneys review the 1st DCA decision in Depriest v. Greeson that considered the complex issue of the vicarious liability of the estate of a vehicle owner.   The daughter of the car owner was operating the car at the time of the collision.  She was determined to be at-fault for causing the accident.  The plaintiffs, who were involved in an initial head-on collision, were waiting for assistance when the daughter collided with their vehicle.  The plaintiffs contended the second impact caused further injury and vehicle damage.  A lawsuit was filed against the estate of the owner of the vehicle, who was deceased at the time of the accident. Continue reading →

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Falls in grocery stores, restaurants, malls, and other types of businesses can have a devastating impact on victims.  Customers shopping in a grocery store probably assume they will receive compensation if they fall and suffer injury.  However, litigation of slip and fall accidents in Florida poses special challenges that make it important to seek legal representation from an experienced Miami personal injury lawyer.  In this article, our attorneys review a recent case that demonstrates the special obstacles to proving liability in a Florida business.

The task of establishing the liability of a business for a fall involving a customer became more difficult because of changes in Florida law when F.S. 768.0755 was enacted.  The law included the requirement that a plaintiff in a lawsuit involving a fall on a transitory foreign substance must prove the owner of the property/business had actual or constructive knowledge of the hazardous condition and that the owner/business failed to take adequate remedial action to protect the injury victim.  Actual knowledge is self-explanatory, such as when the business/owner observes the hazard or receives a report from an employee.  Constructive knowledge involves a more complicated factual analysis.  The circumstances and facts must support a finding that the owner/business would have been aware of the hazard with the exercise of reasonable care.  The most common way to prove constructive notice is to establish that the hazard has been present long enough that ordinary care should have led to its discovery or that the situation is so common the hazard was foreseeable. Continue reading →

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Our personal injury lawyers frequently represent shoppers who trip and fall when visiting shopping malls, grocery stores, restaurants, and other businesses or commercial properties held open to the public.  Owners and parties in possession of business property held open to the public have a legal duty to keep the premises in reasonably safe condition for “invitees,” which includes customers, suppliers, maintenance people, and others engaged in business purposes.  This duty is accompanied by a duty to warn “invitees” of latent (non-obvious) hazards that the owner or party in possession knows or should know exist that are not open and obvious.  Even if the hazard is open and obvious, Florida appellate courts have not excused the duty to mainain the premises in a reasonably safe condition.  Knowledge of the hazard includes actual knowledge or constructive knowledge based on factors that should have given notice with the exercise of reasonable care.  An important factor is the duration of time the hazard has been present.

A recent decision from the Florida 3rd DCA in which an invitee slipped on rebar in the parking lot of a shopping mall provides a primer on these basic principles of Florida trip and fall law.  In Grimes v. Family Dollar Stores of Florida, Inc., the injury victim attempted to use a short cut through a landscaped island that used re-bar as ties downs.  Maintenance of these areas was performed by an outside company hired by the owner and commercial tenant.  The trip and fall victim suffered injury when taking the shortcut where he tripped on re-bar that was not tied to any of the vegetation.  When the plaintiff filed her lawsuit for injuries suffered to her knee, she alleged the owner and commercial tenant failed to maintain the premises in a safe condition, warn of the latent hazard, and remedy the hazardous condition.  The trial court granted summary judgment for the defendants relying on an earlier decision involving a fall after cutting through a parking lot.  In the prior case, the injury victim tripped over a root when cutting through a landscaped area of the parking lot. Continue reading →

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The Jones Act (“the Act”) is a federal law passed by Congress in 1920 designed to protect sailors who suffered injuries or fell ill during a voyage. The Act gives seamen an opportunity to sue their employers for damages if they are injured due to their employer’s negligence. The common law rules of maritime law obligate a vessel’s owner to care for and provide for the safe passage and medical attention for a sick or injured seaman. Furthermore, maritime law provides for the care of seaman from harm caused by ships that were not seaworthy. The injured seaman has an option, therefore, to bring a suit in admiralty or under the Jones Act. In certain circumstances, the sailor has the opportunity to seek punitive damages.

As Miami Jones Act attorneys we have seen cases like the case of Atlantic Sounding v. Townsend. This case originated in Miami and made its way to the United States Supreme Court. The question in Atlantic Sounding was whether a sailor who suffered injuries during a voyage could sue his employer for punitive damages for a willful failure of his employer for refusing to pay for the seaman’s maintenance and cure. In this case, the seaman fell on a steel deck while working as a deckhand on a tugboat. The seaman injured his arm and shoulder in the fall. The employer refused to pay maintenance and cure as provided for by maritime law and terminated the seaman’s employment. The seaman filed sued the tugboat company in United States District Court in Miami. The case then went to the United States Supreme Court for a final decision. Continue reading →

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In Florida personal injury cases, an injured person can recover damages if two separate forces caused harm. The legal theory is known as the concurring cause theory. The concurring cause theory surfaces in many types of cases. For example, the concurring cause theory appears in medical malpractice cases, products liability cases, and sometimes in car accident cases. However, our personal injury attorneys report that a Florida Court of Appeals recently analyzed the rule when used in trial accusing tobacco companies of causing the wrongful death of a Florida resident.

As experienced Miami personal injury lawyers, we have seen cases which we used the concurring cause theory to maximize our client’s recovery like the plaintiff did in Phillip Morris U.S.A., Inc. v. Tullo. The plaintiff was the wife of a man who died from lung cancer. He was a life-long smoker of various brands of cigarettes. The jury found the tobacco companies liable for the lung cancer. The plaintiff argued that the tobacco companies were responsible because the decedent was a smoker and the tobacco companies knew cigarettes were highly addictive from the high amounts of nicotine contained in them. The tobacco companies countered by arguing that the plaintiff’s husband was responsible for his lung cancer for failing to quit smoking.  Continue reading →

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A July 2016 decision by the Florida Court of Appeals demonstrates why you need highly skilled, experienced, and professional attorneys representing you if you suffered personal injuries through no fault of your own.  The trial judge allowed a bio-mechanical expert to testify about the velocity change in an accident and forces applied to the human body in an accident.  That is only part of this story. The attorney’s behavior at that trial fell measurably below how an attorney should act. South Florida personal injury attorneys Greenberg, Stone, & Urbano received an AV rating from Martindale-Hubbell for their professionalism and success.

The plaintiff in the case suffered injuries when a truck traveling in the same lane of traffic as she hit her car as she turned into her driveway.  The driver of the truck claimed that she swerved, and he could not avoid her. The plaintiff claimed permanent injuries to her shoulder, neck, and back as a result of the crash. The jury returned a verdict that the defendant truck driver was not negligent in causing the accident. The plaintiff appealed the jury verdict.

The plaintiff complained that a biomechanical expert testified at trial about the change in velocity of the cars at the time of the crash and how that change in velocity effects the human body. Change in velocity is called “delta-v.” Delta means change and “v” stands for velocity.  The change in velocity causes physical forces to be applied to the body. Courts allow biomechanical experts to opine how the changes in velocity affect the severity of the impact of the vehicles.  Courts do not allow a biomechanical to testify that an accident could or could not have caused certain injuries to be permanent because they lack medical training. Biomechanical experts can, however, give an opinion as to the car crash caused the injury. The plaintiff lost this argument on appeal. The appeals court ruled that the defendant’s biomechanical expert testified properly. The appeals court reversed the case on other grounds. Continue reading →

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Our personal injury attorneys want to call attention to a recent decision by the Supreme Court of Texas that presented a good news-bad news scenario for a plaintiff who alleged her husband died because of postmortem medical malpractice.  While the court’s ruling in the case might well open the door to medical malpractice claims for errors or omissions that occur after a patient has died within the state, the plaintiff in the wrongful death action ended up having her case barred by the statute of limitations.

In other words, our Florida medical malpractice attorneys note that the court’s analysis was potentially beneficial to future plaintiffs, but the widow, in this case, might receive nothing for the harm suffered by her husband.

In the case of Christus Health v. Carswell, the husband of the plaintiff was admitted to the defendant hospital with complaints of severe pain.  A doctor at the facility initially prescribed narcotics, but they were discontinued when the patient experienced an adverse reaction.  However, a subsequent medical provider re-initiated the narcotics after the patients again complained of intense pain.  The patient died a short time later. Continue reading →

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Medical malpractice claims constitute a significant number of the negligence actions filed in Florida state courts. The types of lawsuits are complex in nature and may invoke statutory provisions that govern the rights and obligations of parties involved. Because Florida statute tightly regulates medical malpractice claims, statutory definitions are critical, and as the case below illustrates, such definitions may determine whether plaintiffs can move forward with their claims.

In Townes v. National Deaf Academy, LLC, a patient in a residential treatment facility required a leg amputation after she was put in a disciplinary hold by a care provider at the facility. The place in question operated as both a residential treatment facility and a school for autistic, hard of hearing, or deaf individuals who possess behavioral and psychiatric conditions. The facility staff consists of nurses, therapists, and psychiatrists who provide medical and educational services. The patient in question suffered from multiple mental disabilities, such as post-traumatic stress disorder (PTSD), bipolar disorder, and impulse control disorder. As part of the patient’s care plan, staff members implemented Therapeutic Aggression Control Techniques where they restrained her physically after senior employees made a determination that such techniques were warranted after the patient experienced a behavioral episode. Continue reading →

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Parents everywhere strive to ensure their children are safe at all times, which includes selecting an appropriate car seat for young children.  However, even the most well intentioned parents can make critical mistakes when installing their child’s car seat.  Car seat installation mistakes can leave your child vulnerable to devastating injuries in the event of a car accident.  The following is a look at some of the most common car seat installation errors:

  1. Seat too loose: Many parents simply do not install their child’s car seat tight enough.  To test your seat, grab it at the base with two hands and attempt to move the seat.  If it moves more than one inch to the left, right, or forward, then it needs to be tightened.  A loose seat can crash into the back of the front seat in the event of a crash, injuring your child’s head or other part of the body.
  2. Facing forward too early: Some parents are in a rush to turn their infant’s car seat forward facing.  While parents might be anxious to see their child’s face while driving, safety organizations now recommend that children remain rear facing until at least two years of age, if not even longer.  Rear facing offers superior protection for the neck, back, and spine of young children.
  3. Selecting the wrong seat: It is also important that you research potential car seats and select the right one.  Your child will need to start out life in a rear facing car seat that meets crash test standards.  At around one year or sooner, your child should move into a rear facing convertible car seat.  At two or later, your child can transition to forward facing in their convertible seat.  Eventually, your child ages four or older can move into a booster seat where they will remain for some time.  Consult with a car seat safety technician if you have questions as to what seat is appropriate for your child.
  4. Harness is too loose: It is understandable that parents of young children are hesitant to place anything too tight on their infant’s or young children’s bodies.  However, it is essential that you adequately secure your child’s harness before setting off on the road.  A child who is loose in his or her harness can come out of the seat in the event of a crash.
  5. Not using a booster seat: Children between 40 and 80 pounds and up to 4’9” should ride in a booster seat. A booster seat is necessary to lift the child up to the level so that the seat belt fits him or her correctly.  Keep your child in a booster seat as long as possible so they are protected.

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