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When it comes to baseball and other spectator sports, courts have generally held that stadium owners have only a limited duty to protect vulnerable sections of fans from flying balls, bats, pucks or other game-related objects. For the most part, it has been found fans assume the risk of injury when they are hit by a foul ball or a hockey puck. baseballgame1

The idea is that if a fan chooses to sit in those closer seats, he or she assumes the risk of being struck by a flying object, and therefore has a duty to pay close attention to what’s happening so as to react quickly and prevent injury to themselves.

But a series of serious injuries suffered to sports fans in recent years has prompted a class action lawsuit that seeks to expand stadium owner duties of care and improve safety for those who patronize professional sports.

The federal lawsuit alleges an increase risk of personal injury to Major League Baseball fans when seated in unprotected areas, namely behind first and third bases, where no netting is provided. There are pitchers who are throwing harder than ever before. The design of bats causes them to more easily splinter. What’s more, there are numerous distractions, such as huge video monitors and Wi-Fi that create a host of distractions that result in fans having significantly less time to react if a foul ball comes flying their way. On top of all that, the league is undergoing an effort to speed up the pace of games to keep fans more interested so they will stay longer (and in turn, purchase more concessions).

Plaintiff alleges even when fans are paying attention, they may have little to no time to appropriately react, given the speed at which objects may fly in their direction.

Just recently, a woman sitting behind the dugout at a professional ballgame in Milwaukee was struck by a line drive and had to be transported via ambulance to a nearby hospital. In another incident at Fenway Park, a woman sitting behind third base was rushed for emergency treatment after being struck by a foul ball. Also at Fenway Park, a woman suffered life-threatening injuries after being struck in the head with a splintered bat. Although she survived, she is continuing to recover at a rehabilitation center and the extent of her permanent injuries is not yet clear.

Lead plaintiff in the class action lawsuit (which has not yet been certified by a judge) was not personally struck by an object. However, she was seated next to someone who was. At an Oakland A’s game, she was in a section of the stadium with no netting protection, and the woman next to her was injured by a foul ball.

Attorneys in the complaint cite a study conducted in 2014 by Bloomberg News, which indicated 1,750 Major League Baseball fans are hurt every single year at games. There are some who have alleged that league owners “have their head in the sand” about the serious risks.

These kinds of injuries – and even fatalities – are part of the reason the National Hockey League installed netting around each of its rinks. That was back in 2002.

For baseball organizations not to take simple, obvious steps to prevent injury and death is egregious. Our legal team will be closely following the developments of this case, as it could bolster the standard of care required by sports teams and stadium owners to their fans.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Lawsuit Seeks Better Protection for Fans From Foul Balls and Broken Bats, July 13, 2015, By Richard Sandomir, The New York Times

More Blog Entries:

Growing Number of Fort Myers Traffic Accidents Frustrates Safety Advocates, July 18, 2015, Fort Myers Injury Lawyer Blog

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When a crash occurs on government roads, it is the duty of government authorities to close the roadway in a timely manner until debris has been cleared and the site is safe for traffic. Once the roadway has been cleared for resumed traffic by authorities, the government could be liable for remaining debris left in the road, should it be the cause of a traffic accident resulting in injury.roadway4

This was the situation in Kimminau v. City of Hastings, recently weighed by the Nebraska Supreme Court.

A messy spill of food material on the road occurred as a result of a truck accident. Government employees and volunteer firefighters were called to clear the debris from the road. They did so and the road was cleared for traffic. But when an accident the following day was attributed to remaining debris from that earlier crash, the question was who was responsible.

Plaintiff sought to hold accountable the driver of the truck, the driver’s employer and local city government. The courts wrestled with the issue.

First, they looked at the specific facts of the case.

A state trooper closed a road after a crash resulted in corn mash being spilled. Both the paid and volunteer fire departments responded, and with shovels, brooms and fire hoses, moved the spilled material off the road, onto an unpaved shoulder and into a ditch.

On the police dash camera recording, these events were taped and some of the corn mash is still visibly present on the unpaved shoulder.

The truck driver was ticketed and the road was cleared for traffic.

One of the volunteer fire captains drove back to the site later that night to make sure the road was still clear.

The following day, plaintiff was driving along that road. As she passed the spot where the spill had taken place, she drifted just slightly off the road, with one of her tires briefly dipping onto the unpaved shoulder. As it did so, it came in contact with the corn mash. This caused the driver to lose control, wreck into a utility pole and suffer personal injuries.

Plaintiff was not aware of the corn mash until she came in contact with it.

In her subsequent lawsuit, she named the truck driver, truck driver employer and the city as defendants. She alleged the city had actual knowledge of the corn mash spill and negligently failed to take adequate corrective action or warn motorists of the danger. She alleged the trucker was negligent in causing the spill and failing to clean it up, and that the employer was negligent in hiring the driver, failing to adequately supervise him, and failing to take reasonable steps to remove the spill or warn motorists.

The district court entered summary judgment in favor of all defendants. It found political subdivisions were immune from litigation on this issue per sovereign immunity and the driver and his employer were cleared from liability once local officials had declared the road safe to drive.

Appeals court affirmed, but the Nebraska Supreme Court affirmed only in part, choosing to reverse in part as well.

While the state high court did find the truck driver and his employer were free from liability once local officials gave the all-clear for through-traffic, it found the government could be liable because sovereign immunity was not applicable in this case, as was waived by state statute.

Plaintiff may now continue to pursue her injury lawsuit against the local government.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Kimminau v. City of Hastings, June 19, 2015, Nebraska Supreme Court

More Blog Entries:

Bicyclist vs. Truck Accident Injuries Could be Curbed With Side Guards, July 26, 2015, Fort Myers Car Accident Attorney Blog

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All motorists are held to the same duty of care standard when operating a vehicle, and that is the duty of reasonable care. That means acting the same a reasonably prudent driver would under the same or similar circumstances.trucker

Semi-truck drivers are no different. However, there are in many ways held to a higher standard than others for several reasons. The Federal Motor Carrier Safety Administration requires truck drivers and truck companies to adhere to certain drive-time limits, weight restrictions and training requirements in order to be road-worthy. That training involves teaching truckers to use extra care, remain alert and operate at a safe speed.

In the recent case of Dakter v. Cavallino, before the Wisconsin Supreme Court, the question was whether jurors wrongly held the trucker had a higher standard of care when they were asked to weigh if he’d acted as a reasonably prudent truck driver would under similar circumstances. The state supreme court held that it did not, and affirmed the $1.1 million verdict in favor of injured plaintiff and his wife.

The case arose from a truck crash that occurred in May 2008 at an intersection. Plaintiff was operating a passenger vehicle that was stopped at an intersection, preparing to turn left. Defendant driver, operating a 65-foot semi-truck, was traveling the opposite direction, preparing to go straight.

It was heavily disputed what happened next, but we know the two entered the intersection simultaneously and collided, resulting in serious injury to plaintiff.

Plaintiff then sued the driver. Prior to trial, both sides agreed that the ordinary standard of care applies to every driver. However, they disagreed about whether jurors should hear expert witness testimony regarding the special knowledge and skill possessed by drivers of semi-trucks – especially when, as in this case, the driver has more than 30 years of experience.

Trial court agreed ordinary standard of care was applicable, but noted that when it comes to semi-trailer truck drivers, a standard of ordinary care means the care a reasonable and prudent truck driver would use under similar circumstances. With this in mind, trial court allowed plaintiff’s expert witness testimony regarding truck drivers’ special knowledge and skill to be presented.

Expert witness testified to a number of points, but these two in particular were of key importance:

  • That a trucker with a  trailer requires more time to stop;
  • That a trucker operating in rainy, wet conditions must reduce his or her speed by one-third in order to ensure there is an assured clear distance in case of the need for a sudden stop.

Expert witness testified trucker was traveling too fast for conditions, and thus was responsible for the crash.

Jurors weighed this and other evidence over the course of 10 days and ultimately held trucker 65 percent responsible for the crash, and plaintiff comparatively 35 percent at-fault.

Defendant later appealed, saying that allowing the expert witness to testify and allowing the jury to consider his skill and knowledge as a trucker meant that he was held to a higher duty of care standard than he should have been.

The court rejected this argument and affirmed the verdict.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Dakter v. Cavallino, July 7, 2015, Wisconsin Supreme Court

More Blog Entries:

Windshield Devices Aim to Curb Distraction, But Some Argue They Create It, July 17, 2015, Fort Myers Truck Accident Lawyer Blog

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At Associates and Bruce L. Scheiner, Attorneys for the Injured, we laud the hard work and sacrifice of our emergency responders. That includes police, firefighters and EMS workers who routinely rush into potentially dangerous situations for the safety and well-being of others.accidentscene

This said, there was a troubling report recently released following an investigation by the Naples Daily News that raises concerns about the level of distraction with which these workers contend when they drive.

The newspaper found that more than 4,100 crashes throughout Florida in recent years were caused by distraction and involved an emergency responder. These are supposed to be the best-trained drivers in the state, and yet these workers – especially in Southwest Florida – had an especially high rate of distraction-related crashes when compared to the general public.

Reporters scoured records from 2 million Florida car accidents from 2011 to 2014. During that stretch, 977 crashes involved law enforcement officers, medics and firefighters in Lee and Collier counties. Of those, 171 were caused by distraction. That means about 18 percent of these workers were involved in distraction-related crashes, compared to about 11 percent of the general public.

Although emergency workers were rarely ever ticketed, they were deemed at-fault in at least 66 of those instances. That’s about 40 percent. The result has been some $800,000 in injury liability payments.

These figures are most likely conservative, the news outlet stated, because not all crashes involving emergency responders result in the filing of an official report. Plus, there is likely some subjectivity involved in classifying a driver as distracted. There is some suggestion that one officer may be reticent to classify another as “distracted” in a formal report, which could lead to disciplinary action.

As our injury lawyers well know, bringing a case against the state or county can be difficult. One must overcome assertions of sovereign immunity, and damages are also likely to be capped to some degree.

Tickets were issued in just seven of the cases in which emergency workers were found at-fault.

Most of the time, these drivers were distracted by something in the vehicle, such as cell phones, in-vehicle computers or passengers. One was reportedly distracted by paperwork falling from a visor. In another case, an ambulance driver rear-ended a vehicle in front of him while placing a radio microphone back onto the holding device.

Some former police officers describe the inside of a cruiser as something akin to the inside of a fighter jet, with numerous controls, machines, computers and radios.

Distractions from outside the vehicle included police distracted by other drivers running red lights, loose dogs and sun glare.

In the majority of cases, the outcome is not serious. The emergency responder struck a mailbox or caused a minor rear-end crash.

However, there have been a number of recent distracted driving cases involving these workers that had serious results.

It is worth noting emergency responders spend a lot more time behind the wheel than most drivers, so the potential for an accident in general may be higher than for the rest of the population.

Some police agencies have begun barring the use of mobile technology and wireless devices while the vehicle is in motion, but most distracted driving laws exempt emergency personnel.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Collier, Lee emergency responders have high rate of distracted-driving crashes, July 17, 2015, By Ryan Mills, Naples Daily News

More Blog Entries:

Report: Lee County Traffic Deaths on the Rise, July 15, 2015, Fort Myers Car Accident Attorney Blog

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In car accident lawsuits, it is not uncommon for both sides to present testimony from experts to prove their respective positions. Experts could range from medical doctors, who would attest to extent of injuries, causation of injuries and reasonable treatments for those injuries. Accident reconstructionists could attest to the nature and cause of the crash. Mental health experts could speak to the emotional trauma. courtroom

It’s also fairly common for insurance companies to consult the same experts over and over again. These expert witnesses are compensated for their time and travel.

This can raise questions of bias when insurers use the same witnesses repeatedly. In effect, these witnesses derive a substantial profit from testifying on a regular basis on behalf of insurance companies/defendants, and this may raise valid questions regarding the witness’s potential bias.

This can be a fair issue for plaintiffs to raise, though courts have not approached these matters uniformly and injury victims do need to be careful in calling into question the credibility of certain respected professionals.

In the recent Alaska Supreme Court case of Ray v. Draeger, stemming from an automobile accident, plaintiff sought to do just that.

According to court records, plaintiff was a passenger in a vehicle rear-ended by defendant. There had been no serious physical damage to either vehicle, as the collision had been described as low-speed, low-impact. Although plaintiff did not complain of injuries immediately after the crash, she later began to experience neck and shoulder pain.

Plaintiff underwent two dozen chiropractor treatments over the course of the next several months, at a total cost of $5,200, and also sought treatment from a physical therapist nine times in following months.

Defendant conceded liability for the accident, but disputed extent of plaintiff’s injuries and other damages.

Defendant’s insurance company paid for her defense, which filed a motion in limine asking the court to preclude any reference to the fact that defendant had liability insurance coverage. Plaintiff responded with partial opposition, saying she wanted the opportunity to question the orthopedic surgeon hired by defense to give expert witness testimony on his potential bias. Specifically, she wanted to present to the jury the fact that a “substantial” portion of his work as a medical expert was derived from insurance company referrals. This insurer in particular he had testified for numerous times.

The doctor earned $800,000 annually, of which $400,000 to $450,000 was derived from insurance company referrals and related exam work.

Trial court granted defense motion, saying plaintiff’s assertion of potential bias had minimal relevance. However, plaintiff was allowed to question expert witness on the general issue of bias as it related to the nature of his work, including whether there were financial reasons he may continue working for defendants.

Jurors heard the case and awarded plaintiff exactly $5,200 for her past economic losses and $775 for non-economic damages. She received no damage award for future economic losses.

Plaintiff appealed, and superior court ruled trial court erred in barring questioning about the extent to which he was paid for his work with the insurance company. The case was remanded for a new trial.

On appeal of that order to the Alaska Supreme Court, defendant’s argued this was improper. The state supreme court affirmed in part, finding district court had erred in barring cross-examination of the doctor on this point. However, justices ruled a new trial was not warranted because the error was harmless, as plaintiff was given the opportunity to question expert’s financial incentive for working as a witness for insurance companies.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Ray v. Draeger, July 17, 2015, Alaska Supreme Court

More Blog Entries:

Growing Number of Fort Myers Traffic Deaths Frustrates Safety Advocates, July 18, 2015, Cape Coral Car Accident Attorney Blog

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Two years ago, a 25-year-old recent University of Florida graduate was fishing on a bridge in Brevard County when he was struck by a vehicle, thrown into the water and drowned.brokencar

The driver who struck him had glanced down to check a text message.

His mother, speaking at a recent “Staying Alive on Florida’s Roadways” event lamented, “His life was not meant to be over.”

And neither are the thousands of others who die every year due to distracted driving accidents. The U.S. government estimates 3,155 people were killed in 2013 as a result of distracted drivers. Every single day, 1,155 people are injured in traffic accidents caused by drivers who aren’t paying attention. Many of those are hospitalized with severe injuries from which they may never fully recover.

Given the severe price paid for simply checking a text message or rerouting GPS, officials with the Florida Department of Transportation have announced a partnership with a large auto insurance company to tackle the issue of distracted driving on Florida roads with a new awareness campaign. It involves the installation of so-called “Safe Phone Zones” at 64 rest stops, a number of turnpike service plazas, and various welcome centers throughout the state.

The “Safe Phone Zone” signs encourage drivers to pull over in order to have a safe, convenient location to check text messages, make phone calls or access mobile applications on their smart phones.

The signs were sponsored by GEICO. They have been installed along highways leading up to each of the various facilities.

Officials note that of course, drivers were free to access these areas for this same purpose before this campaign. But the action serves as a reminder that motorists do have a safe place along stretches of highway to catch up, stay connected and get directions.

So far, more than 70 of these signs have been installed throughout the state, and more are expected in coming months.

Officials say the message is both critical and timely. FDOT reports distracted driving accidents throughout Florida have spiked by 25 percent in just the last three years. There is so much that competes for our attention, and the problem has been exacerbated in recent years by the prevalence and accessibility of SmartPhones.

Florida was one of the last states to enact distracted driving legislation, and compared to other states, it’s relatively weak.

F.S. 316.305 bans all motorists (not just novice drivers or commercial vehicle operators) from texting while driving. However, the law expressly exempts certain other uses of mobile devices, such as GPS navigation, accessing music or talking on the phone. It’s also a secondary offense, meaning a police officer can’t stop a driver solely for a texting offense. The driver has to have committed some other moving offense or crime. Plus, police aren’t allowed to access a person’s cellular device for proof of a violation unless they are involved in a crash that results in injury or death. For this reason, many police agencies have reported issuing few citations. Even those they do issue only cost a $100 fine and add no points to one’s driver’s license.

When state lawmakers fail to take such an issue seriously, drivers don’t seem apt to do so either.

These signs may not solve the problem, but they are certainly a step in the right direction.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

FDOT and GEICO Unveil “Safe Phone Zone” Signs on Florida Highways, June 1, 2015, By Tori Walker, The Ledger

More Blog Entries:

State Farm Mut. Auto Ins. Co. v. Earl – Motorcycle Accident Lawsuit, July 3, 2015, Fort Myers Distracted Driving Accident Attorney Blog

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When large trucks and bicycles collide, the potential for serious injury is very high. One of the reasons is because an individual who is on a bicycle or on foot can get thrown underneath the truck and be run over by the back wheels.bicyclist8

With an increasing number of truck vs. bicyclist and truck vs. pedestrian injuries occurring, particularly in urban areas, both municipalities and private trucking companies are taking a simple action that could help reduce the severity of these incidents. They are installing side guards on large trucks.

These metal panels run between the two sets of wheels on larger trucks, and prevent a person who is hit by a truck from falling underneath the vehicle and into the path of the rear wheels. It may not reduce the number of accidents, but it helps to decrease the chances the bicyclist or pedestrian will be killed or suffer catastrophic injury.

Side guards have already proven to be a major benefit to bicyclists and pedestrians in several European countries, where they have been mandated by the government for a number of years now.

For example, in the United Kingdom, side guards have been required on all large trucks since the 1980s. Since that time, the number of deadly, side-impact collisions between bicyclists and trucks fell by more than 60 percent. Additionally, fatal side-impact crashes between pedestrians and large trucks dropped by 20 percent.

Other places where side guards are required:

  • Japan
  • China
  • Brazil
  • All countries within the European Union

Among the countries where these devices are not required:

  • The United States

The National Highway Transportation Safety Board has twice recommended the federal government enact a measure that would require side guards on large trucks, but so far, no action has been taken.

Still, recognizing the potential benefits, a growing number of cities are putting side guards on all publicly-owned large trucks. For example in Boston, the city is beginning to install the panels on garbage trucks, dump trucks and other large vehicles owned by the city. It’s expected the side guards – at about $1,200 to $1,800 a piece – will be installed on about 230 city-owned vehicles by the end of the year.

The measure was solidified when, during a pilot program last summer, a bicyclist was struck by a city-contracted garbage truck that had been outfitted with side guards. He was still seriously injured, but he did not fall underneath the truck, which likely saved his life. City council approved the new ordinance mandating the guards a few months later.

New York City is taking the same action, though it’s plan to retrofit city vehicles is stretched out over the course of the next eight years. Included in the provision are privately-owned garbage trucks that are used in connection with city contracts.

The guards are also required in Washington, D.C. and Portland, Ore.

Still, most privately-owned trucks are exempt to these ordinances.

But some private companies are taking action anyway. They recognize that paying $1,200 to prevent an injurious or fatal bicycle accident not only saves lives, it spares them the hefty cost of injury litigation and compensation they would likely pay in the event of a crash.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Collision Course: With Wary Eye on Big Trucks, Bike Riders Seek Safe Space on City Streets, June 30, 2015, By Bridget Huber,

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There are few figures historically who were trusted more by families than Catholic priests. That may remain true for many. However, over the last three decades, a flood of allegations of sexual abuse and sexual assault by priests began to emerge, with growing evidence that various dioceses and eparchies were more interested in protecting the church than preventing abuse. priestholdingchalice

The Vatican reports that between 2011 and 2012, it defrocked almost 400 priests connected to sex abuse scandals. Some of the bishops who oversaw those priests have resigned, but many more still remain in their former positions.

In the U.S., at least 17,000 people have come forward to allege sexual abuse as children by priests between 1950 and 2012. These are only those allegations deemed “credible” by the U.S. Conference of Catholic Bishops.

Lawsuits against the church continue to net substantial compensation for victims. However, because many of these cases are decades-old, they require involvement by a team of experienced sex abuse attorneys. While lawsuits can target the individual priest, the cases made against the church typically involve negligent retention and supervision.

A plaintiff recently prevailed in one such case, Doe v. Hartford Roman Catholic Diocesan Corp., which was heard by the Connecticut Supreme Court. The court affirmed a $1 million verdict against the diocese, finding there was sufficient evidence for the jury’s verdict, trial court committed no prejudicial error in evidentiary rulings, and retroactive application to certain statutes of limitations provisions that revived plaintiff’s otherwise time-barred case did not violate defense due process rights.

According to court records, jurors at trial found the dioceses had acted with recklessness and negligence in assigning a certain priest to serve as director of an elementary school from 1979 through 1983. The priest was known to be an alcoholic, and had previously admitted to acts of child molestation linked to his drinking. Plaintiff alleged the priest molested him from 1981 to 1983 while he was a student at the school.

Plaintiff sought compensation and punitive damages, both of which were awarded. Punitive damages were granted in the form of covering attorneys’ fees and costs.

The priest in question had admitted previous molestation of two other boys when confronted about it. He asked for help with his drinking problem. Church officials would later describe the priest as “totally contrite,” and they agreed to place him in a four-to-six month treatment program and request the reporting individual to “tell no one.” The priest insisted he was not in immediate danger of touching others.

Records and witness statements reveal church leaders referred to the woman who reported the molestation as “a pest” and of their desire to “save the embarrassment” of the accusations becoming public.

Plaintiff was a child whose mother had recently died and whom the priest “took under his wing.” These attentions turned to affections and later to frequent sleepovers and molestations.

The allegations did not surface for another 20 years. He went on to marry, become a fire marshal and investigator and have two sons. However, when another man contacted him as a potential witness in his pending lawsuit against the church amid allegations of molestation by this same priest, plaintiff was able to start counseling to address his anxiety and depression over that time in his life.

Plaintiff then filed his own lawsuit against the church, alleging the assignment and supervision of the priest was reckless and negligent and resulted in serious and debilitating emotional injuries.

Jurors agreed, and awarded him $1 million.

Upon appeal, the verdict was affirmed by both the appellate court and the state supreme court.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Doe v. Hartford Roman Catholic Diocesan Corp., July 7, 2015, Connecticut Supreme Court

More Blog Entries:

Minden v. Atain Specialty Ins. Co. – Bar Fight Liability Lawsuit, June 27, 2015, Cape Coral Sexual Abuse Lawyer Blog

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Owners and managers of swimming pools – whether public or private – owe a duty of care to those using the facilities. swimmingpool

They are obligated to keep the premises reasonably safe for guests and, in some cases, even anticipated trespassers. Pools are considered “attractive nuisances,” meaning it’s known children will be drawn to them, and thus access has to be adequately restricted.

It also means property owners need to make sure the pool structure, gates, barriers, drains and other elements meet state safety requirements. Residential swimming pool safety laws are spelled out in F.S. 515, while public swimming pool standards are found in F.S. 514.

In addition to private homeowners, some common pool sites in Florida include hotels, splash parks and resorts, apartment and housing complexes and local governments.

When pool owners and property managers do not meet safety criteria and injury or drowning occurs as a result, there may be grounds for a civil lawsuit, depending on the circumstances.

Our Fort Myers injury lawyers are committed to holding property owners accountable when dangerous on-site conditions cause harm to others, especially children.

In the case of Sanon v. City of Pella, before the Iowa Supreme Court, the issue was whether there was sufficient evidence of criminal wrongdoing by city employees related to a double-drowning that would be enough to overcome an assertion of sovereign immunity. It’s important to point out that as an out-of-state case, different laws apply. However, Florida too recognizes sovereign immunity protections for local governments and employees, which means the circumstances under which an injured person can sue are limited.

In Iowa, governments are protected from legal action for claims arising from certain acts or omissions by local government officers – unless their actions amount to criminal wrongdoing. Plaintiffs here asserted the actions of two recreational department leaders were criminal and amounted to the crime of involuntary manslaughter.

Two lower courts disagreed, granting and then affirming summary judgment for the city. However, the state supreme court reversed.

According to court records, two city leaders, sometime before the incident in question, noticed rust had formed along the rim of the underwater pool lights in the new aquatic center. Although the lights still worked, the two officials decided to keep the lights off – without first consulting with any of the electricians or risk management leaders.

State laws require public pools to have sufficient underground lighting. But these lights remained off – even during nighttime events – and no additional lifeguards or overhead lighting was supplied to make up for the dimmer conditions. The pool was rented out for a private camp one evening for an hour. All total, 175 campers were present. Several of those were non-swimmers – something camp leaders knew via parent waivers, but which was not relayed to the lifeguards on duty.

Two teen boys went on a slide in the deep end. They could not swim. They did not surface. The water was murky. And the underwater lights were out. No one realized they were missing until it was time to leave. It was only then their bodies were discovered at the bottom of the deep end.

When the parents sued the city for negligence, the city asserted it couldn’t be held liable due to sovereign immunity. The parents argued the city officials’ actions amounted to involuntary manslaughter. The state supreme court found there was sufficient evidence to support this theory, and remanded the case to the lower court for trial.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Sanon v. City of Pella, June 26, 2015, Iowa Supreme Court

More Blog Entries:

Minden v. Atain Sepciality Ins. Co. – Bar Fight Liability Lawsuit, June 27, 2015, Fort Myers Accident Lawyer

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An injured bicyclist will receive the $3.7 million a jury awarded him following a trial, although his damages were reduced by $46,000 based on an appeals court ruling that a portion of his damages wasn’t supported by the evidence. carandbike

According to California Appeals Court records in Bermudez v. Ciolek, two vehicles crashed at an intersection in January 2012. At the time, the traffic light was transitioning from green to yellow to red. One of those drivers (V1) was turning left while the other driver (V2), traveling the opposite direction, was trying to go straight.

After impact, V2 veered into a corner of the intersection and struck a bicyclist on the sidewalk.

At the time of the crash, the cyclist had no medical insurance.

In a special verdict, a jury found that while both defendants were negligent, only one – V1 – was a substantial factor in causing harm. Thus, she was found to be 100 percent responsible for the $3,752,000 in damages.

Defendant driver/V1 appealed, arguing the verdict in the bicycle accident lawsuit was not consistent. However, the Fourth Appellate District disagreed, finding V1 was not entitled to a new trial, either on liability or damages.

Justices reviewed the trial court record, in which V1, V2, the bicyclist, several other witnesses and three accident reconstruction experts testified.

Factors that were cited by a number of witnesses involved the color of the light when V1 began her left turn, as well as how attentive she was being to the traffic conditions ahead of her, her reaction when she saw V2 approach, the speed at which she was traveling and the position of her vehicle at impact.

Jurors determined V1 began her left turn  after the light turned red, she wasn’t fully paying attention to the traffic ahead of her and she braked when she saw V2 approaching, therefore blocking both lanes of the intersection.

When V1 appealed the verdict, she did not contest sufficiency of this evidence.

Instead, defendant focused on the fact the jury found V2 also negligent, but refused to find his negligence a substantial factor in the cyclist’s injuries. She asserted evidence was presented V2 was speeding, was not paying attention and failed to take timely action upon realizing a crash might occur (i.e., swerving and braking).

V2 defendant admitted he was speeding. The limit on that road was 45 mph, but he admitted he was traveling 55 mph. However, when he saw the vehicle making a left turn in front of him, despite the green light, he applied the brake and his speed upon impact was approximately 45 mph.

Expert witnesses largely backed this assertion, though V1 defendant insisted V2 was driving at approximately 60 mph.

V1 insisted V2 defendant sped into the intersection and V1 did nothing wrong.

Jurors disagreed. But even in finding V2 was negligent, they did not find him liable because he wasn’t a substantial factor in the cyclist’s injuries.

The appeals court ruled this was not inconsistent. Although V2 had breached his duty of care, he was not the cause of injury to the cyclist. That is one of the key factors of proving liability in these cases. Not only that a duty of care existed and that duty was breached, but that this breach proximately caused injury to plaintiff.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Bermudez v. Ciolek,June 22, 2015, California Court of Appeal, Fourth Appellate District, Division Three

More Blog Entries:

Fatal Florida Boating Accident Under Investigation, June 23, 2015, Fort Myers Injury Attorney Blog