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When criminal attacks occur, we expect there will be a criminal case against those responsible. However, in many cases, there may be a civil claim for liability not only against the attacker, but also against the property owner.bar1

Under premises liability law, property owners and those who manage certain properties owe a duty to guests to maintain that property in reasonably safe condition.When dangers are known, knowable or foreseeable, these entities have a duty to protect people against them to a reasonable extent.

In a bar setting, that typically means having the means to manage security, particularly as it’s understood patrons will be consuming alcohol and may not be using reasonable judgment.

In the recent case of Minden v. Atain Specialty Ins. Co., the U.S. Court of Appeals for the Eighth Circuit was asked to weigh a dispute between plaintiffs in a wrongful death case stemming from a bar fight and the insurance company representing the bar.

According to court records, the incident started with a private birthday party for a local police officer. Decedent was a friend of the officer and invited guest. Defendant was invited by his sister, who was a friend of another guest. When the bar closed around 1 a.m., a guest of the party planned to escort home a female who appeared to be drunk. Defendant, who was acquainted with that woman, was concerned the other guest was going to take advantage of the woman and insisted he instead be the one to take her home.

Eventually, the other guest threw the woman’s keys at defendant and told him to take the woman home. He escorted her to his pickup truck, where his girlfriend also was waiting. The three began to drive away, but defendant stopped to pick the woman’s keys off the ground and attempted to lock her car. Instead, however, he caused the car alarm to go off, prompting the other guest – and decedent – to yell insults at defendant.

Defendant got the car alarm to turn off, got back in his vehicle and attempted to drive away. However, he instead plowed into decedent and ran over his body. Decedent died a month later. Defendant insisted he thought plaintiff had moved out of the way. Others at the scene testified they believed defendant had intentionally struck decedent because he’d taunted defendant. Defendant’s girlfriend and the woman he was escorting home testified it was an accident.

He later pleaded guilty to criminal charges, ultimately accepting a plea deal that resulted in a seven-year prison sentence.

Decedent’s widow filed a lawsuit against the bar for premises liability, negligence and dram shop liability. The liquor license insurer defended against the dram shop liability claim – and settled in mediation – but the general liability insurer refused to defend or indemnify the bar for premises liability or negligence. It reasoned coverage did not extend to criminal attacks.

The bar did not contest a consent judgment for $2 million in state court, though the insurance company refused to participate. Widow then filed a lawsuit against that insurance company, alleging equitable garnishment and vexatious failure to defend.

District court sided with plaintiff and granted summary judgment. However, the federal appeals court reversed in part and affirmed in part. It found defendant insurer was liable for equitable garnishment (a cause of action unique under Missouri law) but not for vexatious failure to defend.

If you have been injured on another person’s property as a result of a criminal attack, contact an experienced personal injury lawyer to determine whether you may have a relevant claim.

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

Additional Resources:

Minden v. Atain Specialty Ins. Co., May 26, 2015, U.S. Court of Appeals for the Eight Circuit

More Blog Entries:

Social Media Analyzed in Fort Myers Injury Lawsuits, May 18, 2015, Cape Coral Wrongful Death Lawyer Blog

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Suing local government for personal injury or wrongful death is a complex process that involves a number of special rules and procedures and for which damages are likely capped. Many times, you must act very quickly, or else forever lose your right to bring a claim. skateboard1

Often, before the case ever gets to trial, the government entity will assert sovereign immunity. This is an age-old legal principle that essentially holds the government cannot be held liable for wrongdoing. However, there are instances in which the government grants its permission to be held liable, and in Florida, those instances of waiver of sovereign immunity are outlined in F.S. 768.28.

Still, instances in which a waiver of sovereign immunity is granted are highly case specific. Take, for example, the case of Kent v. City of Columbia Falls, before the Montana Supreme Court. Typically, government entities aren’t responsible for the engineering/design/maintenance of roadways and sidewalk features in private or gated communities. This would generally be the responsibility of the private land-owning association. However, in the Kent case, there was an assertion the government had taken in an unusually active role in the design/engineer/planning for the thoroughfares within a certain gated community where a man had fallen down a steep hill on his skateboard.

That man, a husband and father, sustained serious head injuries and later died as a result of those injuries.

His widow (on behalf of herself and their children) sued the association as well as local city government. Specifically, she alleged willful and wanton misconduct, premises liability, nuisance, attractive nuisance, negligence per se and wrongful death. Against the city in particular, she alleged failure to follow its own rules and regulations.

The slope of hill on which the skateboarder fell was at a 24 percent incline, which exceeded the specifications as designated by the city for similar roadways.

Widow settled with all other defendants – except the city. The city asserted it had no supervisory authority over the design and construction, it did not own the property or the path and that it was entitled to protection from liability per something called the public duty doctrine, which is an extension of sovereign immunity.

However, plaintiff countered these assertions by showing the city had taken on an especially active role in the planning and design of this subdivision. Public records showed city council members voted on plans and specifications for the site, the city manager voluntarily undertook an active role in determining layout and location of the trail system where this accident occurred and other city workers were actively involved in the process.

District court granted city’s motion for summary judgment, but the Montana Supreme Court reversed. While it stopped short of actually finding the city liable, it determined the city could be found liable and was not entitled to sovereign immunity protections. However, the court did find the city could not be liable under theories of premises liability, as it did not own or maintain the land on which the accident occurred, and the adjacent property owner theory was not applicable in this case.

What this means is the widow will be able to press forward with her lawsuit against local government, and hopefully obtain compensation for the tragic and unnecessary loss of her husband.

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

Additional Resources:

Kent v. City of Columbia Falls, May 29, 2015, Montana Supreme Court

More Blog Entries:

High School Football Player Compensated for Head Injuries, May 25, 2015, Fort Myers Wrongful Death Lawyer Blog

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A South Florida boating accident recently claimed the life of one man and injured two others. Investigators are working to piece together what happened. boating

Two boats were moving side-by-side along the Intracoastal Waterway in Fort Lauderdale when one of the operators lost control and smashed into a dock located in the rear of a private residence. The impact of the collision resulted in a 24-year-old man being ejected from the vessel, where he struck his head on the concrete sea wall. He was pronounced dead at the scene, while two others were transported to a local hospital for treatment. They are expected to survive their injuries.

Officials are unsure exactly why the vessels were moving side-by-side or how fast they were traveling. However, there is some indication speed was a factor because the impact of the crash was forceful enough to send a passenger out of the boat. Further, there is some indication more than one person was operating the vessel that crashed in the moments prior to impact. There is also an ongoing inquiry into whether alcohol may have played a role in the crash.

This tragedy, whatever the cause, was likely preventable, and we’ll learn more of the details in the coming weeks. In the meantime, it’s a sobering reminder of the importance of adhering to strict standards of boating safety.

A new report released by the Florida Fish & Wildlife Conservation Commission reveals the boating fatality and injury rates for the state last year.

To start, Florida maintains the highest number of boating deaths and boating injuries in the nation. That has been the case for several years running, and it may not seem all that surprising, considering we are a peninsula surrounded by water and with numerous inland lakes and rivers. In fact, Florida’s coastline is 1,350 miles, compared to California’s 850 miles. But consider California has double the population of Florida, and Florida reported 50 percent more boating fatalities than California last year — 51 compared to 34.

Of all the boating accident fatalities reported in Florida, most occurred May through August, with the peak month being July. In that month alone, 14 boating deaths were reported.

The fatality rate for boating deaths per registered vessels has spiked in the last several years. In 2012, the fatality rate was 6.1 per 100,000 registered vessels. Last year, the rate climbed to 8.1 per 100,000. Most of those involved either falls overboard or capsizing.

Of those who were injured but survived, the most common injuries were lacerations and contusions. Beyond that, in order of commonality, were:

  • Broken bones
  • Head injuries
  • Back injuries
  • Strains and sprains
  • Internal injuries
  • Neck injuries
  • Dislocations
  • Teeth and jaw injuries
  • Burn injuries
  • Spinal injuries
  • Shock
  • Amputation

The Southern Florida Gulf Coast was was where many boating accidents were reported. Among the county rankings:

  • Miami-Dade – No. 1
  • Monroe County – No. 2
  • Pinellas County – No. 3
  • Palm Beach County – No. 4
  • Lee County – No. 5
  • Broward – No. 6
  • Collier – No. 7

Of those reported in Lee last year, primary causes of accidents were reported to be:

  • Excessive speed
  • Hazardous waters
  • Operator Inattention
  • Operator inexperience
  • No proper lookout
  • Machinery/equipment failure

The primary type of accident meanwhile, was by far collision with another vessel, followed by flooding and collision with a fixed object.

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

Additional Resources:

Man, 24, killed, 2 others injured in Intracoastal Waterway boat crash, May 30, 2015, By Mike Clary and Anne Geggis, Sun-Sentinel

More Blog Entries:

Report: Extreme Drink Special Legal in Florida, May 28, 2015, Fort Myers Boating Accident Lawyer Blog

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At bars and nightclubs across the Sunshine State, patrons are subjected nightly to challenges such as “Bladder Buster,” “Sink or Swim” and “Penny ’til you Pee.”
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All of these are different variations of “extreme” drink specials that many other states have seen fit to ban – not only because they put patrons in danger of alcohol poisoning, but also because it increases the risk that one or more of those patrons will venture onto the roadways while extremely intoxicated.

Unfortunately, the reason why these specials are so popular here is because there is no law specifically banning them. When it comes to civil liability, victims of drunk drivers can sue establishments that served alcohol to the impaired motorist, but only in certain situations.
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Approximately 2.5 million people in the U.S. suffer a traumatic brain injury each year, with roughly 50,000 of those cases being fatal. Mostly, these injuries are caused by motor vehicle accidents, falls, being struck by or against objects and assault.
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These injuries may be mild, but often result in severe and lasting consequences, including permanent disability or death.

For one teen football player in Iowa, the impact rendered him permanently disabled with severe brain damage and confined to a wheelchair. Now 18, he recently won a $1 million negligence lawsuit filed on his behalf against the school district for whom he played. It is believed to be the largest amount of damages awarded to a high school football player for such injuries.
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While Florida is a beautiful place for a bicycle ride, it hasn’t been known as a safe one.
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In fact, the Sunshine State has consistently ranked as having the highest numbers and rates of bicycle fatalities annually. Unfortunately, according to the latest figures from the National Highway Traffic Safety Administration, that’s still true.

But, there is also evidence we are making strides. The League of American Bicyclists has ranked Florida 24th out of 50 for bicycle friendliness, with an overall score of 39 out of 100 – a slight improvement from the 2014 score of 35 out of 100.
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Florida’s stringent slip-and-fall law, updated in 2011, covers incidents that occur at colleges and other institutes of higher learning, according to a recent ruling by the 4th DCA.
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The court in McCarthy v. Broward College ruled the provision of F.S. 768.0755 that states “in a business establishment” is applicable to universities.

The totality of the updated law states a person who is injured after slipping and falling on a foreign transitory substance (water, grease, sand, oil, cleaning solution, wax, etc.) in a business establishment has to prove the business had actual or constructive knowledge of the potentially dangerous condition and failed to take action to remedy it. Actual knowledge means the establishment was informed of the problem or noticed it. Constructive knowledge essentially means “should have known.” This element of the statute can be proven by showing either the condition existed for a certain length of time that would suggest in the ordinary exercise of due care, the company would have discovered it OR that the condition occurred with such regularity that it is considered foreseeable.
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In the event of a construction accident, an injured worker may first seek legal remedy through workers’ compensation benefits, which provide immediate financial relief for job-related accidents and illnesses.electricalworker

Beyond that, there may be additional relief to be secured through a third-party lawsuit. On a construction site, these claims may be directed against the property owner, the general contractor, a subcontractor or, as in the Texas Supreme Court case of Genie Industries, Inc. v. Matak, the manufacturer of a defective or malfunctioning machine or tool.

Product liability cases stemming from construction accident injuries can be complex. The equipment with which many construction professionals work is often inherently dangerous, even when used properly. This means plaintiffs have to show the equipment was unreasonably dangerous and there is a safer design alternative to accomplish the same goal.
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It’s become common knowledge that police investigators and prosecutors will sift through the social media posts and pictures of people suspected of crimes, searching for evidence that might bolster their case.
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What is somewhat less well-known is the fact that personal injury victims are also likely to become the subject of such scrutiny. In fact, it is an increasingly common practice for defendants early on in a case to request access to all of plaintiff’s social media postings within the previous year or more – even if those pages have strict privacy settings. And judges are granting those requests with increasing regularity.

The value of these postings for defendants goes beyond simply trying to find photos of a plaintiff being more physically active than they claim they can be (though there is that). Rather, they are looking for evidence of happiness and quality of life. In many personal injury cases, clients will seek damages not just for medical bills or lost wages, but for things like pain and suffering, loss of life enjoyment and loss of consortium. These elements require an examination of the quality of life and personal relationships one had before the accident or illness that is the subject of litigation, as compared to the quality of life after.
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Following an auto accident, it’s common practice for drivers to file a claim with an insurance company to cover the cost of repairs. After all, that’s why we have insurance.
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But insurance companies are always looking for ways to cut costs, and for a long time, one way they have done that is by demanding auto repair shops use after-market or recycled parts – rather than replacements from the manufacturer – to make repairs. This in turn makes the insurance claim less costly.

But now, in a federal lawsuit filed in the U.S. District Court for the Middle District of Florida, Orlando Division, hundreds of auto repair shops in 36 states are suing dozens of automobile insurers (including Progressive, Geico and State Farm) alleging that all too often, these cheaper parts are substandard – and that means consumers are put at risk of serious injury if those parts fail.
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