January 31, 2015

Negligence Alone Insufficient for Compensation

In any personal injury lawsuit, there are some basic legal and factual requirements that must be met in order for the claim to succeed.

These requirements include establishment of:
--A duty owed by defendant to plaintiff;
--A breach of that duty;
--Proof that breach proximately caused plaintiff's injuries;
--Compensable damages.

If any one of these elements goes wanting, the entire case will fail.

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January 28, 2015

Police: Speed Primary Factor in Fatal Cape Coral Crash

While traffic homicide investigators continue to piece together evidence from the wreckage following a recent fatal crash on Del Prado Boulevard in Cape Coral, they say one thing seems certain: Speed was a primary factor.
It seems both vehicles - a Toyota Corolla car and a GMC Envoy sport utility vehicle - were traveling the same direction at speeds of up to 80 miles-per-hour in a 45-mile-per-hour zone.

The Corolla was driven by a 17-year-old male. The Envoy was driven by an 18-year-old. The two vehicles were traveling side-by-side when they collided, sending the SUV careening across the median and into oncoming traffic, where it rolled several times. The SUV driver, of Cape Coral, was pronounced dead at the scene. His passenger, 20, sustained injuries. The 17-year-old driver of the other vehicle was reportedly not injured.

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January 27, 2015

New Report: Florida Still Among Deadliest for Cyclists

If there was anything positive for Florida cyclists in the latest Governors Highway Safety Association report "Bicyclist Safety," it's that the Sunshine State is no longer No. 1 in cycling fatalities. That dubious distinction now goes to California.

However, that state - with 28.8 million more people than Florida - had exactly three more bicycling deaths than Florida - 123 compared to 120. A year earlier, Florida logged 126 bicyclist death, while California tallied 115.

In total between 2010 and 2012, Florida counted 329 cycling deaths, while California reported 338. In looking at the rate of bicycle deaths (the percentage of bicycle deaths in relation to other traffic fatalities), Florida ranked highest at 5 percent. California's rate was 4.3 percent, Massachusetts 4.3 percent and New York 3.9 percent.

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January 26, 2015

Nucci v. Target - Facebook Privacy Trumped by Relevancy in Injury Case

If Facebook were a country, it would rival China as the world's largest. As of October 2014, The Washington Post reports the number of unique users cleared 1.35 billion. It has effectively revolutionized the way we communicate.
Most people are on these sites to connect with others. However, privacy settings are available to block dissemination of certain information to the general public. But take heed: That information is not actually private, and whatever you post may be subject to scrutiny in a court of law.

That point was underscored recently in a slip-and-fall lawsuit weighed by Florida's Fourth District Court of Appeal. In Nucci v. Target et al., plaintiff argued against a trial court order compelling her to allow defendants access to her social media pictures dating back two years prior to the incident. (The court also ordered her to turn over pictures taken with her cell phone, but those were not at issue on appeal.)

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January 26, 2015

Ruiz v. Victory Props - Premises Liability Claim for Child Injury

Property owners are responsible for curing or warning of dangerous conditions of which they know or should know and that may not be easily discoverable by guests.

That's the general basis for premises liability claims in Florida. In some cases, though, property owners can be held responsible for third-party acts when those acts were precipitated by some dangerous condition on site. Some examples include negligent security and attractive nuisance. The latter primarily involves children on the property, and the principle holds that children are going to be drawn to certain dangers on site. Because children lack the ability to fully process the consequences of their actions, property owners have a duty to protect children in cases of foreseeable danger.

F.S. 823.08 details some obvious attractive nuisances, which can include:
-Deep-freeze lockers;
-Clothes washers;
-Clothes dyers;
-Similar airtight units from which the doors have not been removed.

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January 23, 2015

ACUITY v. Johnson - Truck Crash Insurance Dispute

Insurance companies can create numerous roadblocks to a personal injury trial.
In the recent trucking accident case of ACUITY v. Johnson, proceedings were prolonged while the insurer disputed its responsibility to cover damages resulting from an accident involving it's small-scale trucking company client.

The insurer did ultimately end up paying more than $560,000 to plaintiffs, but there was a central dispute as to whether the company should have had to indemnify the trucking firm in the civil lawsuit. Ultimately, the U.S. Court of Appeals for the Eighth Circuit determined that it should and that the claim was covered.

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January 22, 2015

Quinlan v. Toyota - Florida Judge Allows Pursuit of Punitive Damages

In the event of a motor vehicle accident, there are two different kinds of damages a plaintiff may be able to collect: compensatory and punitive.

Compensatory damages include economic (property damage, medical bills, lost wages and other financial losses) and non-economic (pain and suffering, loss of consortium and mental anguish).

Punitive damages, meanwhile, are not intended to compensate the victim for any injuries or damages he or she suffered, even though they are ultimately paid to plaintiff. Rather, they are intended to punish a defendant for egregious actions.

The exact amount one might expect in a punitive damage case will depend on the nature of defendant's conduct, how wealthy defendant is and how much harm other potential victims suffer by defendant if he/she is not punished. It also factors in the actual harm sustained by plaintiff.

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January 15, 2015

Semian v. Ledgemere Transp., Inc. - No Bar to Recovery for Comparative Fault

There are varying approaches taken by each state to the issue of how to handle injury claims made by plaintiffs who may have shared some portion of fault. On one extreme, there are states that will totally bar recovery if plaintiff is to any degree at-fault for the incident resulting in injury. Other states will only prohibit collection of damages if plaintiff's percentage of fault is at or exceeding 50- or 51- percent (known as modified comparative fault).

Florida, by contrast, follows a model of pure comparative fault. The legal standard, as set forth in F.S. 768.81(2), is a plaintiff's percentage of fault will diminish proportionately the amount he is entitled to recover. However, the existence of fault - to any degree - is not a bar of recovery. That means a plaintiff could theoretically be 99 percent at fault, and still collect 1 percent in damages if he succeeds in the civil case.

This issue sometimes arises in bicycling accident cases. 2014 was an especially deadly year for bicyclists in South Florida, prompting advocacy groups to pressure legislators for greater protections. Collier County commissioners in December voted to accept an ordinance making it illegal to harass bicyclists by throwing objects, threatening them, honking or shouting at them or doing anything to threaten their safety.

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January 14, 2015

Augsburger v. Homestead Mut. Ins. Co. - Dog Bite Injury Case Weighed

Dog bites and attacks in Florida cost pet owners some $7 million annually, with Lee County Animal Services reporting approximately 1,400 individuals are hospitalized annually for dog bites here alone.

Some of these injuries are severe and a few even end in death.

F.S. 767.04 deals with a dog owner's liability for damages to a person bitten. The law states the owner of a dog who bites any person who is in a public space or lawfully in a private space is liable for such damages, regardless of whether the owner had knowledge of any prior viciousness. However, negligence on the part of the person bitten reduces owner liability, except if the victim is 6 or younger.

Many other states have similar laws, and homeowner insurance policies usually cover damages when injuries occur as a result of a pet attack. However, the question was recently raised before the Wisconsin Supreme Court whether liability could still be incurred even if the owner of the dogs, who lived in the home where the bite occurred, was not also the owner of the home.

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January 13, 2015

Tougher DUI Enforcement Leads to Fewer Crashes

There tends to be a lot of grumbling when people hear about enhanced police patrols, particularly on or around holidays. The general consensus is often something along the lines of, "Why would they want to give out more tickets on Christmas?"

Now, a new study supports this kind of enhanced law enforcement action as a means of not just "meeting a quota," but rather effectively reducing instances of impaired driving, speeding and crashes.

Senior Research Scientist Jim Fell with the Pacific Institute for Research and Evaluation focuses his efforts primarily on underage drinking and impaired driving. One of his recent studies involved examining which laws and enforcement efforts were most effective in convincing people not to drink and drive.

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December 31, 2014

Borden Dairy v. Kuhajda - Trucking Accident Injury Verdict Affirmed

This month, an increase in holiday-related travel and freight delivers will increase the risk of a truck accident. The highways are full of harried drivers who don't have their attention on the road. Truckers are no different, especially given may of them work on tight deadlines and especially this time of year are under enormous pressure to bring toys, electronics, food items and other goods to retailers as promptly as possible so stocks are always replenished.

Far too many trucking retailers sacrifice safety for timeliness, even in light of recent federal regulations further restricting drive time and load weights.

In the recent case of Borden Dairy v. Kuhajda, a trial court jury determined a dairy truck driver's unsafe actions resulted in company liability for the crash. The verdict was recently upheld on appeal to Florida's First District Court of Appeal.

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December 29, 2014

Wrong-Way Drivers Devastate Florida Families, Target of MADD Campaign

Just last month, a 59-year-old woman was driving Old 41 in North Fort Myers around 2 p.m. when she was struck head-on by a 63-year-old woman driving south in the northbound lane. Both women were rushed to the hospital. The at-fault driver lived. The other lost her life.
It's not yet clear whether alcohol was a factor in the crash, but we do know many wrong-way crashes in Florida are predicated by alcohol consumption.

The Florida Highway Patrol reports there were 164 people killed in wrong-way crashes in the state between 2003 and 2012. Another 1,322 were seriously injured. According to research by traffic engineers at the University of Central Florida, each fatal crash costs an average of $6.6 million when you factor in medical bills, emergency response services, property damage, lost wages, loss of productivity and other factors. Wrong-way crashes involving injuries, meanwhile, cost an average of nearly $640,000 each, according to that same study.

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