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A motorcycle accident victim will have the opportunity for a new trial after an appeals court ruled the trial judge erred in excluding certain evidence that would have been beneficial to the plaintiff. motorcycles1

Summerhill v. Klauer was an accident that involved a motorcyclist and a moped rider in Indiana. We explore the case here as some of the legal matters at issue are pertinent to motorcycle accident victims in Fort Myers too.

According to court records, the excluded evidence at issue was:

  • Plaintiff’s accident reconstruction expert witness testimony;
  • Evidence of defendant’s dishonesty, based on a decades-old fraud conviction which he lied about under oath in these proceedings;
  • Plaintiff’s expert medical witness testimony as to the likelihood his injuries were result in post-traumatic arthritis in the future.

Continue reading →

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Florida has for years now held the dubious distinction of having the highest rate and bicycle accidents and related deaths. Lee County has historically been one of the worst locations, ranking 10th in the state, with regular riders and tourists alike constantly at risk. bicycles

In 2014, there were a slew of incidents involving anti-cyclist rhetoric. There was the man who ran over a row of bicyclists on Fort Myers Beach before declaring to a doctor who rushed to their aid, “I should have hit them harder.” There was the Naples woman who allegedly spat on a bicyclist after plowing into him. And there was the Cape Coral cyclist who dodged a motorist’s bullets after shouting at him to slow down.

All of this prompted a novel approach by The Fort Myers News-Press: Advocacy in journalism. Though objectivity is a core tenant of journalism, the paper of record took an unabashed role of advocating for fewer bicycle accidents and deaths. Now, it looks like it may have actually worked, at least to some degree.  Continue reading →

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Most of us depend on our vehicles to commute to work, school, our kids’ soccer practices and more. We can’t control the way everyone drives on the road, but we can ensure our own driving habits are optimal and that our vehicle is in good working condition.mechanic

Or can we?

We rely heavily on auto mechanics to make sure our vehicles run properly. In fact, when you entrust your vehicle to the possession of a mechanic for service or repair, it establishes something known as a “bailment relationship” or contractual relationship with the mechanic. This in turn gives rise to a number of professional and legal duties owed by the mechanic. These duties include:

  • Inspecting the vehicle to make sure it is not a danger to any driver;
  • Treating the care with reasonable care;
  • Avoid fraud, concealment or bait-and-switch tactics;
  • Refrain from making unauthorized or unnecessary repairs;
  • Not replacing or fully repairing broken or worn parts;
  • Installing the wrong replacement part;
  • Not noticing a major repair that needs done;
  • Performing the wrong repair or maintenance procedure;
  • Altering a vehicle in a manner that makes it illegal to drive;
  • Causing damage to other parts of the vehicle.

Continue reading →

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The sexual abuse of minors is not only a gravely serious criminal act, it is also grounds upon which victims may seek damages in civil court. In many cases, it is not only the offender who is named, but also the company or institution at which the alleged abuser was employed. This is for a number of reasons, including:

  • Employers may be vicariously liable for the wrongs of employees;
  • These entities also separately owed a fiduciary duty to the victim. sadness

An example would be a lawsuit against a school district for abuse suffered by a student from a coach on school grounds. The school would be vicariously liable for the actions of its employee, but it also separately owes a direct duty to adequately supervise and protect the student.  Continue reading →

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With most auto accidents in Fort Myers, if it happens here, the proper court in which to file it will be within the 20th Judicial Circuit Court, Civil Division.  gavel6

Still, one of the first things the court will want to establish is jurisdiction, which is the official power to make legal decisions and judgments. There are generally two types of jurisdiction: Personal (over the individual involved) and Subject Matter (over the circumstances of the case). There is also a third prong sometimes mentioned called Procedural (over the specific procedures involved).

The purpose of jurisdiction is to ensure the right laws are applied and the right court is handling the case. In most cases, if a car accident happens here, it’s the local civil court that will have jurisdiction to hear the injury claims. However, there could be circumstances under which that’s not true.

Take for example the car accident lawsuit of Woodward v. Taylor, recently before the Washington State Supreme Court. Continue reading →

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A Naples man has filed a product liability lawsuit against the manufacturer of an electronic cigarette (or e-cigarette), which he said he was using normally when it literally exploded in his face. His eyebrows were burned off and flames were sent shooting into his mouth, quickly burning his throat and lungs, he says.smoke

Emergency medical responders had to heavily sedate the 21-year-old so they could keep him breathing, as the burns on his esophagus and lungs were such that there was a serious risk of his airway being closed. As his air passages swelled, his life was in danger. The only reason he didn’t die, according to a lawsuit detailed in the Daily Business Review, is that he was intubated, meaning a machine was breathing for him.

According to the filing, the culprit in the explosion was a lithium battery. Defendant is a California company that is accused of using this volatile component without accounting for its incendiary properties or warning consumers of the potential danger it posed.  Continue reading →

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The Daily Business Review reports a $1.35 million settlement has been reached to compensate surviving victims of a fatal DUI crash in South Florida involving a drunk driver who had no insurance.trafficlight

Victims were a driver in his 70s, a backseat passenger in her 70s and a front seat passenger who was 99. They were stopped at a Palm Beach traffic light when a reported drunk driver came barreling toward the intersection at 70 mph. He did not stop or slow down. The elderly driver and passengers were transported to the hospital, where the oldest died three days later. The back seat passenger had to undergo surgery and spent more than four months in the hospital recovering.

How is it possible that these individuals could receive this kind of compensation when the at-fault driver didn’t have insurance? Continue reading →

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If you are a cyclist who avails of the increasing number of bicycle trails in Lee, Collier and Charlotte counties, you may want to keep in mind that if you are injured due to some dangerous condition thereon, you may have a more difficult time recovering damages. bicycle11

That’s for two reasons:

  1. Florida’s recreational use statute, F.S. 375.251 allows for a limitation on liability of persons who make available to the public certain areas for recreational purposes without charge.
  2. Florida’s governmental immunity law, the waivers to which are outlined in F.S. 768.28.

So private land owners who open their land for recreational biking, either on paved paths or rougher terrain, could enjoy protections under the recreational use statute, while government entities would be protected under governmental immunity laws. Continue reading →

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For 40 years, Florida drivers have been compelled to purchase Personal Injury Protection auto insurance to cover a minimum of $10,000 in personal injuries occurring as a result of an auto accident – no matter who is at fault. It’s referred to as the state’s “No Fault” car insurance system. Some legislators want it gone. accident

Efforts to scrap PIP benefits aren’t new, of course. But they are gaining traction across the state, especially with the introduction of SB 1112, filed by state Sen. Jeff Brandes, R-St. Petersburg.

Filed quietly on Dec. 11, 2015 for consideration by the legislature in 2016, the measure would eliminate PIP and, as Brandes argues, “force policymakers to address this important issue impacting every driver in our state.” Continue reading →

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Lee Memorial Health System is the No. 1 employer in Lee County, with 9,500 workers in four different hospitals. Most of the injury lawsuits it faces are going to be:

  • Workers’ compensation claims;
  • Medical malpractice injuries. ward

There are differing proof burdens for each, and the level of evidence needed in medical malpractice cases is especially high.

However, there is a third type of claim that could arise, and it’s important to make the distinction: General negligence. That is, if the person injured wasn’t a worker or a patient and the injury didn’t stem from some violated provision of health care, it’s likely a general negligence claim. The reason it’s necessary to classify this upfront is that medical malpractice claims almost always require expert witness testimony and there are certain time limits and lawsuit notification deadlines that have to be met.

Sometimes, health care systems will argue that a claim filed as general negligence is in fact medical malpractice because they want plaintiffs to face additional hurdles. That gives defendant hospitals and health care workers more of an opportunity to prevail in their case. Continue reading →