September 19, 2014

Johnston-Forbes v. Matsunaga - Standards for Expert Witnesses in Crash Cases

Although expert witnesses are not required in Naples car accident lawsuits as they are in medical malpractice cases, use of an expert witness can sometimes make or break a case.

However, in order to be considered an "expert," a person must meet certain criteria for the purported field of study. Last year, Florida adopted a more stringent standard for expert witnesses. Previously, the state adhered to the Frye standard, which was established by the 1923 case of Frye v. U.S. This principle held that scientific theory, principle or procedure from which the expert witness testimony was derived had to be sufficiently grounded or generally accepted in the particular field of study.

The problem was that while general acceptance of peers in the scientific community was important, the principle lacked consideration for the individual's qualifications as an expert. This resulted in the introduction and passage of House Bill 7015, which required Florida to join 40 other states in adopting the Daubert standard for admissibility of expert witness testimony. This more stringent standard weighs whether the theory or technique in question can be tested, whether it has been subjected to peer review, whether there is a known or potential error rate, the existence of standards to control its operation, and whether there is widespread acceptance within the relevant scientific community.

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September 19, 2014

Cahours v. Florida - Actual Knowledge in Hit-and-Run

A second Florida appellate court has certified a question to the state supreme court regarding whether a defendant must have actual knowledge of a crash in order to be criminally charged with leaving the scene of an accident involving death.

Florida's First District Court of Appeal, in Cahours v. Florida, reversed defendant's criminal conviction for hit-and-run on grounds that standard jury instructions on this matter are unclear. The court also urged the state legislature to consider stepping in to clarify this matter for the judicial system.

Our Cape Coral personal injury lawyers recognize that while this is a criminal case, not a civil one, it could ultimately impact future civil cases for the simple fact that criminal convictions can help bolster the position of the plaintiff in a civil case arising from the same basic facts.

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September 16, 2014

Auto Insurance Coverage for Off-the-Clock Worker

The Eleventh Circuit Court of Appeals, the same circuit that oversees federal appeals in Florida, recently grappled with the question of whether homicide by firearm was in fact an "accident" covered under an employer auto insurance policy.

On the surface, it sounds absurd. However, it was a question with which the lower court struggled even after careful consideration. Additionally, there are wider implications in the decision rendered in Travelers Property Casualty Company of America vs. Moore et al. for off-the-clock workers involved in incidents while driving company vehicles.

In Florida, a person injured by an on-the-clock employee driving a company vehicle may seek compensation not only from the individual driver, but also the employer on the basis of the employer's liability. (An injured person might also seek to hold a company directly liable for negligent hiring, training or supervision, but that is a separate discussion.) Vicarious liability is holding the owner/insurer of a vehicle responsible just by virtue of the fact the vehicle was involved - so long as the driver had permission to operate the vehicle.

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September 15, 2014

Hillstone v. P.F. Chang's - Slip-and-Fall Case Delves Into Commercial Lease Law

One of the reasons it's so important to hire a Fort Myers injury lawyer with experience is because quite often, elements of the case will meander into other facets of law, such as employment law or business law. waiting.jpg

The outcome of the injury case could hinge on the plaintiff lawyer's ability to argue some element pertaining to these specific areas of law. A common example would be a person injured by a negligent truck driver. In order to seek compensation from the trucker's employer and insurer, one might first have to establish the trucker actually worked for the firm, and was not simply an independent contractor. Doing so requires more than base-level knowledge of state and federal labor law.

Another example of how other areas of law can factor into an injury lawsuit was illustrated recently in the case of Hillstone Restaurant Group v. P.F. Chang's China Bistro, Inc., weighed recently by Florida's Third District Court of Appeal. Although the injured party was not required to argue which entity should indemnify the other (this was a dispute between two companies), it's relevant to future personal injury plaintiffs.

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September 12, 2014

Williams v. GEICO - Auto Insurer Step-Down Provision Struck Down

Another state supreme court has struck down the so-called "family step-down provision" so prevalent in auto insurance contracts across the country. Unfortunately, that state supreme court that took this step wasn't ours, but South Carolina's.

Still, the recent ruling in Williams v. GEICO sets an important precedent that our Lehigh Acres car accident attorneys hope our lawmakers and court justices will soon recognize. After all, the decision in the Williams case was modeled after a similar ruling by the Kentucky Supreme Court.

Most people who have family step-down provisions in their policy may not even be aware of it, as it is not usually detailed in the "declarations" page of the policy, but rather buried in the "exclusions" portion. Many never hear of it until they or a loved one is seriously hurt in a crash and tries to collect the full liability limit for the policy they purchased, only to be told the exclusion is applicable and they are entitled only to the minimum statutory coverage.

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September 9, 2014

Study: More Florida Auto Injury Claimants Hiring Lawyers

A recent report by the Insurance Research Council indicates a marked increase in the number of people seeking legal assistance in filing an auto injury claim.carcrash1.jpg

Our Cape Coral car accident attorneys understand the percentage of personal injury protection claimants in auto accidents represented by a lawyer increased to 36 percent in 2012, a five percent increase from the number represented by attorneys in 2007. It's also more than double the rate of those represented by lawyers in 1977.

Meanwhile, the number of bodily injury claimants represented by attorneys increased to roughly 50 percent in 2012.

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September 6, 2014

Henkle v. Norman - Homeowner Duty to Warn of Dangerous Condition

Just like commercial property owners, private property owners owe a duty to those on their property to address potentially dangerous conditions or, alternatively, to warn of them. The degree of that duty depends largely upon the status of the person on the property - whether an invitee or trespasser.

Liability of the owner may be reduced if the danger was open and obvious to the injured party or if there was any degree of comparative fault on the part of the injured person.

Our Fort Myers premises liability attorneys know while homeowners may not be fully aware of their legal obligations, ignorance is no excuse, especially if someone is seriously hurt as a result of encountering a dangerous condition without warning.

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September 3, 2014

Documentary Details Evolution of Tort Reform

There is a perception problem that exists for victims of personal injury. Too often, they are accused of exaggerating, malingering, being greedy or blaming others for their own faults. What is less obvious is the fact that this widespread perception is not by mistake. It's the result of more than two decades of a sophisticated public relations campaign launched by big business interests to convince the public the civil justice system is out-of-control, frivolous lawsuits are commonplace and judges are failing to keep these issues in check.
All of this is the subject of a new documentary, "Hot Coffee," which also delves into the fact that these perceptions have manifested in the form of legislative actions on tort reform that limit access to and relief derived from the court system. For example, damage caps have been instituted as a way to "curb overinflated jury awards." Insurance companies and other big businesses convinced the public that multi-million dollar payouts to those who had been severely injured resulted in higher prices for everyone. The truth of the matter is, tort reform doesn't bring down costs. In fact, lawsuits are a minute part of what these huge companies spend annually.

Our Fort Myers injury attorneys also know that the issue of tort reform is generally a red herring. It distracts from the biggest issue, which is that big business interests, from auto insurance to pharmaceutical companies, will do everything in their power to limit their own liability, even if that means denying essential compensation to those who need it most.

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August 30, 2014

Stratton v. Wallace - Vehicle Lessor Not Shielded Under Graves Amendment

Prior to implementation of the federal "Graves Amendment" in 2004, Florida was one of 17 states that had full or limited vicarious liability for vehicle owners in crash cases. Our Cape Coral car accident lawyers know this included all vehicle owners, including companies that routinely leased vehicle to the public for profit. crashedcar.jpg

The Graves Amendment changed that. Stuffed into an 835-page federal transportation bill and given just 20 minutes of discussion by legislators in the House of Representatives, the measure preempted state vicarious liability laws in personal injury cases with regard to vehicle owners who rent or lease vehicles. At the time it was passed, opponents called it a "sham," and feared it would leave innocent accident victims without recourse, especially when the company chooses to rent or lease a vehicle to an uninsured motorist.

There has been some push back in the courts to limit the scope of this legislation, most recently in New York with the federal appellate judge ruling in Stratton v. Wallace that a commercial defendant would be unable to avoid liability under the Graves Amendment.

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August 29, 2014

More Road Travel in Florida Expected This Labor Day

This Labor Day is expected to be the busiest on our nation's roadways in six years, with the recession easing and gas prices lowered. But, according to AAA projections, it's also likely to be one of the deadliest holidays in recent years as well.
As our Fort Myers car accident lawyers know, more vehicles on the road translates to a greater number of crashes.

It can be easy to downplay the risk as you head out to the boat or backyard barbeque. No one ever thinks it can happen to them. The National Safety Council indicates the odds are 1 in 88,000 you or someone you love will die in a crash between now and Tuesday. Those might seem like decent odds, but the consider too the chance is even higher you or someone you love might be seriously injured.

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August 28, 2014

Carman v. Tinkes - Traffic Law Violation Doesn't Automate Fault

In auto accident litigation, our Lehigh Acres injury lawyers know it can be helpful to the plaintiff's case if it can be shown the defendant driver was engaged in some violation of traffic law at the time of the crash.

However, as the recent case of Estate of Edmund M. Carman v. Tinkes, et al. reveals, it isn't the only factor that matters. A driver who violates a traffic law might be cited by police for that infraction, and that fact could be used in the civil case to reveal a pattern of poor habits behind the wheel. However, that fact alone won't establish liability. What has to be shown is that the traffic violation was a contributing cause of the crash.

Another important factor is that of comparative negligence. That is, to what degree was the plaintiff responsible for causing the accident? Florida follows the pure comparative negligence standard, which liberally favors plaintiffs by holding that no plaintiff is barred from recovery of damages just because he or she shared a portion of the blame for what happened. However, the amount of damages collected may be reduced, depending on one's degree of fault.

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August 26, 2014

Gregory v. Cott - Alzheimer Patient Aggression and Injuries

Caregivers of people suffering from Alzheimer's disease and other forms of dementia are familiar with the fact that, at times, feelings of frustration and confusion may cause the sufferer to lash out in physical aggression.
Now, according to the recent California Supreme Court decision in Gregory v. Cott, health workers providing care to these individuals are presumed to have assumed the risk of potential injury when they agree to work closely with these patients. That means the exclusive remedy for aides, nurses and doctors who suffer physical injury at the hands of an Alzheimer patient is likely workers' compensation.

However, our Fort Myers nursing home abuse lawyers know that when it comes to other residents in a long-term care facility, there is an expectation the facility will protect patients from the aggression of staff or other patients. Additionally, while the state supreme court decision may be looked to for precedent by Florida judges weighing similar issues, it does not hold sway here. There is also an understanding that facilities will have properly-trained staffers to handle incidents of aggression among dementia patients, so that outbursts do not escalate and cause the resident to be placed at risk of injury. Failure to do so is a form of nursing home negligence.

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