December 21, 2014

Lee County Bicycle Injuries, Deaths Continue to Mount

There is evidence to suggest 2014 may be the deadliest year in the past decade for bicyclists in Lee County. bicyclist.jpg

Most recently, ABC-7 reported on an incident in which a 13-year-old cyclist suffered critical injuries after colliding with a passing motor vehicle. Authorities say the child was riding on Burnt Store Road around 2 p.m. when a vehicle attempted to pass. For reasons unclear, the child swerved into the road at the last minute, causing the pedal of the bicycle to hit the car. The child flew onto the hood of the vehicle and landed on the road.

News reports indicate the total number of bicycle fatalities in the county as of mid-November was eight - just one shy of the record-setting 2005 total of nine. That doesn't include the dozens of injuries that occured - including this case. That figure also doesn't include the 22 pedestrians struck and killed by vehicles this year.

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December 19, 2014

Chandler v. GEICO - Liability for Unauthorized User of Rental Car

Last year, according to Auto Rental News, the car rental industry in the U.S. raked in approximately $24.5 billion - a 4 percent increase over the previous year.

The companies involved are typically substantial, with an average fleet size of 1.95 million. One of the peak months for car rentals is December, when millions of people are traveling out-of-town to visit family members and either use a rented vehicle to get there or rent a vehicle while they're there.

These firms are not hurting for revenue, and yet they have proven successful in limiting liability in many cases for injuries that occur in their vehicles. For example, the federal Graves Amendment, signed by then-President George W. Bush in 2005, eliminates vicarious liability for owners of rented or leased vehicles. Prior to that, there were more instances where these companies could be found liable for damages caused by one of their vehicles.

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December 17, 2014

Dangerous Toys Top Concern Amid Holiday Gift-Giving

Dangerous toys are a problem year-round, but heightened concern is warranted during the holiday gift-giving season.

In recent years, both federal authorities and even toymakers themselves have initiated higher standards, meaning the majority of toys on the market are safer than they've been in the past. Still, the U.S. Consumer Product Safety Commission reports toy-related injuries resulted in 200,000 hospitalizations last year.

The journal Clinical Pediatrics indicates the toy-related injury rate has spiked 40 percent between 1990 and 2011. According to their research, 3 million children were injured by toys during that time, which means there was a child getting hurt every 3 seconds. More than 50 percent of those were children under the age of 6.

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December 16, 2014

Mosley v. Lloyd - Comparative Fault No Bar to Compensation

In Florida, it is possible to be largely to blame for one's own injuries, and still collect damages from another party.skateboarding.jpg

At first blush, this might seem unfair. But it's worth pointing out one person's negligent actions do not negate those of another - even if the latter contributed to the former's injuries to a lesser degree. In a comparative fault system, each individual is only responsible for damages connected to his or her own actions. So if a person is 20 percent at fault, he or she will pay 20 percent of the damages.

This is a model that upholds personal responsibility, and does not bar those who incurred serious injury from seeking compensation for negligence simply because they played some role in what happened.

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December 15, 2014

Holiday In-Store Injuries a South Florida Risk

As the holiday shopping season nears a close, many people are hurriedly rushing from store to store in search of those last few necessities.

It should be noted, however, that there is a heightened risk of injuries throughout the year-end holiday period. These include slip-and-fall injuries, trip-and-fall accidents, falling merchandise from shelves or even a third-party attack by someone targeting shoppers exiting stores with expensive items.

In each case, owners and operators of these facilities owe their patrons the highest duty of care in ensuring their safety. Although not every injury that occurs at a store is compensable, many times these instances occur as a result of careless or negligent operators and property managers. You should not have to shoulder the burden of medical bills and lost wages because a store failed to maintain safe premises.

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December 6, 2014

Wilshire Insurance v. Poinciana Grocer - Premises Liability for Third-Party Assault

Property owners are required to keep the site reasonably free of foreseeable harm to guests and patrons under Florida law. Generally speaking, property owners aren't required to insure against harm caused by third parties except in certain circumstances.

Under Florida premises liability law, a property owner can be liable for third-party attacks when:
--There is a special relationship for which owner assumes a duty to protect.
--There is an element of foreseeability to the alleged crime (i.e., there have been similar crimes committed on site or nearby in the past).
--Precautions taken to protect or warn the guest of danger were inadequate.

There have been numerous examples of Floridians who were injured as a result of a third-party attack who successfully sue the site owner or manager for damages based on this aspect of premises liability law. However, these cases are often complex in nature and require the help of an experienced litigator. While a criminal prosecution may result in a judgment for restitution, in addition to other criminal sanctions, that's not standard, nor is it the primary purpose of the criminal justice system. That's why third-party lawsuits are initiated.

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December 4, 2014

Bilesky v. Shopko - Sanctions for Spoliation of Evidence

When important evidence in a civil injury case has been destroyed, altered or simply lost, this is called "spoliation of evidence." Because this kind of action can throw off an entire injury case, it might seem defendants in such actions would have incentive to conveniently "lose" key documents, video or other evidence.

In order to counter this, both federal and Florida courts have consistently held that sanctions are appropriate when spoliation of evidence occurs.

The kind of sanctions imposed by the court will vary depending on the egregiousness of the act, whether it was intentional and how important the lost evidence would have been to the other party. Some examples have included entering a default judgment on the issue of liability, imposition of evidentiary presumption, exclusion of expert witness testimony or dismissal of a claim or counterclaim.

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December 2, 2014

Dion v. Y.S.G. Enterprises - Injury to Drunk Driver May Not be Compensable

Drunk drivers cause unimaginable devastation. According to the Foundation for Advancing Alcohol Responsibility, nearly 700 people die every year in Florida due to drunk driving accidents. Thousands more suffer severe and permanent injuries.
Victims of drunk drivers in Florida may have several options when it comes to recovery of damages from at-fault drivers, vehicle owners, insurance companies and possibly from those who furnished alcohol to the driver (if he or she was a minor or known alcoholic).

However, drunk drivers themselves may have fewer options for recovery of damages for their own injuries. They may be able to collect the personal injury protection limits of their own insurance Beyond that, they may have a tough time suing anyone else for their own injuries.

F.S. 768.125, Florida's "Dram Shop Law," holds liability for drunk driving may only be imparted to a third party when a seller provides alcohol to a minor or someone they know (or should know) is habitually addicted to alcohol.

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November 30, 2014

Stryker Settles Faulty Hip Replacement Lawsuits for $1B

Patients who endured pain, suffering and additional surgeries as a result of faulty hip replacements manufactured by medical device maker Stryker will receive an average of $300,000 in a landmark mass tort settlement wherein payout is expected to exceed $1 billion.
According to media reports, the settlement is on behalf of an estimated 3,000 patients implanted with the Stryker Rejuvenate and ABGII modular hip implants. Those who suffered complications during additional revision surgeries will be eligible to receive additional compensation. Compensation is also available for those who require revision surgery, but are not medically cleared for the procedure. There is no overall cap for the settlement, and claimants are expected to begin receiving awards beginning next summer.

A previous settlement reached with DePuy last year was capped at $4 billion.

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November 29, 2014

DeMarco v. Travelers Ins. - Wrangling With Auto Insurers

The plaintiff in DeMarco v. Travelers Ins. Co. has been waiting for compensation from an auto insurance company for more than a decade. The man was severely injured as one of two passengers in a single-vehicle crash in September 2003 when the driver negligently struck two utility poles.

Only this past month did he finally receive that compensation - for nearly three times the insurance policy limit of $1 million.

Although the outcome of the case was favorable to plaintiff, it shows how difficult it can be to negotiate with insurance companies, even when claims are reasonable and legitimate. In this case, plaintiff's attorney offered multiple times prior to the conclusion of this case to settle for the policy limits. However, court records indicate the insurer for years denied the claim, dragged its feet and stalled action on the matter.

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November 28, 2014

Allstate v. Manzo-Pianelli - Permissive User and Umbrella Coverage

Umbrella insurance policies can be a great resource for those who have suffered injury as a result of a crash caused by a negligent driver - assuming that driver is covered under the umbrella policy.

Umbrella insurance is extra liability insurance offered to protect people from major claims and lawsuits. It can kick in when other polices have been exhausted, and usually can help to ensure victims of automobile negligence are fully compensated. That's because although injury victims can personally sue an at-fault driver for injuries, it's unlikely their pockets will be deep enough to cover what could end up being tens or hundreds of thousands of dollars in medical bills, lost wages and ongoing care needs.

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November 24, 2014

Highway Guardrail Dangers Exposed at Trial

A Texas jury has found the manufacturer of highway guardrails guilty of secretly altering system designs in order to save money, at the risk of putting drivers and passengers at grave risk of injury and death. miamiskyline.jpg

In a lawsuit brought under the False Claims Act by a competitor, it was found the company made changes to the end pieces of steel on the rails made from 2002 to 2005 without notifying the Federal Highway Administration (FHWA) as mandated. The move saved the company about $2 per rail, but also resulted in making the guardrails potentially dangerous. Rather than acting as a shock absorber, the guardrails effectively became spears, slicing through the length of vehicles, killing and maiming those inside.

The jury ordered the company, Trinity Industries, to pay $175 million for defrauding the government. Under federal statutes, that amount will be tripled to $525 million, to be split between the government and the whistleblower.

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