Articles Posted in Personal Injury

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Two recent Florida court cases have affirmed punitive damages awarded in product liability litigation. One of those involved a $12.3 million punitive damage award against a tobacco company in a smoking-related death (that was a decision by the 2nd District Court of Appeal) and another involves $22.5 million punitive damage award against the same company in a different smoking-related death (about which the Florida Supreme Court declined to hear defendant’s appeal on a claim of the award being unconstitutionally excessive). injury lawyer

Punitive damages, as outlined in F.S. 768.73, are those that are awarded to punish the defendant, rather than simply compensate the victim for losses (which the purpose of compensatory damages). Punitive damages are awarded in addition to one’s actual damages, but only in certain circumstances. It is by no means a given.

According to a 2002 study by researchers at Cornell University, punitive damages are awarded at 3.5 percent of jury trials won by plaintiffs and 5.3 percent of bench trials (before a judge) won by plaintiffs. The highest rate of punitive damage awards occurs (as in these tobacco litigation cases), where an individual sues a large corporation in a bench trial. Under those circumstances, 6.7 percent of plaintiffs are awarded punitive damages. Cases involving fraud and intentional tort were the most likely to result in an award of punitive damages.  Continue reading →

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The bankruptcy of a negligent driver who caused injury to a husband and wife may prevent plaintiffs from actually seeking damages against the defendant, but it doesn’t shield the auto insurer from having to pay out.car accident attorney

That was the ruling of the Alabama Supreme Court in a recent case involving two car accident claimants. Although this is an out-of-state case, it deals with matters that could just as easily arise in Florida, and justices often consider rulings by sister courts that have weighed similar issues.

To understand the court’s ruling, we must first explain a bit about U.S. Bankruptcy Code and how it impacts personal injury claims. A Chapter 7 bankruptcy in particular involves a trustee who gathers and sells a debtor’s nonexempt assets and uses the proceeds to pay creditors in accordance with the provisions of bankruptcy law. Part of the debtor’s property may be subject to liens that can be paid to creditors. Continue reading →

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Your personal injury attorney must carefully consider any offer of pre-trial settlement by the defense in a civil case to better your chances you won’t run afoul of F.S. 768.79 at the conclusion of trial. The very first section of this statute stipulates that if a defendant files an offer of settlement that is not accepted by plaintiff within 30 days, defendant is entitled to “reasonable costs and attorney’s fees” incurred if the final judgment is that defendant was not liable OR the judgment obtained is at least 25 percent less than the original pre-trial settlement offer. car accident attorney

Obviously, there is no way to know for sure how a case is going to be decided or how much a plaintiff may be awarded in a successful case. That makes turning down settlement offers a risk. This is why having a personal injury lawyer with extensive local pre-trial negotiation and trial experience is invaluable. Knowing how such cases have gone in this same jurisdiction or in front of this same judge in the past is important to your case.

An example of this was recently weighed by the Alaska Supreme Court in Whittenton v. Peter Pan Seafoods, Inc. This was a truck accident case alleging vicarious liability of the negligent truck driver’s employer. The question was whether defendant’s offer of settlement prior to trial entitled defendant to collect attorney’s fees – even though plaintiff had won.  Continue reading →

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There are three basic types of civil liability (legal responsibility) in Florida personal injury cases:

  • Negligence
  • Intentional Torts
  • Strict Liabilitypersonal injury lawyer

Intentional torts are those that involve actions like assault and battery – some kind of intentional action that caused physical harm to someone else. Strict liability most typically arises in product liability cases, and involves a legal responsibility – even though there was no actual negligence or intent to do harm. Rather, it is simply by the design/ production/ distribution of a defective product that caused harm that a defendant can be liable.

By far, most personal injury claims and lawsuits involve a claim of negligence. This is usually what is alleged in cases involving car accidents, slip-and-falls and medical malpractice. Negligence is an unintentional act or inaction (by someone who had a duty or obligation to conform to a certain standard of conduct) that resulted in injury to another person.  Continue reading →

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When a personal injury occurs in the course of an activity the injured person knew was dangerous, the court may shoot down claims of liability, citing the assumption of risk doctrine. However, Florida courts (specifically within the 1983 ruling of Kuehner v. Green) have historically limited successful use of the assumption of risk doctrine to cases involving:

  • Contracts not to sue (i.e., liability waivers);
  • Injuries arising out of contact sports.injury lawyer

Florida courts have held that rather than preventing a plaintiff from proceeding with a lawsuit at the outset, jurors should be allowed to decide whether plaintiff’s assumption of the risks should be factored into whether plaintiff was fully or partially at-fault for the the accident that resulted in injuries. Continue reading →

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The potential for falls and serious injuries on ladders is a very real one, as more than 20,000 people are injured and nearly 135 die annually in the U.S. due to ladder falls just in the workplace. Although construction workers are the most at risk for obvious reasons, they aren’t the only ones. Any homeowner – particularly those who prefer to do household maintenance themselves, may find themselves at risk of a fall.personal injury

Whether these incidents can be grounds for an injury lawsuit, however, will depend on a variety of factors. For instance, if you were using a ladder on a property owned by another (say, a retailer), you might have grounds for a premises liability claim if you can show the ladder presented an unsafe condition and the property owner was aware of it or should have been aware of it and failed to warn you about it. If, however, you are injured by a ladder you are using at home, you may want to look into whether the ladder itself was defective. It certainly would not be the first time.

In fact, a jury in a federal court in Florida recently awarded nearly $5 million to a plaintiff who alleged injury as a result of a defective ladder. In the case of Ore v. Tricam Industries Inc. et al., a South Florida resident filed the personal injury lawsuit in the U.S. District Court for the Southern District of Florida. He alleged at least one of the rivets in the ladder manufactured and sold by defendants failed while in normal use. The holes were reportedly punched in the wrong place in the fiber glass. The ladder was never properly inspected before it was shipped to the hardware store for sale. The hardware store also failed to look it over before selling it. Continue reading →

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The explosive power of fireworks is an effective means to evoke strong emotions – including excitement and patriotism. That’s part of why they are so popular around the Fourth of July. fireworks

But fireworks liability is an important topic of consideration this time of year too because all too often, negligent use or reckless mishandling of firearms can lead to serious injuries.

The NFPA (National Fire Protection Association) reports fireworks caused an estimated 15,600 reported fireworks in the U.S., including 1,400 structure fires, 200 vehicle fires and 14,000 outside and other fires. In addition, hospital emergency rooms saw an estimated 10,500 people for fireworks-related injuries just in a single year. The majority of those were burns. Injuries were inflicted mostly to hands and fingers, but also to head/ face/ ear and also to eyes. Arms, legs and trunks suffered the rest. Continue reading →

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In a ruling that will have a major impact on all Florida personal injury lawsuits, the Florida Supreme Court has rejected a more stringent standard of evidence known as the Daubert Standard, in favor of the less restrictive Frye Standard that it followed for years.

Florida legislators in 2013 voted to alter the Florida Evidence Code to a switch from Frye to Daubert, and Gov. Rick Scott signed that measure into law, with favor from the defense bar and big business clients. However, the courts never formally followed suit, and it seems with this ruling, they don’t intend to do so. The court cited constitutional concerns.

We recognize legal discussions on evidence standards can sound like dry jargon. But here’s tinjury lawyerhe reality: It’s likely to have a direct impact on your Fort Myers injury lawsuit. The reason is that the Daubert requires a higher standard of proof just to get a foot in the door. That can mean your case could be killed before it ever even gets started, which plaintiff attorneys like us view as an issue of access to the courts. Specifically, Daubert involves the admissibility of expert witness testimony. That’s not to say “Frye” is a free-for-all, by any means. However, it does give you a better chance of getting your valid case in front of a judge and reaching a favorable solution.  Continue reading →

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Proponents of tort reform are pressing forward with a series of bills that, if passed, would make it increasingly difficult to file an injury lawsuit, to pursue class action litigation or to obtain just compensation. gavel

The term “tort reform” is a tidy way of explaining efforts that make it harder for those who have suffered serious injury due to someone else’s negligence to seek and obtain justice. It’s wrapped in a pro-business agenda, and is predicated on the notion that plaintiff attorneys are greedy and frivolous claims are rampant and plaintiffs unfairly are awarded millions – even when it was largely their own fault for being hurt. This characterization overlooks the reality of our civil justice system and the fact that it can already be an uphill climb for many injury plaintiffs. Yet it’s been very successful. Look no further than the so-called “McDonald’s coffee case,” wherein an elderly woman was awarded $1 million (or two days’ coffee sales) after she was so severely burned by the company’s hot coffee that she nearly died. The fast-food restaurant was selling coffee far in excess of what would be considered safe temperatures and thousands of people had suffered burns in the year prior. Yet tort reform proponents managed to successfully rewrite the script for the American public, who now generally look back on that case as a class “frivolous lawsuit.”

Now, with politicians friendly to tort reform now controlling both houses of Congress and a president considered pro-business, tort reform supporters are pressing forward with their agenda.  Continue reading →

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A spectator who was injured in a 2013 NASCAR crash at the Daytona International Speedway recently settled with the racing company, prior to the collection of depositions and other extensive discovery.carrace

The terms of the agreement are confidential, which means we don’t know how much the spectator received from the company for its alleged negligence. What we do know is that the move was most likely strategic by NASCAR, given that settling at this juncture meant it was able to avoid enduring driver depositions, as well as making fencing and crash reports public.

According to ESPN.com, plaintiff sued International Speedway Corp., parent company of the Daytona International Speedway. The complaint detailed how plaintiff, a resident of Florida, was seated in the upper deck, watching a race, when he was suddenly and unexpectedly struck in the head with a heavy piece of debris. As a result of the incident, plaintiff suffered catastrophic traumatic brain injury.  Continue reading →