Florida Injury Lawyer Blog

Nielsen v. Bell – Child Negligence in Injury Lawsuit

May 10, 2016 | Associates and Bruce L. Scheiner

Although children are typically the victims in injury lawsuits, they can sometimes be the ones who cause injuries.

The question of whether parents may be held liable will depend on a number of factors, including:

The age of the child;
The child’s developmental ability to exercise caution;
Child’s mental capacity;
Specific details of the accident.

In general, Florida law holds that children under 6 are incapable of negligence – including comparative negligence for their own injuries. In cases where children are found negligent, parents – who are legally responsible for the children – may be held vicariously liable due to the legal theory of respondeat superior (Latin for, “Let the master answer”). But parents can’t be held vicariously liable unless there is a legitimate claim of liability against a child.

A recent case before the Utah Supreme Court asked the court to consider: How young is too young to be negligent? Continue reading ›

Report: Florida Fatal Van Crash Driver Impaired by Antihistamine

May 8, 2016 | Associates and Bruce L. Scheiner

Little more than a year ago, the driver of a van full of churchgoers ran a stop sign and crashed in a shallow body of water off a Florida highway in Glades County, killing eight of the 18 passengers inside.

Now, authorities say the driver may have been impaired by over-the-counter antihistamines. Investigators with the National Transportation Safety Board (NTSB) weren’t able to uncover much information about the amount of sleep the driver had prior to the van crash in March 2015, so determining whether that was a factor was difficult. However, drug and alcohol testing on the driver did not reveal the presence of any other potentially impairing substances.

We do know that the passenger van lacked seat belts (only the driver and front seat passenger were belted in), the vehicle was overloaded and it was late at night. The passengers were members of the Fort Pierce Independent Haitian Assembly of God and were on their back from a Palm Sunday celebration at a sister church in Lee County, the Eglise de Dieu La Jerusalem Celeste. Continue reading ›

Families of Two Killed in Florida Bike Accident Receive $7M in Damages

May 7, 2016 | Associates and Bruce L. Scheiner

A South Florida bar has been ordered to pay $7 million to the families of a young couple killed in a bike accident on Labor Day 2013. The pair was riding a tandem bicycle when they were struck by a drunk driver who had reportedly just left the bar intoxicated.

What’s interesting about this case is that normally, victims of drunk drivers in Florida would not be able to collect damages from the establishment that served the driver alcohol except in very limited circumstances.

However, defendant bar was the employer of the drunk driver, who was reportedly drinking throughout his shift and left intoxicated after a friend failed to pick him up as promised. That may have made a difference in this case. Continue reading ›

Bicycle Tourism Prompts Bike Safety Investments

April 30, 2016 | Associates and Bruce L. Scheiner

A growing number of tourism officials have cozying up to the bicycle advocacy movement amid recognition of the economic potential of this subgroup of tourists, according to a recent report by Stateline.org, a publication of The Pew Charitable Trusts.

Biking is becoming increasingly popular as people embrace it not only as a form of healthy recreation, but as a green alternative to driving a motor vehicle. According to the League of American Bicyclists, the number of bicyclists doubled from 1.7 billion in 2001 to 4 billion in 2009 – and the numbers have continued to grow. Bicycle commuting rates are up more than 100 percent from 2000 to 2013. People who have fallen in love with this sport are also recognizing it as a way to see the country from a different perspective, and that’s given birth to bicycle tourism.

Although bicyclists make up a small portion of out-of-state visitors, they are a much-desired one, according to the report. They tend to stay longer and spend more when they come.

Florida is an ideal spot for many cyclists across the East Coast and beyond due to its flat terrain, unparalleled scenery and mild winters. But there is one major hurdle: Safety. Continue reading ›

Study: Distracted Driving a Big and Growing Problem in South Florida

April 27, 2016 | Associates and Bruce L. Scheiner

A new study analyzing the prevalence of distracted driving captured video of several thousand motorists moving along a South Florida highway. In just 20 minutes, study authors found:

150 drivers talking on the phone;
17 drivers texting;
12 drivers eating;
6 drivers distracted by some other form (i.e., reading, applying makeup, staring at the mirror, looking in the backseat, etc.)

What that tells us is that of the 2,000 cars that went by, 9 percent of drivers were preoccupied with some task other than driving. That’s probably a low number because it only counts those distractions that are actually observable. Distractions such as listening to the radio or having an involved conversation with a passenger are not immediately observable from the outside. Again – this was on a highway, where speeds easily exceed 70 mph. Bear in mind that when you take your eyes off the road to send a text while traveling at 55 mph, you travel the length of a football field without looking. Continue reading ›

Universal Underwriters Ins. Co. v. Winton – Garage Liability Insurance for Auto Dealerships

April 24, 2016 | Associates and Bruce L. Scheiner

A night of fun in Oklahoma turned tragic when a 48-year-old driver caused a motor vehicle accident that killed five people – including herself – and severely injured two others. Aside from the driver, those killed were between the ages of 18 and 23. The two injured were 17 and 22.

The families of two decedents (one of whom was a young mother) and two survivors sought compensation from the estate of decedent. But she only had a bodily injury liability coverage of $50,000 – hardly enough to compensate even one of the victims for their losses. Indeed, the estate settled the cases for $3 million per each survivor and $5 million for each family whose loved one died. The problem was who would pay those amounts. Decedent’s insurance was only $50,000 – and that was paid.

The approved settlement indicated collection of damages would be limited to applicable insurance policies. Soon after the settlement was approved, three insurance carriers sued the victims for a declaratory judgment that would assert they were not liable to pay the insurance settlement. In the case of Universal Underwriters Ins. Co. v. Winton, plaintiffs argued either that one of the insurers was liable under garage and umbrella policies because the dealership still owned the vehicle, or alternatively that another dealership still owned the car and therefore a different two insurance policies covered the accident. Continue reading ›

Slip-and-Fall Head Injury in Outdoor Plant Sales Area Leads to Lawsuit

April 21, 2016 | Associates and Bruce L. Scheiner

A woman was shopping for plants on a steamy summer afternoon in Las Vegas three years ago when she slipped and fell on a puddle of water. Upon falling, she smacked her head on the concrete floor of the outdoor facility.

She suffered serious injuries, including a fractured skull and traumatic brain injury. She is no longer able to smell or taste. For the rest of her life, these are pleasures the mother-of-three will no longer derive.

Now, she is seeking compensatory and punitive damages from the store, arguing her slip-and-fall injury was foreseeable and preventable and the store owed a duty to make the site safe for customers. In order to succeed in a claim for punitive damages, one needs to show not only was defendant negligent, but that defendant was grossly negligent or displayed wanton or reckless disregard for the safety and well-being of others. Here, plaintiffs argue this is proven based on the fact there were 33 prior incidents at other stores within the chain in which people slipped and fell in the outdoor garden sales area. Continue reading ›

Fenimore v. Regents of Univ. of Cal. – Hospital Fall Injury Lawsuit

April 18, 2016 | Associates and Bruce L. Scheiner

The family of an elderly man who died after suffering a fall soon after his admission to a hospital will have the opportunity to pursue elder abuse claims against the facility and staff for alleged negligence and wrongful death.

In Fenimore v. Regents of Univ. of Cal., a lower court had sustained a demurrer requested by the defense, which would have blocked this cause of action. However, the California Court of Appeals, Second Appellate District, Division Eight, reversed, finding trial court shouldn’t sustain a demurrer when plaintiff has a stated cause of action under at least one viable legal theory – and there were several in this case.

Cases like this require an experienced and dedicated injury lawyer to determine the best course of legal action. Anytime a claim involves a medical facility – even if it does not involve medical negligence – must be approached with careful strategy. Continue reading ›

Perry v. Asphalt & Concrete Servs. – Insurer Info in Injury Litigation

April 15, 2016 | Associates and Bruce L. Scheiner

You may have wondered why in injury litigation, we refrain from naming the insurer in the initial action. This is why, for example, you will see spouses suing each other for crash-related injuries, rather than suing the insurance company – even if that’s ultimately the goal.

The reason has to do with the fact that courts have found that the presence or lack of an insurance policy can be prejudicial in a civil case. The thinking is that if a jury is aware that a defendant has ample insurance, they may be more likely to award much higher damages to the victim than they would if they knew the defendant has no insurance and would be personally liable to pay damages.

The courts take this matter extremely serious, which is why the Court of of Appeals of Maryland (the highest court in that state) recently affirmed a reversal of a truck injury verdict and remanded the case for a new trial for a violation of this standard. The court noted that lack of insurance coverage is irrelevant and inadmissible in a lawsuit alleging negligent hiring where the evidence doesn’t establish the proximate cause of plaintiff’s injuries. Continue reading ›

Moreno v. TLSL – Trucking Accident Lawsuit

April 13, 2016 | Associates and Bruce L. Scheiner

Eyewitness testimony – whether in a criminal or civil trial – must be weighed carefully by all involved. On one hand, the word of someone who witnesses an event firsthand is powerful in a courtroom. On the other hand, it can be notoriously inaccurate.

Last year, researchers published an article in the journal Memory that analyzed the capability of adult and child witnesses to accurately recollect events from the past and provide reliable testimony. They concluded there were gaps in what the science of memory says about reliability and how such testimony is used in trial. It’s not that firsthand accounts aren’t valuable, but they need to be properly weighed and, if necessary, challenged.

It was the fallibility of an eyewitness account that resulted in summary judgment in favor of the defense in a trucking accident case before the Mississippi Supreme Court recently. In Moreno v. TLSL, Inc., the only one independent witness who saw the trucking accident that killed two people and seriously injured a third. Unfortunately, key elements of her recollection proved unreliable, and ultimately sunk the case. Continue reading ›