Civil Litigation

October 29, 2024

Jeffrey P. Gale, P.A. /// Spouse Married Post-Accident Entitled to Florida Wrongful Death Damages

In Ripple v. CBS Corp., 385 So.3d 1021 (Fla. 2024), the Florida Supreme Court held that a spouse who married the decedent after the onset of the injury that caused the decedent’s death can recover damages as a “surviving spouse” under section 768.21(2) of the Florida Wrongful Death Act (the Act). That provision allows a “surviving spouse” to recover “for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”

Relying on statutory interpretation, the Court rejected the argument that the common law “marriage before injury” rule bars recovery under section 768.21(2). The “marriage before injury” rule is limited to personal injury claims. It provides that where a couple is not married before the injury occurred, no consortium damages are available. See, e.g., Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2nd DCA 1980).

August 28, 2024

Jeffrey P. Gale, P.A. // Releasing Active Tortfeasors Does Not Release Vicariously Liable Tortfeasors

by Jeffrey P. Gale, P.A.

Active tortfeasors become legally liable for engaging in negligent conduct. Passive tortfeasors become liable for the negligent conduct of active tortfeasors through the legal principle known as vicarious liability. Examples include owners of motor vehicles whose permissive drivers cause crashes and employers for the acts of their employees.

Nowadays, active tortfeasors can be released from cases, even before a lawsuit is brought, without sacrificing the case against the passive tortfeasors. It wasn’t always this way in Florida.

Common law used to reason that settling with the active tortfeasor discharged the liability of the passive tortfeasor. “At common law and before the enactment of statutes to the contrary, a release of one joint tortfeasor released the other, Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).” Safecare Health Corp. v. Rimer, 620 So. 2d 161, 164 (Fla. 1993)(McDonald, J. dissenting).

In modern times, at least, the Florida Legislature has, for the most part, not been friendly to Plaintiffs. It has crafted statutes making it harder to gain access to the courthouse and to obtain just compensation for serious injuries once inside. An exception to this history concerns statutory changes that paved the way to the present state of the law regarding settlements with active tortfeasors.

The first statutory change was enacted in 1957. It provided that

A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

In Hertz Corp. v Hellens, 140 So. 2d 73 (Fla. 2d DCA 1962), the court interpreted the statute as applying “to all tort-feasors, whether joint or several, including vicarious tortfeasors.”

Subsequent Florida statutes — 46.015, 768.041, and 768.31 — and case law — e.g., Stephen Bodzo Realty, Inc. v. Willits International Corp., 428 So. 2d 225 (Fla. 1983), Florida TomatoPackers, Inc. v. Wilson, 296 So. 2d 536, 538 (Fla. 3d DCA 1974), JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), Crosby v. Jones, 705 So. 2d 1356, (Fla. 1998) — have brought us to the present state where it is safe to settle with, and dismiss, actively liable tortfeasors. However, while this may be true, caution must still be exercised with the settlement release.

First and foremost, avoid any language that could be construed as releasing other defendants, including vicariously liable tortfeasors. As further protection, add language to the release making it clear that it does not apply to any other defendants including but not limited to vicariously liable defendants.

Advantages of settling with the active tortfeasor include gaining access to funds and, in some instances, getting the active tortfeasor to feel friendlier to the plaintiff’s side.

August 1, 2024

Jeffrey P. Gale, P.A. // Volunteer Immunity in Florida for Simple Negligence

by Jeffrey P. Gale, P.A.

Some states exempt charities from liability for damages caused by their servants. Florida does not. Nicholson v. Good Samaritan Hospital, 199 So. 344 (Fla. 1940). This is consistent with the legal doctrine known as respondeat superior, which holds employers liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, also known as vicarious liability, applies even if the employer has done nothing wrong.

Most jurisdictions, either by state or federal law, exempt volunteers from all liability for injuries caused by negligence. This is an exception to the general rule that employees are liable for their negligence.

Congress enacted the “Volunteer Protection Act of 1997”

“to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.”

42 USC 14501 Sec. 2(b)

The Act preempts state law unless the state law provides greater protections to volunteers. Interestingly, it also authorizes states to enact laws under certain prescribed circumstances allowing civil suits against volunteers. Section 3(b).

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

by Jeffrey P. Gale, P.A.

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

June 12, 2024

Jeffrey P. Gale, P.A. // Sovereign Immunity Strikes Again — Not Good!!!

by Jeffrey P. Gale, P.A.

We just received a telephone call from a heartbroken mother whose 47-year old daughter died a few years ago after falling into a diabetic coma. A well-being, or safety check, call was made to the local police department a day after the young woman phoned to inform her employer that she wasn’t feeling well. A law enforcement officer went to her home that day, but her parents believe that the officer failed to take appropriate actions as her car was in the driveway and the windows of her home were open even though it was raining. The officer did not make contact with the woman or attempt to go into the home. She was found deceased in her home two days later. The mother believes her daughter was incapacitated but alive at the time of the safety call and could have been rescued if she had been discovered then and emergency care rendered.

February 12, 2024

Jeffrey P. Gale, P.A. // Avoiding Workers’ Compensation Immunity by Estoppel — Not So Fast!

by Jeffrey P. Gale, P.A.

Florida’s civil liability and workers’ compensation systems handle legal matters for people injured or who have died in accidents. The systems have some similarities and differences. The biggest differences are that the plaintiff must prove fault to recover under civil law, and recoveries for non-economic damages (such as pain and suffering) are not available in workers’ compensation cases. It is not always obvious which remedy route is the best to follow. Most of the time, the aggrieved party does not have a choice.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

February 3, 2024

Jeffrey P. Gale, P.A. // Look Past Native Indian Sovereign Immunity for Private Party Personal Injury Liability

by Jeffrey P. Gale, P.A.

In Florida, Native American tribes operate popular business establishments. On occasion, patrons frequenting the establishments are hurt by dangerous conditions created through negligence.

The U.S. Constitution (Article I, Section 2, Clause 3; Article I, Section 8; The Fourteenth Amendment), treaties, and laws, authorize Native American tribes to govern themselves as sovereign nations within the United States.

Florida’s personal injury and wrongful death laws hold parties accountable for their negligence. As independent sovereign nations, the tribes are not subject to these laws.

Until 2021, when the Seminole Tribe signed a gaming compact with the state of Florida, the tribe could not be forced to pay any damages to individuals hurt on their property. Under the Compact, the Seminoles agreed to be subject to damage awards capped at $200,000 per individual/$300,000 per claim.

January 28, 2024

Jeffrey P. Gale, P.A. // Abuse of Power

by Jeffrey P. Gale, P.A.

Republicans control all phases of lawmaking at the state level in Florida. This has been the case since the election of Jeb Bush as governor in 1998, complementing their majorities in the Florida House and Senate.

Presently, they rule by supermajority in the Legislature, meaning they don’t have to negotiate with members of other parties to pass legislation. With the encouragement of current governor Ron DeSantis, they have been wont to stoke the flames of culture wars by enacting draconian laws such as those banning books and hurting the LGBTQ community.

While their culture war laws get the headlines, Republicans also work in quieter ways to undermine the fabric of American society. One of their favorite tricks is to weaken the rights of individuals to seek redress within the legal system.

Last legislative session they passed bills reducing the statute of limitations in personal injury cases from four years to two years and barring all personal injury claims where the injured party is more than 50% at fault, even just 51% (768.81(6)).

This latter measure may appear reasonable on its face to the uninitiated, but it is not. In years past damage awards were apportioned by percentage of fault through a legal principle known as comparative fault. For example, if a person who was 51% at fault was awarded $1,000,000 in damages by a jury, the court would reduce that person’s share of the award to $490,000. Under the legislation passed in 2023, that same person would walk away with nothing even if another party was 49% at fault.

October 14, 2023

Jeffrey P. Gale, P.A. // Sovereign Immunity (“The King can do no wrong”) Harms We the People

by Jeffrey P. Gale, P.A.

One of the primary public policy reasons for having a robust civil justice system that is able to exact full compensatory damages from negligent actors is to encourage safe conduct. Short of criminal punishment, nothing motivates people and corporations to act responsibly more than the threat of losing money.

Sovereign Immunity is a legal concept applied in monarchies and constitutional monarchies such as the United Kingdom, Japan, Jordan, and the Netherlands, to make the sovereign or state immune from civil suit or criminal prosecution. It is derived from the Latin maxim Rex non potest peccare, meaning “the king can do no wrong.” Florida has enacted a modified version of sovereign immunity in the area of civil law involving personal injuries and wrongful death.

Under Florida civil law, people and companies who are not protected by sovereign immunity can be held accountable up to the full measure of the damages caused by their negligence. Those damages can include pain and suffering, medical expenses, and loss of income. In cases involving serious injuries or the loss of life, the full measure of damages can be in the millions.

Florida’s sovereign immunity law limits the amount of compensation the sovereign can be compelled to pay. Under section 768.28(5)(a), Florida Statutes, the sovereign, described as “the state and its agencies and subdivisions,” is limited to paying $200,000 per individual, $300,000 per claim. In other words, the most a sovereign will ever have to pay in a single case is $300,000. It does not matter how substantial the actual losses are.

This arbitrary sovereign immunity cap defeats the public policy of encouraging safe conduct.

October 6, 2023

Jeffrey P. Gale, P.A. // Duty and Proximate Cause are Essential Elements of Every Florida Personal Injury and Wrongful Death Negligence Case

by Jeffrey P. Gale, P.A.

Duty and proximate cause are essential elements of every Florida personal injury and wrongful death negligence case.

DUTY: “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” See Kaisner v Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)).

PROXIMATE CAUSE: “The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” McCain v. Florida Power Corporation, 593 So.2d 500, 502 (Fla. 1992).

While the concept of foreseeability can be relevant to both elements, the concept “relates to duty and proximate causation in different ways and to different ends.” Id. at 502. Hence, merging the two elements into a single hybrid foreseeability analysis would be incorrect.