Articles Posted in Litigation

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chairs.jpgAccidents caused by broken chairs are not uncommon. In some cases, the injuries can be severe (e.g., broken bones; herniated intervertebral discs). Through normal wear and tear, defects can develop that create conditions for imminent accidents. To avoid these dangerous situations, it is necessary to be reasonably observant and even pro-active with regard to determining the condition of chairs. This is especially so for commercial enterprises catering to the public.

In Fontana v. Wilson World Maingate, 717 So. 2d 199 (Fla. 5th DCA 1998), Fontana, while a guest of the defendant/appellee’s hotel, sat in a chair which was defective causing it to collapse and injure her. The defendant did not deny that the chair was defective. However, at trial it argued that the case should be dismissed because there was no evidence that it knew or reasonably should have known of the defect. The trial judge agreed, leading to a directed verdict in favor of the defendant.
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law books.jpgMcCall vs. Alabama Bruno’s, Inc., 647 So.2d 175 (Fla. 1st DCA 1994): Florida follows the general rule that the employer of an independent contractor is not liable for the contractor’s negligence because the employer has no control over the manner in which the work is done, except when one of three exceptions apply. Those exceptions involve:

  1. Negligence in selecting, instructing or supervising the contractor;
  2. Non-delegable duties arising out of some relation toward the public or the particular plaintiff;
  3. Work which is specially, peculiarly, or “inherently” dangerous.

Peculiar does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk, but instead refers to a special recognizable danger arising out of the work itself. In order for the vicarious liability rules to apply, it is not essential that the work which the contractor is employed to do be in itself an extra-hazardous or abnormally dangerous activity, or that it involve a very high degree of risk to those in the vicinity. It is sufficient that it is likely to involve a peculiar risk of physical harm unless special precautions are taken, even though the risk is not abnormally great. A “peculiar risk” differs from common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. Restatement (2d) Torts Sect. 416. Rules imposing vicarious liability on employers for the acts of independent contractors arise “in situations where, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor” and it is commonly stated that “the employer is under a duty which he is not free to delegate to the contractor.” Nondelegable duties have been found under Florida law to arise out of “inherently dangerous activity,” activity involving “inherently dangerous elements,” or out of the creation of an “inherently dangerous condition.”

Webb vs. Priest, 413 So.2d 43 (Fla. 3rd DCA 1982): The general rule in Florida is that an owner is not liable for the acts of an independent contractor except when (a) the activity is inherently dangerous (see Ferguson vs. Westinghouse, 408 So.2d 659 (Fla. 3rd DCA 1981)); (b) the owner/employer had contractually assumed responsibility (Levitz vs. Continental Equities, 411 So.2d 221 (Fla. 3rd DCA 1982)); (c) there is legally imposed responsibility (Concord Florida vs. Lewin, 341 So.2d 242 (Fla. 3rd DCA 1977)); (d) the owner/employer knew or had reason to know that the independent contractor would not perform in a satisfactory manner (Williams vs. Wometco Enterprises, 287 So.2d 353 (Fla. 3rd DCA 1974)); (e) where the independent contractor had apparent authority to act on behalf of the owner/employer (Thomkin Corp. vs. Miller, 156 Fla. 388, 24 So.2d 48 (Fla. 1945).
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mri.jpgFlorida Rule of Civil Procedure (FRCP) 1.360(a)(1)(A) allows the defendant in a personal injury case to have a qualified expert of its own choosing perform a medical examination on the plaintiff with regard to the injury or injuries in controversy. This type of examination has come to be referred to as a “compulsory medical examination,” or “CME.”

The notice of the examination is served by the defendant on the plaintiff’s attorney. The Rule provides that the request “shall specify a reasonable time, place, manner, conditions, and scope of the examination….” The reason for the specificity requirement is to give the plaintiff the opportunity to impose objections to the request if necessary.

The question often arises as to whether or not the CME doctor is allowed to perform invasive testing such as X-rays. The answer is a conditional Yes.

In Schagrin v. Nacht, 683 So. 2d 1173 (Fla. 4th DCA 1996), paragraph 4 of the defendant’s request read as follows:

The scope of the examination is of a urological nature concerning conditions of the Plaintiff relating to the accident which is the subject matter of this lawsuit. The exam shall include any such tests that the doctor feels are necessary for a complete and thorough examination of the Plaintiff.

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thumbing nose.jpgIn 2004, more than 80-percent of Florida voters passed Amendment 7, technically Article 10 Section 25 of Florida’s Constitution, commonly known as the “Patients’ Right to Know Act.” The amendment provides that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

Not surprisingly, a number of hospitals quickly lined up to challenge the scope of the voter-approved constitutional amendment. In essence, they sought to keep from having to produce documents relating to the investigation of adverse medical incidents, and in one of the cases, relating to the selection, retention, or termination of a doctor accused of medical negligence.

In 2008, The Florida Supreme Court, in Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla., 2007), ruled against the hospitals, declaring that the shroud of privilege that existed in Florida with regard to medical records had been lifted by Amendment 7 to “allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers.” (The quoted language was used by the Supreme Court from the written opinion of Judge Sawaya in Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006).
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doctor conference.jpgThe question often arises in civil cases as to which witnesses the Plaintiff’s lawyer is prohibited from communicating with outside the presence of the Defendant’s counsel. The answer is governed by Florida Rule of Professional Conduct 4-4.2.

The Rule was put to the test in the context of a medical malpractice case in Lee Memorial Health System, d/b/a Healthpark Medical Center v. Jeffrey Smith and Melissa Smith, individually, and as Parents and Natural Guardians of Kiarra Summer Smith, a minor, 40 So.3d 106 (Fla. 2d DCA 2010). The Smiths filed a medical malpractice action on behalf of their daughter against Lee Memorial. In their complaint, they alleged that the hospital fell below the standard of care in calculating nutritional solutions. The injuries alleged in the complaint included permanent neurological damage, lack of normal head growth, and cerebral palsy.

While the suit was ongoing, the child was receiving care and treatment from a pediatric neurologist and several other physicians who were employed by Lee Memorial. The child’s lawyers tried to meet with the doctors to discuss her medical condition. Lee Memorial asked the court to prohibit the meetings. The circuit court refused, so Lee Memorial petitioned the district court of appeal to do so. It also refused, reasoning as follows:

The prohibition against communicating with members of a represented organization [like Lee Memorial] is applicable to only three categories of persons or employees: (1) those who supervise, direct, or regularly consult with the organization’s lawyer concerning the matter; (2) those who have the authority to obligate the organization with respect to the matter; or (3) those whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

The court decided that none of the child’s treating doctors fell within any of these categories.
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doctor.jpgUninsured Motorist (UM) coverage is 1st party insurance maintained for the benefit of individuals injured by uninsured motorists.

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An insurance policy is a contract. Unless preempted by a statute or case law, the terms of the policy determine the rights and responsibilities of the parties to the contract, namely the insurer and the insured.

A common policy requirement is for the insured to submit to what is called a Compulsory Medical Examination (CME). A CME is where the insured, who is seeking compensation under the policy for an injury or injuries, is examined by a doctor selected by the insurance company. When requested by the insurer, submitting to the CME is a condition precedent to receiving benefits under the policy, meaning that the insurance company can deny benefits to the insured for failing to attend the CME.

Disputes have arisen between insurer and insured over what is allowed by the CME provision. How frequently may the insurer force the insured to attend CMEs? How far can the carrier make the insured travel to attend the CME? Is there limit on the type of doctor who may perform the CME?
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government cut2.jpgHurray for the Miami Heat. Boo (and shame on) Micky Arinson, the billionaire owner of the Heat.

Micky Arison also owns Carnival Corporation, the world’s largest cruise operator. While the company operates many of its ships from American ports, enjoying the laws and protections only America can afford, it hides behind a labyrinth of one-sided procedures and antiquated laws that effectively limit the ability of its passengers to be fairly compensated for serious losses suffered on the high seas, including the most serious loss of all, the loss of life.

First, the procedural issues:

  • Pursuant to the passengers’ ticket, passengers who are injured on cruise ships operated by Carnival, Celebrity, Norwegian, Costa, or Royal Caribbean are required to bring claims in Federal Court in South Florida.
  • Within six months of an accident, injured passengers must submit a detalied letter to the defendant describing the accident. Failure to do this may bar further action by the victim.
  • A one-year statute of limitations. In other words, a lawsuit must be brought within one year of the accident.
  • The victim must travel to Miami to be deposed. In addition, the defendant has the right to perform a medical examination on the victim in Miami, and the mediation and the trial take place in Miami. These venue issues can present significant hardships to the plaintiff, who usually resides in another state or another country altogether.

Perhaps the greatest affront is the limited recovery afforded survivors of loved ones who die on the high seas as a result of negligence occurring onboard a ship. This limitation is prescribed by the Death on the High Seas Act (DOHSA). Where a plaintiff dies on the high seas beyond a marine league [i.e., three nautical miles] from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the survivors of the decedent are limited to pecuniary losses – essentially related medical bills and funeral expenses. Non-economic damages such as pain and suffering, loss of society, services and comfort of spouse, parent or child cannot be claimed. (Contrast these limits to Florida’s Wrongful Death Act, which affords certain survivors the right to recover these damages.)
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In the wake of The Miami Herald’s excellent series, Neglected to Death (Part 1; Part 2; Part 3), on the dire health and safety issues associated with Florida’s nursing home/assisted living facility industry, this is a good time to discuss some legal propositions closely related to the subject.

The Herald series focused on the problems and the state’s role, through AHCA and law enforcement, to control the situation. It paid little attention to the important role the civil justice system can and does play in regulating the system.

Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.

In Florida, nursing home residents and their families harmed by negligence can bring claims through the civil justice system against those responsible for causing the harm. Such claims are brought under the parameters established by Chapter 400 of the Florida Statutes.

Even though victims may have the right to sue under Florida law, there is no guarantee of recovering compensation from the wrongdoers. This is because many of the facilities do not carry adequate insurance to cover losses or operate through a legal tangle of corporations and fictitious names designed to frustrate collection efforts.

Estate of Canavan v. National Healthcare Corp., 889 So. 2d 825 (Fla. 2d DCA 2004), provides some assistance to those trying to collect for nursing home negligence. The case, involving a lawsuit brought by the estate of a deceased nursing home resident, allows victims’ attorneys to hold a company’s directors or statutory managers personally liable for policy-level decisions affecting the operation of a long-term care facility.
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What are the rights of expectant parents for the death of a fetus from an incident like a slip and fall or medical malpractice? Surprisingly, because a fetus is not considered a person under Florida’s Wrongful Death Act, Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), neither parent may bring a claim for wrongful death or for loss of companionship. U.S. v. Dempsey, 635 So.2d 961 (Fla. 1994).

Because the law treats the death of a fetus as a physical injury to the mother, the mother may bring a personal injury action against the at-fault party. The action can include a claim for emotional injuries.

The viability of a father’s claim for negligent infliction of emotional distress is far less certain. The answer depends, in part, on the mysterious and unpredictable “impact rule.”

In Florida, whether a person may recover for emotional injuries is governed by the impact rule. Florida’s impact rule provides as follows: “[b]efore a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress injuries must flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical illness.” Fla. Dep’t of Corr. v. Abril, 969 So.2d 201, 206 (Fla. 2007).”

The rule was developed to limit “fictitious or speculative claims.” Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850.
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Whether a person injured on real property owned or controlled by another will be successful in bringing a claim for damages, depends in large part on the injured person’s status on the property at the time of the accident. The general categories and the duty owed under each are set forth in the following outline:

  • Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Child in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (See my previous blog on this subject.)
  • Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.
  • Licensee By Invitation. A social guest. Duty: same as for Public Invitee.
  • Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers partying in a parking lot owned by a business establishment.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed “traps” of which the owner has actual knowledge).
  • Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

Independent contractors injured on the premises do not fit squarely within any of these categories. As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in their work. As the Supreme Court observed in Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973): if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable.

A second line of cases bars the claims of independent contractors whose injuries were sustained while performing the independent contractor’s specialized work. In Morales v. Weil, 44 So. 3d 173 (Fla. 4th DCA 2010), the contractor was hired to demolish a barn with a roof damaged by two hurricanes. The damage was obvious and included a hole through the roof that was visible to the employees. However, in the course of the work one of the employees fell through a weakened roof panel and was injured. The Fourth District reviewed the applicable law and affirmed a summary judgment for the barn owners. The Court concluded that “the [owners] were in no better position than the [injured contractor employee] to assess the level of danger that the job posed. Consequently, the [owners] owed him no duty to maintain the roof in a reasonably safe condition.” Id. at 179.
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