Articles Posted in Litigation

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epidemiology.jpgEpidemiology is the study of patterns of health and illness and associated factors at the population level. Forensic (applying science to answer questions of interest to a legal system) epidemiology can be useful in personal injuries cases to prove causation of an injury.

The personal injury claimant has the burden of proving that his/her injuries or conditions were more likely than not caused by an accident or offending agent (e.g., smoking). This burden becomes more difficult when the complained of injuries and conditions can occur naturally without a known precipitating cause. Examples include herniated intervertrebral discs and lung cancer.

Various types of experts, including doctors and biomechanists, are used on both sides to present evidence regarding the issue of causation. The expertise of forensic epidemiologists is greatly underutilized.

Epidemiologists use “relative risk” to compare the chance of injuries and conditions being caused in certain ways. Two examples: (1) The risk of an intervertebral disc injury from a crash is 1 in 200, while the risk of an individual developing the symptoms at the same point in time if the crash hadn’t occurred is usually less than 1 in 100,000. (2) The chance that a person who smokes will get lung cancer is 20% compared to 1% for non-smokers.

A common defense tactic in civil justice cases is to propose alternative explanations for the injuries/conditions besides the targeted accident or exposure. The defendant’s hope is that a jury will attribute the damage to something other than the accident or exposure. The epidemiologist can be an important expert to counter the shifting-blame defense.
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Companies and individuals in possession or control of real property have a nondelegable duty to keep that property in a reasonably safe condition. Liability for personal injuries caused by a breach of the duty cannot be avoided by hiring an independent contractor to maintain the property in a reasonably safe condition.

A recent example was reported in the Florida appellate case Armiger v. Associated Outdoor Clubs Inc. (Fla. App., 2010). Mr. Armiger sued Associated and Clean Sweep Supply Company after he slipped and fell in a puddle of water in the grandstand of a greyhound track operated by Associated. Although Associated had contracted with Clean Sweep to clean and maintain the areas of the facility — including the grandstand — that were open to the public during racing performances, Associated was held to answer for Clean Sweep’s alleged acts of negligence.

The duty to maintain adequate security also is nondelegable.
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fred thompson.jpgFrom time to time, I will post to my blog site the writings of other individuals on legal topics of interest to me. For those familiar with my own blogs, it is clear that I strongly oppose efforts to limit the authority of juries to render just verdicts. Particularly insidious, in my view, are laws that limit damage caps.

For the most part, it is Republicans who are leading the charge on behalf of big business to curtail the rights of individuals to seek redress within the framework of the civil justice system. Profits over People. That Republicans would be leading the charge has always struck me as running counter to their oft-stated message of personal accountability, responsibility, and consequences for bad acts. “Tort Reform,” as big business propogandists like to call it – or, as I prefer to call it, “Tort Deform” – seeks to protect corporations from consequences, accountability, and responsibility.

Sadly, you never hear Republicans, much less prominent Republicans, speaking out against “Tort Reform.” Until now.

Fred Dalton Thompson (born August 19, 1942), is an American politician, actor, attorney, lobbyist, columnist, and radio host. He served as a Republican U.S. Senator from Tennessee from 1994 through 2003, and ran for the 2008 Republican presidential nomination. He opposes “Tort Reform.”

The following piece, written by Mr. Thompson, was recently brought to my attention. I found that it contained thoughtful and compelling arguments against “Tort Reform.” Kudos to Mr. Thompson. Here’s the opinion piece:

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to “tort reform.”

Republicans and conservatives are supposed to be for anything called tort reform. However, I’ve never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants — regardless of the facts and circumstances of the case. I don’t agree with this approach, and I don’t think it’s “conservative.”

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It’s about government closest to the people and equal justice with no special rules for anybody. It’s also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.
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Florida no longer recognizes the principle of joint and several liability with regard to satisfying final judgments rendered in personal injury cases. Under the concept of joint and several liability, one liable defendant could be forced to pay for the fault of other defendants. One of the theories behind the concept is that the damages would not have occurred but for that party’s fault, so make each party whose fault formed part of the chain leading to the total damages, liable for the fault of all.

Where one or more of the at-fault defendants did not have the financial means to pay its share of the damages, a defendant could be stuck with paying a disproportionate share of the judgment relative to its degree of fault. This procedure worked to the benefit of plaintiffs, who could turn to any defendant to satisfy the whole judgment. Consider this example: The drivers of a Coca-Cola truck and an uninsured vehicle are found equally at-fault for causing a horrible highway accident resulting in the death of a minor child in a third vehicle. At trial the jury awards damages totaling $5,000,000 and a final judgment is entered in this amount. Under joint and several liability, the Coca-Cola company can be forced to satisfy the entire judgment, although the jury has decided that its driver was only 50% at-fault. With the elimination of joint and several liability by the Florida Legislature, plaintiffs can no longer rely on any defendant to satisfy the entire judgment. Under current law, in my example, Coca-Cola would have to pay $2,500,000 instead of the full $5,000,000 final judgment.

What about when a violent crime is committed and a negligent security case is brought against the property owner and/or party in possession of the property for failing to prevent the crime? As between the property owner/possessor and the perpetrator of the crime, does the property owner get a discount on its liability to the extent of the perpetrator’s role in the event? Thankfully, the answer is a resounding No.

Fabre v. Marin, 623 So.2d 1182 (Fla.1993) is the Florida Supreme Court case that requires the allocation of fault among all negligent parties, including the plaintiff. The jury makes the determination and provides its answer on what is called the Jury Verdict Form. The verdict form will contain the name of everyone accused of being at-fault, even those not a party to the lawsuit, and the jury will determine the percentage of fault of each. Each defendant pays no more than its percentage of fault, regardless of whether or not any other at-fault defendant has the financial means to satisfy its share of the final judgment. No longer can the plaintiff look to one defendant to satisfy more than its share of a judgment.
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One of the principal reasons for business being conducted through a corporation, is for the officers, directors, managers, and shareholders of the corporation to be shielded from personal liability for the company’s failures and mistakes. Absent fraud or comingling, the so-called corporate shield is supposed to protect them from personal liability. This holds true for most business deals gone sour and accidents caused by corporate negligence such as by defective products.

To the surprise of many, the Fair Labor Standards Act (FLSA) has a vehicle for piercing the corporate shield.

Congress enacted the FLSA in 1938 to create and maintain minimum standards of living for workers in industries engaged in interstate commerce. Section 202. Congress attempted to secure this goal, in part, by enacting a prohibition which generally mandated that individuals who work more than 40 hours in a week receive an overtime premium. In essence, the Act provides for the payment of overtime wages calculated at X-1/2 for all hours worked over 40 in a week.

Some employers try to skirt the law through creating a variety of false arrangements, however, the majority of those in violation only do so through innocent ignorance or misunderstanding. In piercing the corporate veil, the FLSA does not draw a distinction between intentional acts and innocent mistakes.
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Many factors go into determining the settlement value of a Florida workers’ compensation case. Although the opposing parties are seeking different outcomes – the Claimant wants to recover as much as possible, while the Employer/Carrier wishes to settle for as little as possible – each side benefits from performing a fair and honest evaluation; neither party gains an advantage from being deluded about a case’s true value.

This is not to say that the parties, after performing their assessments, will always arrive at similar conclusions. Law is more art than science. Judgment calls based on a countless number of variables often result in significantly different conclusions. The goal of successful negotiating is to narrow the differences to an acceptable agreement.

Before considering the factors that influence case value, it should be noted that no party to a workers’ compensation case can be forced to settle. Not even a judge of workers’ compensation claims can force a settlement on the parties. Moreover, there is no jury system in workers’ compensation where a verdict is reached awarding a lump sum of money. Most workers’ compensation cases are mediated, but the settlement can only come through an agreement of the parties.

It should also be noted that compensation for non-economic damages (sometimes referred to as, Pain & Suffering) is not awardable in workers’ compensation cases. (See these blogs: personal injury; wrongful death.)
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I have blogged previously on various topics pertaining to premises liability law (open & obvious doctrine; slip & fall; dog bites; and natural conditions. One topic about which I have not written is negligent security.

Negligent security cases involve harm to residents, guests, patrons and the like through the conduct of a bad actor such as a rapist or a mugger.

One of my previous blogs addresses the general principles of Florida law regarding landowner liability for accidents or events that occur on their property. For the most part, every commercial property owner owes some duty of care to those who enter their property, with the level of care being defined by a particular individual’s status on the property (e.g., invitee, invited licensee, uninvited licensee, trespasser). These general principles apply to negligent security cases.

Sadly, rapes and assaults at commercial locations like malls and apartment complexes are events all too common in Florida. Of course, some of these crimes cannot be prevented. However, many could be deterred through reasonable security measures such as improved lighting, beefed up security, video cameras, and eliminating secluded areas.
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I am a member of the Florida Justice Association (FJA), a Tallahassee-based organization dedicated to strengthening and upholding Florida’s civil justice system and protecting the rights of Florida’s citizens and consumers. Within the organization is an Internet discussion group, of which I have been a member for more than ten years, consisting of a sub-group of lawyers who only represent Plaintiffs/Claimants. In other words, no defense attorneys are allowed access to this discussion group. The group discusses legal issues concerning the rights of individuals within the context of the civil justice system. It is an invaluable resource.

Many of my blogs discuss the dangers facing Florida’s civil justice system. Among the specific topics discussed regarding the larger issue deal with what is referred to in Florida as the crashworthiness or enhanced injury doctrine. (Blogs 1, 2, and 3.) I have warned that this important consumer safety law was in danger of being eliminated by Rick Scott and Florida’s Republican-controlled legislature. Well, in just day two of the Rick Scott administration, the doctrine is under assault and, given the Republican numbers, likely to be killed.

Given the importance of the doctrine to the safety and well-being of people in Florida, this assault on the doctrine is a hot topic of discussion on the FJA’s Internet discussion board. I found one post particularly enlightening and have decided to post it here (slightly edited). The author is Florida Attorney Rich Newsome.

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This coming Tuesday afternoon, the Florida Senate Judiciary Committee, chaired by Senator Anitere Flores, will take up an anti-consumer bill involving automobile safety. This bill is being spearheaded by Ford Motor Company and if passed, will have huge consequences for consumers who are maimed and killed by defective cars. (Blogger’s note: In 2009, Ms. Flores introduced and shepherded workers’ compensation legislation that has resulted in the drastic curtailment of the ability of injured workers to obtain benefits. The legislation is in the process of being appealed as unconstitutional to the Florida Supreme Court.)
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Florida police departments are not immune from employing a few bad apples. Occasionally, we learn of a law enforcement officer taking advantage of a vulnerable woman while in uniform during working hours. When such a vile event occurs, the legal question arises as to whether or not the offending officer’s agency must bear civil (as opposed to criminal) responsibility for the officer’s actions. The obvious reaction would seem to be, Yes, of course!!! Unfortunately, the reality is not so simple.

Florida employers may be held liable for the intentional actions of their employees under two legal principles: (1) Negligent hiring. Where the employer knew or should have known prior to hiring that the potential employee was of unfit character, but hired anyway; and (2) Negligent retention. When the employer knew or should have known after hire of an employee’s unfit character, but fails to terminate or modify the employment responsibilities.

However, merely establishing one or both of these principles is not enough. The victim must also show that (1) the unfit character of which the employer knew or should have known had some reasonable relationship to the bad acts committed; and (2) the bad acts were initiated in the course and scope of employment and to serve the interests of the employer.

One of the leading cases in Florida regarding this topic is Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. App. 1 Dist., 1991). Tallahassee Furniture’s employee was hired to deliver furniture to customers’ homes. More than one month after making a delivery, he returned to a female customer’s home and raped her. The young victim sued the employer, Tallahassee Furniture, for negligent hiring and retention.
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worker.jpgThe question often arises in Florida as to whether undocumented workers can be compensated for lost wages (past and future) in personal injury and workers’ compensation cases. With few exceptions, the answer appears to be No.

Although the damages available in workers’ compensation and personal injury cases may differ, both offer elements of awards for lost wages. Proving entitlement requires showing that the lost wages are related to the injuries. However, the employer (wc) and defendant (pi) may nullify the proof by establishing that the claimant is prohibited from working in the United States due to immigration issues. In other words, an immigrant who is not authorized to work in the United States, cannot be compensated under Florida law for lost income resulting from an accident.

The two primary exceptions in workers’ compensation cases are (1) the employee is totally, as opposed to partially, unable to work because of his injuries, and (2) the employer knew or should have known of the employee’s status as an unauthorized alien prior to the disabling accident. (The law of Florida does not impose on an employer the burden of verifying forged or borrowed green cards – Florida Statute 448.09 – nor is there any such federal requirement.)
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