Articles Posted in Litigation

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Workplace forklift accidents are common in Florida and often result in catastrophic injuries or death. Our law firm is currently handling two forklift accident cases, each involving serious injuries.

Employees injured in forklift accidents should be eligible to receive workers’ compensation benefits through the employer or its insurance company. The workers’ compensation benefits will consist of medical benefits and lost wages. Because of Florida Statute 440.11, these are the only benefits that will be available from the employer in most cases. There will be no compensation [from the employer] for pain and suffering, and only a remote chance of being indemnified for the loss of future earning capacity.

To be compensated for these damages, the injured worker must be able to make out a case of negligence against a third party, such as the forklift manufacturer or an outside forklift maintenance company. This is our strategy in one of the two forklift cases, in which the forklift failed to slow when it was being operated in reverse, causing the operator’s foot to be crushed between the forklift and a wall. In our other forklift case, we have eliminated third party liability as the cause.
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In its infinite wisdom (sarcasm intended), the Florida Legislature, in 2003, placed arbitrary caps on the amount of money persons harmed by medical negligence may recover for noneconomic damages. (Noneconomic damages are defined in Florida Statute 766.202(8) as follows: “Noneconomic damages” means nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.) This blog will attempt to summarize the caps, as set forth in Florida Statute 766.118:

IF THE NEGLIGENCE IS COMMITTED BY A “PRACTITIONER” (“Practioners” include MDs, DOs, chiropractors, podiatrists, naturopathists, optometrists, dentists, midwives, physical therapists and nurse practioners as well as their employers (i.e. hospitals, private practice groups). See 766.118(1)(c)):

  • For personal injury: $500,000 per claimant, regardless of the number of practitioner defendants, and no practioner shall be liable for more than $500,000, regardless of the number of claimants.
  • For negligence resulting in a permanent vegetative state or death: $1,000,000 is the total amount recoverable from all practitioners, regardless of the number of claimants.
  • In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1,000,000 total by all claimants from all practitioner defendants.

IF THE NEGLIGENCE IS COMMITTED BY A NONPRACTITIONER:

  • Personal injury: $750,000 per claimant regardless of the number of nonpractitioner defendants.
  • Permanent vegetative state or death: $1.5 million per claimant.
  • In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1.5 million.

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Florida Statute Section 768.21 outlines who is eligible for benefits under Florida’s Wrongful Death Act. (See this blog for an easy-to-understand breakdown.) With one exception, the statute – although debatable as to its fairness – treats all victims alike. The exception? The survivors of those who have died from medical malpractice/negligence.

Sections (3) & (4) of Statute 768.21 determine the eligibility of children and parents of decedents to compensation under the Act. Section (3) provides that “[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury,” while Section (4) declares that “[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors.” (Florida Statute 768.18 defines “minor children” as children under 25 years of age, notwithstanding the age of majority)
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To the surprise of many, most of the doctors who work in Florida’s hospital emergency rooms are not hospital employees. Instead, they are independent contractors. (It is quite rare for Florida hospitals to employ their ER physicians.) Equally surprising is that Florida law does not hold a hospital liable for a doctor’s negligence simply because the hospital grants privileges or credentials to the doctor, unless there was negligence in the credentialing. These matters become important when emergency room malpractice causes serious personal injuries and death.

With the reality of arbitrary statutory damage caps limiting the monetary exposure of medical negligence defendants, it is often necessary [for the victim or the victim’s family] to recover from multiple parties to be justly compensated for serious injuries or death. For such damages resulting from negligent emergency room services, the hospital would seem to be a natural target. Not so.

Today’s hospitals typically take the position that the doctors working in their emergency rooms are independent contractors, individuals for whom they have no legal liability when things go wrong. Strictly speaking, they may be right. Independent contracts are not employees, whose negligence subjects the employer to liability under the principle of respondeat superior (the Latin meaning is ‘let the master answer’).

Thankfully, Florida law does not accept the strict view of this consequential subject.

The main legal principles being used to hold hospitals accountable are:

  • Non-delegable duty
  • Actual agency
  • Apparent agency
  • Negligent credentialing

Non-delegable duty. This theory, which is not limited in its application to medical negligence cases, is most often utilized for activities involving the risk of serious injury or loss. In the context of emergency rooms, the risk is addressed by statutes and rules which set forth strict guidelines for modes of operation. Recent court decisions have relied on these rules and regulations to find that hospitals have a non-delegable duty to provide various non-negligent services in its emergency rooms.

Actual agency. The elements necessary to establish an actual agency relationship are: acknowledgment by the principal that the agent will act for him, the agent’s acceptance of the undertaking, and control by the principal over the actions of the agent.

Apparent agency.The main element of this principle is the impression through words and actions a hospital conveys to the public about its ER. Through advertising and appearance (e.g., uniforms; logos; paperwork; etc.), the general public can reasonably believe that an ER’s physicians are hospital employees. This is usually a fact question requiring a decision by the trier of fact, typically a jury.

Negligent credentialing. Involves granting privileges to an unqualified physician to practice medicine in the hospital. The mechanism for allowing a doctor to ply his trade in a hospital setting is supposed to be more than a rubber-stamp process. Thoughtful consideration based on rigorous standards should be followed.
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There is a distinct lack of unanimity throughout the country regarding the appropriate duty, if any, of a landowner for dangers presented by natural hazards on the landowner’s property. One camp applies the so-called “agrarian rule,” which provides that a landowner owes no duty to persons harmed by natural conditions on the land. The other camp applies the principle that a landowner may owe a duty of care for dangers posed by natural conditions when an invitee uses the property in a reasonable manner. (See this blog for the meaning of the legal term “invitee.”)

(Examples of such natural hazards include: tree roots obscured by leaves; view of sidewalk blocked by foliage; hole in ground covered by tall grass; traffic control device – e.g., stop sign, yield sign – obstructed by tree branches.)

Thankfully, Florida falls into the latter camp.
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Surprisingly, most of the clothing sold and manufactured in the United States today is regulated by a law enacted in 1953, the Flammable Fabrics Act. The law was enacted to remove only the most flammable garments, leaving unregulated countless other dangerous fabrics. As a result, every year thousands of people are injured and nearly two hundred die due to clothing-related burns. The Act provides minimal protection and is sorely outdated. More can and should be done.

An example of what can be done is the Children’s Sleepwear Standards Act, enacted by Congress in the 1970s. The goal of this Act was to protect children up to the age of 12 years from the unreasonable risk of burns caused by burning sleapwear. It has worked. The standards have resulted in a drastic reduction in clothing-related burn injuries and death to children.

Adults should not be mislead by labeling announcing the burn resistance or safety characteristics of their clothing. Language such as “Class one normal flammability” or “does not ignite,” terms commonly used in the industry, do not necessarily mean that a fabric will not ignite under real world conditions. Consider this: ordinary newsprint passes the standard of “Normal flammability.”
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“Umbrella” insurance is a relatively inexpensive way to obtain significant increases in important insurance policy coverage limits.

Consumers are familiar with motor vehicle and homeowners insurance policies. They are separate policies covering separate and distinct risks. Each has its own policy limits and premium charge.

Umbrella insurance is a distinct coverage that is purchased as a stand alone package to supplement other, separate policies, such as the the motor vehicle and homeowners examples mentioned above.

Example: A motor vehicle policy may provide bodily injury coverage of $10,000 or even $100,000. Separately, the homeowners policy (similar renters insurance is also available) may provide the same coverage limit.

Bodily injury coverage pays for personal injuries and death caused by the insured’s negligence. Although $100,000 in coverage is enough in most cases, in some cases it is not nearly enough. Some serious injuries command $1,000,000 and more in damages, while wrongful death damages can reach into the multiple millions. In these cases, the protection afforded by the primary policy is insufficient. This is where umbrella coverage comes into play.
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Disabled commercial vehicles are hazardous to motorists.

Rightfully, much blame for traffic accidents is placed on trailing/approaching vehicle drivers. However, commercials vehicles disabled in lanes of traffic often contribute to serious and fatal accidents through little to no fault of approaching drivers. Surprisingly, many of these accidents occur in broad daylight on straight roadways. (More obvious contributing factors include nightime and foggy conditions, and curves in the road.)

The U.S. Department of Transportation Federal Motor Carrier Safety Administration has created rules and regulations designed to reduce the danger. For commercial vehicles (buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds. U.S. DOT Rule 571.125 S3) stopped upon the traveled portion of the highway for any cause other than a necessary traffic stop, Rule 392.22 requires the following:

  • The driver shall immediately activate the vehicular hazard warning signal flashers and contiune the flashing until the driver places the warning devices required by other parts of 392.22. (Hazard warning signals are [L]amps that flash simultaneously to the front and rear, on both the right and left sides of a commercial motor vehicle, to indicate to an approaching driver the presence of a vehicular hazard.” Rule 393.5. The hazard warning signals “shall operate independently of the ignition or equivalent switch….” Rule 393.19.)
  • The driver shall, as soon as possible, but in any event within 10 minutes, place the following warning devices beside and behind the vehicle in the manner outlined in Rule 392.22(b)(1)(i-iii), (b((2), (b)(2)(iv), and (b)(2)(v): Three bidirectional emergency reflective triangles or at least 6 fusees or 3 liquid-burning flares. See Rule 393.95. (In Section 571.125 S2, the U.S. Department of Transportation advises that the purpose of these standardized warning devices “is to reduce deaths and injuries due to rear end collisions between moving traffic and disabled vehicles.)

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Drowning is the leading cause of death of young children and a significant cause of death of medically frail elderly persons in this state. Constant supervision is the best way to prevent drownings. Cognizant, however, that supervision is not always available, the Florida Legislature has devised a statutory scheme designed to deny, delay, or detect unsupervised entry to swimming pools, spas, and hot tubs. The scheme is set forth in Chapter 515 of the Florida Statutes.

In order to pass final inspection and receive a certificate of completion, a residential swimming pool must meet at least one of the following requirements relating to pool safety features:

  • The pool must be surrounded by a perimeter barrier that (1) is at least 4 feet high; (2) does not not contain any features which would allow children to crawl under, squeeze through, or climb over it; and (3) is set far enough away from the pool’s edge so that a child or elderly person who has penetrated the barrier does not immediately fall into the pool. (The perimeter barrier is required even if the residential yard is surrounded by a fence, wall, or other enclosure unless the fence, wall, or other enclosure or portion thereof is situated on the perimeter of the pool, is being used as part of the barrier, and meets the barrier requirements of the statute.)
  • The pool must be equipped with an approved safety pool cover. An “approved safety pool cover” can be manually- or power-operated and must meet certain delineated standards established by the American Society for Testing and Materials (ASTM).
  • All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet. “Exit alarm” means a device that makes audible, continuous alarm sounds when any door or window which permits access from the residence to any pool area that is without an intervening enclosure – a perimeter barrier (see the first bullet point, above) – is opened or left ajar.
  • All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor.

A person who fails to equip a new residential swimming pool with at least one of the pool safety features outlined above, commits a misdemeanor of the second degree. This has significance in the context of civil cases arising out of pool accident cases, in that violations of statutes can be considered evidence of negligence (see Florida Standard Jury Instruction 401.9). Conversely, being in full compliance with the Residential Swimming Pool Safety Act (Chapter 515), provides some insulation to the property owner against being found at fault.
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On July 7, 2010, I blogged that the initial tortfeasor (a wrong-doer, one who does wrong) in a negligence case is liable under Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), for all foreseeable damages arising from an accident, including enhanced injuries caused by medical malpractice suffered during treatment for the initial injuries. (Blog.) Today’s blog addresses the responsibility of those whose negligence has caused injuries apart from those resulting from the initial negligence.

The seminal case in Florida on this issue is the Florida Supreme Court case D’Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001). In D’Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body.

The minor and his mother sued Ford alleging that a defective relay switch in the automobile caused the fire. It was their theory that but for the defect, the fire would not have started and the minor’s injuries would have been much less serious. In line with this theory, they only sought damages for the injuries caused by the defective switch rather than for the injuries caused by the initial impact with the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) sought to keep this evidence out by arguing that it was irrelevant. In their view, since they were not seeking compensation from Ford for the injuries sustained from the initial impact, how and why it happened was irrelevant. The trial court disagreed, allowing the evidence to be presented to the jury. The jury returned a verdict for Ford.
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