Articles Posted in Personal Injury

Winning may not be a victim’s only concern in a personal injury case. Collecting on damages awarded post-victory can be of equal or greater importance.

Not every tortfeasor (at-fault party) is adequately insured or has the independent financial means to satisfy a court judgment. In some instances a non-negligent party, one, perhaps, with the resources to satisfy a judgment, is held legally accountable for the damages caused by another party. This is called vicarious liability. The most common example of vicarious liability involves the owner of a motor vehicle being responsible for the negligence of a permissive user of the vehicle. It is worth repeating that a vicariously liable party need not be negligent.

Florida employers can be liable for the conduct of their employees in two different ways. One is vicarious liability. The other requires active negligence on the part of the employer.

An employer can be vicariously liable for the act of an employee committed (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer. Valeo v. East Coast Furniture Co., So.3d , 37 FLW D1820 (Fla. 4th DCA 8-1-2012). In Valeo, following a motor vehicle accident the plaintiff exited his truck and approached the driver’s side window of the defendant’s truck, whereupon the defendant’s employee hit him in the eye with a padlock. The defendant’s driver testified that he hit the plaintiff with a padlock because he thought the plaintiff was trying to rob him of cash he was carrying for the employer. The plaintiff denied being the aggressor. The trial court decided that the employer could not be vicariously liable under these circumstances. The appellate court disagreed, holding that the question was one to be decided by a jury.
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Adults hosting house parties are well advised to be hyper vigilant in preventing alcohol or drugs from falling into the hands of minors. The negative consequences of failure, outlined in Florida Statute §856.015, can be substantial.

An adult who fails to keep a minor from possessing or consuming alcohol or drugs commits a second degree misdemeanor, punishable by a fine up to $500 and 60 days in prison. Where harm comes to a minor or others due to a violation of 856.015, the offense is a first degree misdemeanor, punishable by a fine up to $1000 and one year in jail.
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Purchasers of used goods, such as appliances and cars, often buy from dealers subject to the condition that the items are being sold “As Is.” Does this provision in a sale agreement insulate the seller from liability for personal injuries caused by a defect? Probably not.

Sellers use “As Is” disclaimers with the intention and expectation of disclaiming all warranties, both express and implied. To be valid, the disclaimers must meet certain requirements such as being written and conspicuousness within the written document.

An “As Is” disclaimer is not an exculpatory clause. An exculpatory clause relieves a party of tort liability. Because exculpatory clauses relieve parties of exercising due care, they are looked upon with disfavor in most states, including Florida. To be enforceable, an exculpatory clause must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away.”

In Stuart v. Hertz Corporation, 351 So.2d 703 (Fla. 1977), the Florida Supreme Court decided that the Hertz Corporation, whose vehicle injured a woman in an accident, was liable for the injuries she sustained from medical negligence while receiving care for her original injuries, and that Hertz could not bring the doctor into the case to make him pay for the damage he caused.

The woman sued Hertz. Hertz, in turn, filed a third party complaint against the doctor, Stuart, seeking indemnification, i.e., that the doctor pay for the damage he caused. The woman’s motion to dismiss the third party complaint was denied, and the trial court’s order was affirmed on appeal in the Fourth District Court of Appeal. The Florida Supreme Court reversed.

The issue was framed by the Supreme Court as follows: Therefore, the issue before us is simply whether or not an active tortfeasor in an automobile accident may bring a third party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiff’s injuries.

Although some lawyers think that the Hertz case set the standard in Florida for defendants being responsible for subsequent injuries, the rule was actually first stated in 1932, in J. Ray Arnold Corporation, etc. v. Richardson, 105 Fla. 204 (1932). That court held:

“Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor. Texas & Pacific Ry. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918.” At 135.

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