Articles Posted in Personal Injury

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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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Anyone who lives in South Florida knows that the population of road bikers has exploded in recent years. With Lance Armstrong’s exploits and the availability of relatively inexpensive high performance bicycles, it is not uncommon, especially on weekend mornings, to see a countless number of road bikers of all shapes and sizes challenging themselves in their spandex shorts and colorful helmets on the streets and highways.

Even without having to contend with cars and trucks, road biking is a dangerous activity. Potholes, debris, and other bicycles can send a rider to the unforgiving cement in the blink of an eye. Eyes on the road and hands on the handlebars is Rule #1.

South Florida has experienced a rash of highly publicized serious and sometimes fatal motor vehicle vs. bicycle accidents in recent years. With the volume of traffic, motor vehicles and bicycles, on the roadways, one can safely assume that the frequency of such accidents far exceeds the publicized accounts.

This blog will address the points of Florida law dealing with the rights and obligations of road bikers on our roads.

The primary Florida Statute dealing with these issues is 316.2065. Section 316.2065 addresses everything from helmet requirements to carrying children, much of which is beyond the scope of this blog, making it important reading for all bike enthusiasts.

Section (1) of 316.2065 contains the sweeping pronouncement that bicyclists and motor vehicle operators have the same rights and duties. One might conclude this means that bicycle riders can take up entire lanes of traffic without regard to the conditions. This conclusion would be far from correct.

Further in Section (1) is language that qualifies the broad pronouncement, while Section (5)(a) provides the simple details of the limitations. (5)(a) instructs that bicycle riders who are unable to to travel at the normal speed under the conditions at the time “shall” ride as close as practicable to the right-hand curb or edge of the roadway. As the typical lone rider travels at an average of 14-18 mph, and a pack (or pelaton) of strong riders around 5 mph faster than that, most road bikers will always be traveling slower than the speed limit. This means that most of the time, most riders should be riding at the edge of the roadway.

There are exceptions to this rule, also contained within Section (5)(a). Under the following circumstances, riders may leave the right-hand curb of the roadway:

  • When overtaking another bicycle or vehicle proceeding in the same direction
  • when preparing to make a left turn (see, also, 316.151(c))
  • To avoid any condition, such as parked cars, debris in the roadway, and a pedestrian.

Also included as an exception within section (5)(a) is one relating to roads of “substandard-width,” meaning roads not wide enough to safely accomodate a bicycle and a vehicle traveling side by side. For bikers, motorists, law enforcement officers, and the courts, this provision may be the most controversial within Florida Statute 316.2065.

What is a road of “substandard-width?” Arguably, the answer is any road that is less than 14 feet wide.

The Florida Department of Transportation’s Manual of Uniform Minimum Standards recommends an outside lane width of 14 feet as the “minimum width that will allow passenger cars to safely pass bicyclists within a single lane,” i.e., without the need for passing motorists to use part of the next lane. A typical passenger vehicle is from 5.5 feet (car) to 7 feet (SUV) wide. This means that you need at least 8 feet of lane width for a car. (That’s the narrowest parking lane width allowed).

Florida Statute 316.083 states that motorists must pass bicycles at least 3 feet away. Add another 3 feet for the width of a bicycle and its rider, and 14 feet (8 + 3 + 3) is the narrowist width a road should be for bicyclists and automobiles to safely travel side by side. (This minimum does not account for commercial vehicles and utility trailers which are 8.5 ft wide and can have mirrors extending to 10 feet. Those vehicles MUST use part of another lane to pass safely.)
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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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In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), Hertz Corporation, vicariously liable for the negligence of the driver of its vehicle, sought to limit its financial burden by bringing a treating doctor into the case who, it claimed, made the crash victim’s injuries worse through medical malpractice. The Florida Supreme Court said No.

The significance of the case is that initial tortfeasors are fully responsible for all reasonably foreseeable damages resulting from the original accident. Medical malpractice is considered a foreseeable outcome of receiving medical treatment for injuries suffered in the original accident.

Even with Florida’s adoption of comparative fault law (Section 769.81 Florida Statutes), Stuart v. Hertz remains good law. See Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520 (Fla. 5th DCA 1999).
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Most Florida motor vehicle insurance policies extend coverage to its insureds for accidents involving temporary substitute automobiles. The typical requirements of the insurance policy provision are that the vehicle is used as a substitute for the owned auto when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction AND with the permission of the owner. A substitute vehicle can include a rental car.

In Geico Insurance Company v. Shazier, So.3d , 35 FLW D539 (Fla. 1st DCA 3-10-2010), the permission element of the insurance provision was put to the test. The insured lost.

Kutusha Shazier and her husband were insureds under a motor vehicle policy with GEICO. Due to mechanical problems with her Ford Expedition, Kutasha rented a vehicle from Avis Rent-A-Car System. The rental agreement provided that only Kutasha Shazier was allowed to operate the vehicle and if the provision was violated, the rental agreement was automatically terminated.

Without permission from Avis, Shazier allowed another person to operate the vehicle. That person caused a serious accident resulting in injuries to numerous passengers and one fatality.
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Florida Statute 767.04 imposes strict liability on dog owners for injuries suffered in public places and in or on private property when the victim is lawfully there. The former viciousness, in other words, the dog’s history, is irrelevant, hence the strict liability aspect of the statute.

However, the victim’s own negligence (e.g, taunting the dog) can be considered to reduce or avoid a dog owner’s liability.

Additionally, except as to children under the age of 6, “or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words ‘”Bad Dog,”‘ the owner can avoid liability.
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Personal injury claims of individuals under the age of 18 present unique procedural demands for the legal practioner. For starters, the attorney represents the minor through the minor’s legal guardian, typically one parent or both. This is because minors cannot pursue claims through the court system or settle them, pre- or post-suit, on their own.

Whether or not any other procedural requirements must be met depends on the gross amount of the settlement. The chart below sets forth the standards for these other requirements.

POTENTIAL ADDITIONAL REQUIREMENTS:

Court Approval of Settlement Required:

  • Gross Settlement is $15,000 or less – No, unless a lawsuit has been filed, then yes. Sections 744.301(2) & 744.387(3)(a) Florida Statutes.

    Court approval is obtained by filing a Petition for Approval of Minor’s Settlement with the Court. The Petition should contain details of the case, including the issues of liability and damages, the amount of the settlement, and the amount of attorneys’ fees and costs. In many instances, the Court will approve the settlement without a hearing.

  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes. Section 744.387(3)(a).
  • Gross Settlement in excess of $50,000 – Yes. Section 744.387.

Need Legal Guardianship/Guardian of the Property Appointed:

  • Gross Settlement is $15,000 or less – No.
  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes, but only if the Net settlement (after gross settlement is reduced by attorney’s fees and costs) exceeds $15,000. Section 744.387(2).
  • Gross Settlement in excess of $50,000 – Yes, but only if the Net settlement exceeds $15,000. Section 744.387(2).

It is not unusual for the legal guardian and the guardian of the property to be the same individual or individuals. This person will be charged with collecting the amount of the minor’s net judgment and executing all necessary releases. However, the court will retain sole jurisdiction to determine the allocation and use of the minor’s net settlement, oftentimes insisting that it be put into a conservative account for safekeeping until the minor reaches majority. Until majority, whenever the legal guardian wishes to use the minor’s money, court approval must be obtained. The Court’s determination will be based on what is in the minor’s best interest.
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Every first year Florida law student is taught the concept of the Plaintiff with the “Eggshell Skull”.

The proposition is that the Defendant [in an accident case] is responsible for the full extent of the injuries sustained by such Plaintiff even if the degree of damage suffered is more than would be suffered by the average person. In other words, if the Plaintiff was predisposed to suffer an injury or if the injury suffered is worse than it would have been for the average person, the Defendant must compensate the Plaintiff to the full extent of the injuries.

In the example of the Plaintiff with the eggshell, or especially thin/fragile skull, the Defendant, whose negligence caused this Plaintiff to bump his/her head and sustain a fractured skull, is responsible for the fracture even if the worst that would have happened to the average person was a small bump on the head. Put another way, a Defendant “takes the plaintiff as he finds him,” including any pre-existing weaknesses or susceptibility to injury including a weakness caused by a previous injury or pre-existing condition.
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Whether or not a Florida landowner is liable to a member of the public for injuries resulting from an accident on his or her property depends in large part on the status of the visitor at the time of the accident. The status will determine the landowner’s duty of care to the visitor.

The following outline lists the status categories recognized under Florida law and the duty owed to visitors under each category:

  • 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.

(Much of the information contained in this outline was gathered from a table created by Attorney Wilton H. Strickland.)
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