Premises Liability

June 30, 2019

Jeffrey P. Gale, P.A. // Loss of Consortium — Think Twice (or more) Before Making This Claim

Florida case has long allowed the spouse of an injured married partner to bring a cause of action for loss of consortium, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium. Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955). Such damages range from the loss of household services (such as cooking and cleaning) to adversely affected sexual relations. It is precisely because of the spouse’s right to loss of consortium damages that both spouses are typically required to sign settlement releases.

While the consortium claim is a separate cause of action, as a derivative claim it must be brought in the same lawsuit as the underlying injury claim. As so eloquently stated by ace Florida trial lawyer Dale Swope, there are consequential reasons for not rushing headlong into bringing a claim for loss of consortium: “[T]hey can do more harm than good. They open the door to broader discovery, lead to internal disagreement, create the potential risk of execution on jointly held assets, and look to the jury like a lawyer-created claim that is just excessive. They also do not increase the coverage available (except in sovereign cases) and can also cause trouble with Medicaid if the allocation of a global recovery is made unilaterally.” See May/June 2019 Florida Justice Association Journal. Hence, unless the spouse has demonstrable damages, it may be best to let is rest. (All too often, spouses overestimate the value of consortium claims or their lawyers fail to give adequate consideration to the negatives.)

April 20, 2019

Jeffrey P. Gale, P.A. // Florida Premises Liability Law and Cell Phone Distraction

by Jeffrey P. Gale, P.A.

Cell phone related distraction accounts for a great number of motor vehicle crashes. Legislation aimed at curbing these preventable events has been enacted in parts of Europe, Canada, and the United States. Florida remains one of just a handful of states without meaningful legislation designed to curb mobile phone abuse while operating a motor vehicle.

With less fanfare, cell phone distraction has become a leading cause of premises liability accidents. The chances of tripping or slipping and falling on a dangerous condition, such as an uneven surface or foreign substance, is increased by inattention.

Florida law apportions damages in most personal injury cases on the basis of each party’s percentage of fault. This includes the injured victim. The concept, contained in section 768.81, Florida Statutes, is known as comparative fault. For example, in most rear-end car crash cases where the lead vehicle is rightfully stopped due to traffic or a road signal, the trailing vehicle is found to be 100% at-fault. However, if it can be established that the lead vehicle stopped suddenly or unexpectedly or that the tail lights of the vehicle did not work, a percentage of fault may be apportioned against the owner or operator of that vehicle. If a jury decides that the owner or operator sustained $100,000 in damages but was 50% at-fault, the judgment in the o/o’s favor would be cut in half to $50,000.

April 9, 2019

Jeffrey P. Gale, P.A. // Recent First DCA Ruling in a Workers’ Compensation Case May Open Floodgates for More Personal Injury Cases

by Jeffrey P. Gale, P.A.

Many experts believe that the First District Court of Appeal’s April 5, 2019 ruling in Sedgwick CMS v. Tamatha Valcourt-Williams will open the floodgates for more civil negligence lawsuits brought by employees against employers.

Because of the immunity provisions of section 440.11, Florida Statutes, such lawsuits have always been exceedingly rare in Florida. Under the current version of the statute, the exceptions to this exclusiveness of liability are:

When an employer fails to secure workers’ compensation coverage; or
When an employer commits an intentional tort that causes the injury or death of the employee

A third exception arises when an employer/carrier defends a workers’ compensation claim on the basis that “the injury did not occur in the course and scope of employment, or that there was no employment relationship.” An employer taking this position is estopped from asserting the 440.11 workers’ compensation immunity defense in a civil negligence suit brought against the employer. See, Byerely v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999).

The Sedgwick case appears to have expanded the scope of injuries workers’ compensation employers/carriers can deny as not having occurred in the course and scope of employment. The flip side of this will be an increase in opportunities for personal injury lawyers to pursue civil negligence claims resulting from workplace accidents. It remains to be seen if these projections will hold up over time, but workers’ compensation insurance companies and personal injury lawyers are not expected to waste any time testing the waters.

As workers’ compensation claimants’ attorneys are bracing for an onslaught of denied claims, personal injury lawyers are licking their chops at the prospect of seeing an expanded number of personal injury cases come their way. While a denied claim may still be prosecuted under workers’ compensation, some of those denials will naturally end up as circuit court negligence cases. In those cases, claims of workers’ compensation immunity will be met with Byerley and Sedgwick arguments. Moreover, Sedgwick expands the opportunities to jump right into the personal injury arena rather than wait for the claim to be denied under workers’ compensation. While not waiting has always been an option, Sedgwick makes it easier for the plaintiff to argue successfully that the injury did not occur in the course and scope of the employment.

In Sedgwick, a workers’ compensation adjuster authorized to work from home injured herself during a coffee break when she tripped over her dog. She filed for workers’ compensation benefits and won at the trial level. The employer appealed and was successful in having the trial level decision reversed. The DCA decided that the adjuster was not injured in the course and scope of her employment. It framed the question of compensability as “whether the employment—wherever it is—’“necessarily exposes a claimant to conditions which substantially contribute to the risk of injury,”’ a concept it calls “occupational causation,” Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1068 (Fla. 1st DCA 2011) (citing Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. 1st DCA 1995)), or a risk not existent in the claimant’s “non-employment life.” Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93 (Fla. 1st DCA 1986); accord Glasser v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (“Since industry must carry the burden, there must then be some causal connection between the employment and the injury, or it must have had its origin in some risk incident to or connected with the employment, or have followed from it as a natural consequence.”).

February 3, 2019

Jeffrey P. Gale, P.A. // Obtain Accident Video Before Plaintiff’s Deposition in Florida Premises Liability Cases

by Jeffrey P. Gale, P.A.

In this day and age of surveillance cameras everywhere, it is not uncommon for premises accidents to be captured on video. For various reasons it is critically important for the plaintiff’s attorney to secure a copy of all videos as soon as possible. One of the most important reasons is to enable the victim to recount the accident before giving sworn testimony wholly on memory. Even truthful witnesses can have a shaky grasp of the facts. Time, excitement, injury, uncertainty, nervousness — all can work against an accurate account of a traumatic event.

Once a lawsuit is filed and served, the parties to a premises liability action typically engage in what is known as Discovery. Interrogatories, which are questions answered under oath, and live testimony by deposition are two of the most common discovery vehicles. The mechanism of injury is usually at issue in premises liability cases. How and why did the accident happen?

In Business Telecommunications Services, Inc. v. Elena Madrigal, Case No. 3D18-2106, (Fla. 3rd DCA 2019), the appellant Business Telecommunications Services, Inc. was ordered by the trial court to turn over a surveillance video in advance of the deposition of the plaintiff in a personal injury case. The defendant appealed the court order, relying on cases such as Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). The 3rd DCA decided that such reliance was misplaced, and thus refused to reverse the trial court’s order.

September 17, 2016

Jeffrey P. Gale, P.A. // Florida Premises Liability Law — Tripping on Tree Roots

by Jeffrey P. Gale, P.A.

Everyone has crossed through some sort of landscaped area to get from one public place to another. While few fall and hurt themselves, some are less fortunate. Florida courts have addressed the issue of fault for such accidents. Should the landowner be held accountable? Or is the standard, cross at your own peril?

The answer is, it depends.

One of the leading cases on the subject is Wolf v. Sam’s East, Inc., 132 So.3d 305 (Fla. 4th DCA 2014). While the court ruled for the property owner, its discussion shows how the outcome can go the other way under different circumstances.

“Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005).

June 13, 2015

Jeffrey P. Gale, P.A. // Florida Supreme Court Solidifies Negligent Security Law

by Jeffrey P. Gale, P.A.

With the exception of strict liability cases, the burden is always on the plaintiff in personal injury cases to prove that the “[defendant’s] negligence probably caused the plaintiff’s injury,” with “probably” being the more likely than not/greater weight of the evidence standard. Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984); see, also, Standard Jury Instruction – Civil Cases 401.3.

The standard was recently put to the test in Sanders v. Erp Operating Limited Partnership, 157 So.3d 273 (Fla. 2015).

May 6, 2015

Jeffrey P. Gale, P.A. // Florida Premises Liability Law: Broken Sidewalk Trip & Fall Accidents

by Jeffrey P. Gale, P.A.

Our last blog discussed the liability of landowners for accidents caused by tree roots. Today’s blog addresses the liability of landowners for accidents caused by broken sidewalks.

Every premises liability case analysis involving invitees begins here:

“Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005).

May 2, 2015

Jeffrey P. Gale, P.A. // Florida Premises Liability Law: Tree Root Trip & Fall Accidents

by Jeffrey P. Gale, P.A.

We are about to file suit in a case where our client fell after catching the heel of her shoe on a tree root as she was traversing a raised, curbed planting bed that was six to eight feet wide, on the way back to her parked car from an employer-sponsored holiday party. (The photo at right shows the accident scene.) The accident happened at night under dim lighting conditions. Our client sustained a trimalleolar fracture.

We blame the commercial property owner for causing the accident by failing to maintain the premises in a reasonably safe condition, and failing to give warning of the concealed dangerous condition. We expect the property owner to counter that it had no duty to make the landscaping area in its parking lot fit for pedestrian traffic, and that the tree root was so obvious so as not to constitute a dangerous condition.
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December 11, 2014

Jeffrey P. Gale, P.A. // Florida Premises Liability Law: What is a Foreseeable Crime?

by Jeffrey P. Gale, P.A.

The foreseeability of a harmful event is an essential element of every personal injury case. McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992). This includes premises liability cases involving crimes such as rape, assault, and robbery committed by third parties.

Florida courts consider three primary factors in deciding if prior crimes by other criminals make the eventual crime foreseeable:

Similarity of the prior crimes
Geographical proximity of the prior crimes
Temporal proximity of the prior crimes

November 7, 2014

Jeffrey P. Gale, P.A. // Florida Personal Injury Law — No Substitute for Solid Pretrial Discovery

by Jeffrey P. Gale, P.A.

The Florida Rules of Civil Procedure outline the various ways in which parties to a lawsuit can discover information before trial. The most popular discovery vehicles are depositions, interrogatories, and requests for admissions. While these vehicles often help parties prove their case, they can serve another important function of impeaching inconsistent testimony.

Actual Example
We are three weeks before the start of trial in a premises liability case against a condominium association and a general contractor. Our client, a 78 year old woman, sustained serious injuries, including a broken humerus, when she fell into a hole at night in a wood deck under repair. The deck ran behind a line of townhomes. Our client was a guest at a party at one of the townhomes when she decided to take a stroll on the deck. The portion of the deck where she started out and for some fifty feet to the west had been repaired months before. The accident happened where the finished deck met the deck under repair. The hole into which she fell was created by the general contractor who had removed the old boards with the intent of replacing them.
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