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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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Helpful tips to reduce identify theft:

  • Do not sign the back of your credit cards. Instead, put “PHOTO ID REQUIRED.”
  • When you are writing checks to pay on your credit card accounts, DO NOT put the complete account number on the “For” line. Instead, just put the last four numbers. The credit card company knows the rest of the number, and anyone who might be handling your check as it passes through all the check processing channels won’t have access to it.
  • Put your work phone # on your checks instead of your home phone. If you have a PO Box, use that instead of your home address. If you do not have a PO Box, use your work address. Never have your SS# printed on your checks. You can add it if it is necessary. But if you have It printed, anyone can get it.
  • Place the contents of your wallet on photocopy machine. Do both sides of each license, credit card, etc. You will know what you had in your wallet and all of the account numbers and phone numbers to call and cancel. Keep the photocopy in a safe place.
  • (Also carry a photocopy of your passport when traveling either here or abroad.)

Here is some important information to limit the damage in case your ID or identity are stolen:

  • Cancel your credit cards immediately. The key to this is having the toll free numbers and your card numbers handy so you know whom to call. Keep those where you can find them.
  • File a police report immediately in the jurisdiction where your credit cards, etc., were stolen. This proves to credit providers you were diligent, and this is a first step toward an investigation (if there ever is one).
  • Call the 3 national credit reporting organizations immediately to place a fraud alert on your name and also call the Social Security fraud line number. The alert means any company that checks your credit knows your information was stolen, and they have to contact you by phone to authorize new credit.

Here are the numbers you always need to contact with regard to your missing or stolen wallet:

  • Equifax: 1-800-525-6285 1-800-525-6285
  • Experian (formerly TRW): 1-888-397-3742 1-888-397-3742
  • Trans Union : 1-800-680 7289 1-800-680 7289
  • Social Security Administration (fraud line): (800) 269-0271 & (800) 269-0271

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I voted for President Obama and fully expect to vote for him again in 2012. However, I am disappointed by one of his remarks delivered in the 2011 State of the Union message. In speaking about taking steps to improve the economy, the president mentioned that he is willing to work with the Republicans on medical malpractice reform legislation. I am hoping that his words were only rhetoric, chum if you will, to get a few cheers from the Republicans during the address, rather than an expression of his true intentions.

Among the lawyers who handle medical malpractice cases and know the realities of this practice area beyond the rhetoric, the word “deform” is substituted for the word “reform.” This is because the word “reform” suggests a good thing, while the word “deform” imparts a whole different meaning.

Make no mistake about it, the medical malpractice “reform” favored by Republicans is not a good thing for individuals harmed by serious medical mistakes. Their idea is to make it more difficult, if not completely impractical, for individuals harmed by medical negligence to seek redress through the civil justice system. I consider this a bad thing rather than a good thing, hence the use of the word “deform.”

For many years, powerful forces, in particular, the insurance industry, have pounded into the psyche of American society that our country faces a medical malpractice crisis. However, the truth is far different than the propoganda.
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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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No type of insurance coverage is required to lawfully operate a motorcycle in Florida. The owner of a motorcycle can obtain a license plate and registration without any coverage. This is different than the law with regard to cars and trucks. The owner of either of those types of motor vehicles must, at a mimimum, have Personal Injury Protection (PIP) and Property Damage – Liability insurance to obtain a plate and registration. (PIP is no-fault coverage and can pay the policy holder and a few others up to $10,000 for medical benefits and lost wages, while PD – Liability covers property damage to the other vehicles.)

However, in the event of an accident resulting in death or personal injury, if the uninsured motorcyclist or car/truck owner with only PIP/PD is charged with causing the accident, his/her drivers license and all vehicle registrations will be suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) of the Florida Statutes. Taking it one step further, these consequences will also result to the inadequately insured owner even if he/she was not operating the vehicle, if the accident was caused by a permissive user. This is because Florida considers vehicles used on its roads and highways to be dangerous instruments, subjecting its owners to the same liability for accidents as the permissive operators.
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The Fair Labor Standards Act (FLSA), enacted in 1938, was Congress’s effort to create and maintain minimum standards of living for workers in industries engaged in interstate commerce. 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. However, until 2005, drivers, drivers’ helpers, loaders and mechanics of vehicles weighing 10,000 lbs. or less who performed tasks that affected the safety of vehicles operating in interstate commerce were exempted from the maximum hours provisions of the Act, set forth specifically in 29 U.S.C. Section 207. This changed on August 10, 2005, when the exemption was removed by the enactment on August 10, 2005, of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).

The FLSA is a complicated set of laws laden with numerous exemptions and qualifications. Employers and employees should consult with a legal expert well-versed in handling FLSA cases to address the many aspects of the Act.
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A statute of limitation is a provision that ends a person’s or company’s right to sue with regard to a legal dispute. Every legal dispute in Florida is subject to a statute of limitation, with the time period in any particular matter depending on the nature of the dispute. Florida Statute 95.11 sets forth the statute of limitation periods for most legal disputes. The statute of limitation for workers’ compensation cases is set forth in Florida Statute 440.19.

The workers’ compensation statute of limitation is a provision that ends a person’s right to claim benefits or sue for compensation and damages unless the person meets certain conditions. For accident dates after January 1, 1994, a claim or petition for benefits is forever barred unless it is filed within (1) two years of the date of the injury; or (2) after the initial two years, within one year of the last payment of compensation or provision of remedial treatment, care or attendance.

The start of every statue of limitation period is triggered by an occurence or event. For example, in a breach of contract matter, the triggering event is the breach of the contract. For wrongful death, it is the date the cause of the wrongful death was confirmed or suspected, typically the date of the accident. In workers’ compensation cases, the work-related accident starts the limitation period running.

In cases involving clearly identifiable accidents and injuries, such as breaking an ankle after falling from a ladder, the date of accident as the triggering event is obvious. However, not all triggering events are so obvious. For example, a worker may feel a twinge in his back from lifting a heavy box, and for a time feel only minor discomfort, then one day, even a week or two later, experience full-blown symptoms indicative of a bad herniated disc injury. Under this scenario, the statute of limitation period may not begin to run until the full-blown symptoms manifested, which is when the injured worker, as a reasonable person, should recognize the “nature, seriousness, and probable compensable character of his injury or disease.” [see Herb’s Exxon v. Whatmough, 487 So. 2d 1169, 1172 (Fla. 1st DCA 1986)]. In other words, the triggering event may come after the actual date of accident.

Other examples of how the workers’ compensation statute of limitation is applied:

  • Occupational Disease: An occupational disease is one that arises from the hazard of a disease particular to a job that distinguishes it from the usual run of occupations, or the incidence of the disease is substantially higher in that occupation [see Florida Statute 440.151]. In cases involving occupational disease, the statute of limitation clock begins to run from the date of disability. Disability is defined in Section 440.02(13) as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” This means that the date when the SOL clock begins to run may be different from the date the injured worker was first exposed or when he or she detected the disease, or even when symptoms first appeared.
  • Injuries from Repetitive Trauma: A repetitive trauma injury is one in which disability results from months or even years of minor, but repetitive trauma. (My first workers’ compensation trial involved a repetitive trauma injury. We alleged and, fortunately, were able to prove, that our client’s serious back condition developed from years of lifting heavy bed box mattress frames from ground level to overhead shelves.) In these cases, the SOL begins to run from the date of the disability or the date of last injurious exposure, whichever is later.

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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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