by

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.
Continue reading

by

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.
Continue reading

by

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).
Continue reading

by

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.
Continue reading

by

Florida’s Wrongful Death Act, located at Sections 768.16-768.26 of the Florida Statutes, concentrates on loss suffered by survivors and creates a separate entitlement to damages for each survivor. However, the survivors cannot bring separate legal actions. Rather, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See § 768.20, Fla. Stat. Under the legal procedure set out in the wrongful death statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form.” Wiggins v. Estate of April Brown Wright, 850 So.2d 444 (Fla., 2003).

The personal representative selects the attorney who will pursue the recovery on behalf of the estate and the survivors. The typical contingent fee retainer agreement in these cases provides for attorneys’ fees from 33-1/3% (case settled pre-suit) to 40% (post-suit, post-Answer [to lawsuit]) of the combined amount recoved by the estate and the survivors.

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the same attorney.
Continue reading

by

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.
Continue reading

by

In Patricia Farley v. Chase Bank, U.S.A, N.A., No. 4D09-651 (opinion published on June 9, 2010) (not final until disposition of timely filed motion for rehearing), the District Court of Appeal of the State of Florida, Fourth District, sent a cautionary message to those who fail to object within a reasonable period of time to incorrect account statements.

In every civil legal case, the initial burden of proof is upon the Plaintiff to present a prima facie case. In a lawsuit brought to collect a debt, this means that the Plaintiff/Creditor must come forward initially with probative evidence of the correct amount of the debt and the liability of the debtor. Without doing so, the Plaintiff/Creditor’s case will fail.

In the Farley case, before the lawsuit was filed Chase Bank had rendered an account statement to Ms. Farley. When Ms. Farley failed to pay or challenge the correctness of the statement, she was sued by the bank.

At the trial court level, Chase Bank came forward with evidence that Ms. Farley had received the account statement and failed to challenge its correctness. Ms. Farley insisted that Chase Bank must prove its case by providing an itemized copy of the account sued upon. The trial court disagreed with Ms. Farley, concluding instead that the bank had made a prima facie case by presenting evidence that Ms. Farley had failed to challenge the correctness of the pre-suit account statement. Ms. Farley’s appeal of the trial court’s decision was rejected by the 4th DCA.
Continue reading

by

Florida employees injured at work may be entitled to retraining benefits. The procedure is outlined in Section 440.491 of the Florida Statutes.

Upon referral of an injured employee by the carrier (defined in section (1)(a) of 440.491), or upon the request of an injured employee, the Florida Department of Education (department) shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaulation and, if appropriate, approve training and education or other vocational services for the employee. The department will not approve training and education unless it determines that the reemployment plan is likely to result in a return to suitable gainful employment.

If the department approves training and education, the money to pay for the services will come from the Workers’ Compensation Administration Trust Fund, established by s. 440.50. The training and education can be provided through community colleges, approved career centers, and other vocational services. Under some circumstances, the department will pay for a temporary residence at or near the facility where the services are being provided.
Continue reading

by

Permanent Total Disability (PTD) is the only periodic (bi-weekly) monetary payment available to injured workers after maximum medical improvement (MMI) is reached. The standard for qualifying for PTD benefits has changed numerous times over the years.

When I began handling workers’ compensation cases, in 1987, to qualify for PTD benefits an injured worker had to have a listed injury such as total blindness, amputation of an arm, or a severe brain or closed head injury, or establish that he or she was unable to perform light duty work uninterruptedly. (Light duty is commonly recognized as: (1) no lifting > 20 lbs.; (2) frequent (1/3 to 2/3 of the time) lifting or carrying objects up to 10 lbs.; (3) standing 6 out of 8 hours per day; and (4) stand and use arms and hands.)

This standard applied until 1994, when the Florida Legislature, in a Special Session convened by Governor Lawton Chiles, replaced the light duty standard with a formula tied into the Social Security Disability (SSD) standard. The Legislature believed that this formula would make it more difficult for injured workers to qualify for workers’ compensation PTD benefits. In practice, however, just as many if not more injured workers qualified for PTD under this standard.

This did not sit well with Governor Jeb Bush and his corporate constituents, so in 2002, the Republican-controlled Florida Legislature changed the standard again. The SSD formula was replaced with the requirement that injured workers must show they are unable to engage in at least part-time sedentary employment within a 50-mile radius of the employee’s residence. (Sedentary duty is commonly recognized as: (1) no lifting > 10 lbs. at a time; (2) occasional (1/3 of time) lifting or carrying small articles like docket files, ledgers and small tools; (3) sit 6 hours during 8 hour day and stand and/or walk the remaining 2 hours; and (4) good manual dexterity in both hands.) When coupled with the Legislature’s companion 2002 changes curtailing the amount of attorneys’ fees an injured workers lawyer was allowed to receive, the change dramatically reduced the number of individuals who qualified for PTD benefits.

The standard proved so onerous, that the law was revisited a few years later. The outcome of the Legislature’s decision to reconsider resulted in our current law, which provides as follows: “[I]n order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” Section 440.15 Florida Statutes (2009).
Continue reading

by

Individuals and companies sued in Florida on debts (real & fabricated) and delinquent mortgages are not without legal defenses or affirmative relief. Here is a checklist of some of the available legal principles:

  • Estoppel – Equitable, Promissory and Collateral.
  • The action is barred by the statute of limitations applicable to such actions.
Continue reading
Contact Information
Main Office
9999 NE 2nd Ave, #304
Miami Shores, FL 33138
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com
Palm Beach Gardens
2401 PGA Blvd #140
Palm Beach Gardens, FL 33410
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, Jeffrey P. Gale, P.A.
JUSTIA Law Firm Blog Design