personal injuries

February 23, 2024

Jeffrey P. Gale, P.A. // Liability (or not) for Open & Obvious Dangerous Conditions

Owners and occupiers of premises have a duty to warn invitees (e.g., shoppers in mall, residents of condominium) of latent or concealed perils of which they know or should know. Krol v. City of Orlando, 778 So. 2d 492 (Fla. 5th DCA 2001).

Conditions such as uneven floor levels and sidewalk curbs have been found by Florida courts to be open and obvious. E.g., Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952) (concluding that uneven floor levels in public places do not constitute latent, hidden, and dangerous conditions); Gorin v. City of St. Augustine, 595 So. 2d 1062, 1062 (Fla. 5th DCA 1992) (concluding that sidewalk curb used as platform to pick up and drop off passengers riding a tram is not hidden dangerous condition); Aventura Mall Venture v. Olson, 561 So. 2d 319, 320 (Fla. 3d DCA 1990) (finding that six-inch sidewalk curb located at a mall is not “concealed or latent danger”).

The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their senses. See Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990). This doctrine is counterbalanced by the principle that a landowner’s duty to maintain his premises in a reasonably safe condition is not discharged by the dangerous condition being open and obvious. De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013).

December 22, 2023

Jeffrey P. Gale, P.A. // Recovering Uninsured (UM) Motorist Benefits for Injuries Caused by Road Debris

by Jeffrey P. Gale, P.A.

Florida motor vehicle insurance policies offer a variety of coverages. PIP and Property Damage — Liability are mandatory coverages. Others, like bodily injury and uninsured/underinsured motorist (UM/UIM) are not.

An uninsured vehicle is one that does not maintain bodily injury coverage or, like a hit-and-run phantom vehicle, cannot be identified.

Interestingly, UM coverage may be available for injuries caused by road debris from an unknown source. However, the cases hold that the inference the debris came from another vehicle must be inescapable, or at least “outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances.” Voelker v. Combined Insurance Co. of America, 73 So.2d 403, 405 (Fla. 1954), citing King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858 (1936). See also Little v. Publix Supermarkets, Inc., 234 So.2d 132 (Fla. 4th DCA 1970).

In Allstate Insurance Company v. Bandiera, 512 So.2d 1082 (Fla. 4th DCA 1987), the appellate court denied coverage to a passenger injured by a cinder block from an unknown source. It felt that it was just as plausible that the cinder block was thrown at the car by pedestrians standing at the side of the road.

June 1, 2023

Jeffrey P. Gale, P.A. // Fundamentals Always Matter — Proximate Cause

by Jeffrey P. Gale, P.A.

In every negligence action for injuries or wrongful death the plaintiff must establish (1) a duty owed by the defendant; (2) the defendant’s breach of the duty; and (3) and that said breach proximately caused the damages claimed.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

December 29, 2022

Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

by Jeffrey P. Gale, P.A.

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

The employer deliberately intended to injure the employee; or

The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or

The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.