Articles Posted in Premises Liability

A Florida appellate court recently assessed an appeal stemming from an accident and negligent care that caused significant, fatal injuries. In a recent case, the personal representative of the injured person’s estate filed suit against several defendants, alleging the decedent was first injured by a malfunctioning sliding door at a drugstore, which led to her receiving inadequate care at a senior home, ultimately resulting in her death. The decedent suffered significant injuries from the fall at the drug store’s premises that were then aggravated by a second fall at the senior center. The representative initially filed two separate actions against the drugstore and the senior center but eventually moved to consolidate the two actions under Florida Rule of Civil Procedure 1.270(a).

In his motion, the representative alleged the wrongful death claim was based on successive injury-producing incidents, and both the drug store and the center contributed to the woman’s death.Book Stack The representative argued there was a substantial risk of inconsistent verdicts because one defendant could place the blame on the other defendant in each case. The representative asserted this could collectively minimize the defendants’ liability and the jury’s award of damages.

The Second District Court of Appeal looked at previous state decisions to determine whether the trial court erred when it denied the motion to consolidate. The Florida Supreme Court previously determined two separate actions involving two automobile accidents should have been consolidated because the damages could not be readily divided among the defendants in each action. (See Lawrence v. Hethcox, 283 So. 2d 41 (Fla. 1973).) The court ruled that separate actions would have increased the injured person’s challenges in proving how much each defendant was responsible. The court felt a denial of consolidation would obstruct rather than promote justice. Other district court verdicts reflect this reasoning in U-Haul Co. of Northern Florida, Inc. v. White and Hickey v. Pompano K of C Inc. Hickey had similar facts to the case at hand, in which a plaintiff suffered two separate slip-and-falls three weeks apart. The plaintiff in Hickey injured her knee, which was alleged to have contributed to the second fall that then exacerbated the first injury. The Fourth District pointed out that the defendant in each action could place the blame on the other defendant, which would result in a low verdict in one or both trials. Low verdicts are not grounds for a new trial, and the plaintiff would be blocked from an adequate remedy by appeal.

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The Supreme Court recently settled a certified conflict between the Fifth and Second District Courts of Appeal, asking whether a party is required to disclose that their attorney referred them to a particular physician for treatment. The legal analysis hinged on whether or not the attorney-client privilege shielded a party from disclosures otherwise required by the rules of discovery. In a recent case (No. SC15-1086), the Supreme Court determined that in this scenario, there is a confidential communication between the attorney and the client, subject to the constitutional privilege.

Money AwardThe Fifth District’s decision was quashed, and the Second District’s was affirmed. In the Fifth District case, the plaintiff slipped and fell in a parking lot. After seeking treatment in an emergency room, she was referred to a specialist for the pain in her right knee. Due to a lack of money, she did not go, but she sought out representation. After retaining legal counsel, she was seen and treated by different physicians from an orthopedic institute and two surgical centers. The injured woman filed suit against the business that owned the parking lot, seeking damages for the cost of her treatment.

During the discovery phase of the litigation, the defendant business repeatedly tried to ask the injured woman about the relationship between her attorneys and the treating physicians seen after she hired counsel. The same questions were asked during the deposition, but the injured woman’s counsel objected, claiming the attorney-client privilege. Interrogatories were then sent by the business to the treating physicians, requesting information to help establish the existence of a referral relationship. The injured woman responded by asserting the requests were overly broad, vague, and unduly burdensome in violation of the Florida Rules of Civil Procedure.

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When an injured party seeks justice in a Florida personal injury lawsuit, he or she hopes for impartial fact-finders. To ensure a fair trial for all parties, the civil court system uses a formal process called Voir Dire in the selection of jurors. Several members of the community are called to potentially serve on a jury.  From this pool of citizens, the attorneys for the parties narrow the candidates by asking written and oral questions.  Wet FloorThe jurors are required to answer truthfully so that any disqualifications and biases can be figured out.

In a recent case (Case No. 5D16-1503), the defendant hotel asked to interview a juror and for a new trial following a verdict in favor of a woman injured in a slip and fall accident on its property. The trial court denied both motions, and the hotel appealed. Initially, the case was filed after the injured plaintiff fractured her kneecap after slipping in a puddle of water in the hotel lobby. The kneecap injury required several screws to be surgically placed in her knee. The lawsuit went to a jury trial, in which the jury found the injured woman and the hotel to each be partially negligent. Despite her partial negligence, an award of nearly $400,000 was granted to the injured woman.

During the Voir Dire phase of the jury trial, a juror questionnaire was filled out by each potential juror. Included were two questions that asked if the juror or a member of their immediate family had been a party to a lawsuit and if the juror or a member of their family had been accused, a complainant, or a witness in a criminal case. The juror at issue in this appeal had answered No to both questions, despite several criminal charges and convictions, a bankruptcy, and a divorce. The juror had also lied about her length of residence in Florida. The defendant hotel argued that if the juror had answered those questions truthfully, she would not have been on the deciding panel. To show that the juror’s deceit potentially affected the outcome, the hotel pointed to the major theme in its defense that the injured plaintiff was dishonest about her cellphone use at the time of the slip and fall accident.

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Florida case law has long held that the proprietor of a business must use reasonable care in maintaining the property. The owner or manager must learn the actual condition of the premises and then either make the area safe or warn of any dangerous conditions. If a condition is obvious, or one that can be readily perceived through the ordinary use of the senses, the proprietor is relieved of the duty to warn.  Stack of palletsA First District Court of Appeal decision (Case No. 1D16-1285) looks at what constitutes an obvious condition and when a proprietor is relieved from liability under premises liability law.

In the case, the injured patron of a grocery store went to make a purchase and obtain empty boxes. He made four trips in and out of the store. During these trips, another company was delivering a shipment of beer. The beer was stacked about five feet high on a pallet between the entrance and exit doors, with an empty pallet sitting on the delivery cart’s prongs to the right of the exit. The injured patron saw the empty pallet but tripped and fell, suffering injuries. The injured patron filed suit against the grocery store, alleging the store failed to warn of the dangerous condition and failed to keep the sidewalk safe.

During the early part of litigation, the injured patron provided an affidavit from an expert, alleging the store created an unsafe condition. The store provided still-shots from video surveillance. The injured patron had previously testified during a deposition that he did not notice the empty pallet on the first two trips, but he did notice it on the third. The injured patron testified that he tripped on the prong underneath the pallet, rather than on the pallet itself. After reviewing the evidence provided by both sides, the trial court granted the store’s motion for summary judgment, determining the pallets to be an open, obvious, and ordinary condition. The court found that the condition was not inherently dangerous, relieving the store of any duty to warn and liability for injuries.

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Personal injury litigation presents challenges at every turn. After a lawsuit is filed, parties often submit motions before trials are scheduled, seeking various types of relief from default judgment to dismissal. In a recent case (No. 2D15-0834), the Third District Court of Appeal reviewed a summary judgment for the defendants in a slip and fall lawsuit. The court agreed with the defendants that there was no genuine issue of material fact for a fact-finder to decide, and it dismissed the case against the hospital and cleaning company.  Emergency arrivalThe injured woman, who suffered a slip and fall accident in the emergency room hallway of a hospital, appealed the decision.

The accident occurred when the woman arrived at the emergency room to assist her mother. Upon arrival, she found her mother resting and learned that she would need to be admitted to the hospital once a bed was open. After five hours had passed, the woman decided to find someone to determine how much longer they’d have to wait, and she saw what she believed to be an EMS paramedic with a spray bottle in the hallway cleaning a stretcher. The woman attempted to go around but then slipped and fell on what she “guessed” was spray liquid. The woman filed suit against the hospital, the housekeeping system, and the Risk Management Division of the county.

Throughout the litigation, the injured woman provided statements about who she thought was in the hallway and what she thought caused her to slip. The injured woman stated that the person cleaning the stretcher “may be a rescue” and also testified that there were no signs indicating the floor would be wet. She acknowledged that she didn’t see any mops, mop buckets, or food service items. She also stated that the substance smelled like a pine-scented cleaning product, and she wasn’t sure how long the substance was on the floor. The hospital and cleaning company moved for summary judgment, based on the lack of evidence that either of them knew or should have known of the slippery condition. Both the hospital and the cleaning company argued they employed staff to ensure the spaces were kept clean and clear, and they implemented a schedule to systematically check and clean surfaces.

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In Florida car accident cases, it is commonplace to see an insurance company indemnify, or take on a personal injury action on behalf of its insured. It is not often a hospital takes on a claim on behalf of a patient, but it happened in the recent Florida Court of Appeal case, Putnam Community Medical Center v. Florida Birth-Related Neurological Injury Compensation Association (aka NICA), No.1D16-32. The appellate court certified the hospital’s ability to sue as an interested third party because it had a direct economic interest in avoiding civil litigation and liability for injuries that might otherwise be covered by NICA, § 766.302(2), Fla. Stat., an Act that provides benefits to qualifying infants with birth-related neurological injuries.

NICA issues benefits to infants who suffer an injury to the brain or spinal cord caused by oxygen deprivation or a mechanical injury during delivery that results in a permanent and substantial mental or physical impairment. Hospital birth A baby from a single gestation must weigh at least 2,500 grams (approximately 5.51 pounds) at birth. A baby from a multiple gestation must weigh 2,000 grams (approximately 4.41 pounds) at birth. A disability or death due to a genetic or congenital abnormality is not covered by NICA.

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To litigate a Florida personal injury lawsuit, the action must be filed within the prescribed period set by statute and in the correct forum. The time period may differ, depending on the type of negligence action, and can potentially be changed by a contractual agreement between the parties to the case. Likewise, certain criteria set by statute must be met to file an action in state or federal court, and these can be limited even further by contractual agreement. The federal Eleventh Circuit Court of Appeals in Chang vs. Carnival Corp. (Case #: 14-13228) addresses these limits, reviewing whether or not the injured passenger attempted to file suit within the contractually agreed upon parameters set by her cruise ticket.

The injured passenger slipped and fell while on a cruise on December 9, 2012. The injured person’s ticket included a forum selection clause, which limited the time to file suit to one year and required the suit to be filed in the Southern District of Florida federal court, as long as subject matter jurisdiction requirements were met. Wet FloorIf those weren’t met, the forum selection clause then limited any state court filings to occur in Miami-Dade County, Florida. The injured passenger initially hired an attorney based in California. The attorney was twice notified by the cruise line that it would not waive the forum-selection clause on September 4, 2013 and October 22, 2013. The injured passenger then hired counsel in Florida, who filed suit on December 4 or 6, 2013 in state court instead of federal court, as required by the forum selection clause. The cruise line moved to dismiss the state court action. While the motion to dismiss the state action was still pending, the injured passenger’s counsel then filed suit in federal court, nearly three months after the one-year limitation had already passed.

The cruise line filed for summary judgment in the federal court action, again pointing to the failure to file within the prescribed deadline at the correct location. The injured passenger argued that the limitation had equitably tolled, and the case should not be dismissed, since she tried to meet the requirements of the forum selection clause. On appeal, the injured passenger pointed to another, similar case in which the federal court allowed a different injured passenger to continue with his negligence action, despite filing after the one-year deadline and in state court. (See Booth v. Carnival Corporation, 522 F.3d 1148 (11th Cir. 2008).) The circuit court acknowledged they did find in favor of the injured passenger in that case, noting that equitable tolling occurs when four things happen. First, the state court must possess subject matter jurisdiction concurrently with the federal court. Second, the state lawsuit must have been dismissed solely on the ground of improper venue. Third, the defendant must have been aware prior to the expiration of the limitation period that the injured person intended to file suit. Fourth, the injured passenger must be entitled to believe that his state filing might be sufficient, since defendants are able to, and often do, waive the defense of improper venue.

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Maximizing damages in personal injury cases can be more than negotiating and litigating with the at-fault party. If there are unpaid or underpaid medical bills, hospitals and other medical service providers can seek reimbursement from the injured person. Insurers may also seek reimbursement from the policy-holder or from another insurer, depending on how much was paid, if there were multiple insurers obligated to pay, and what was agreed upon in each policy. In Humana Medical Plan Inc. vs. Western Heritage Ins. Co. (No. 15-11436), the Eleventh Circuit Court of Appeals assessed whether or not a corporate insurer, acting as an Medicare Advantage Organization (MAO) under Medicare Part C, can sue the insurer (the primary payer) for a hotel chain that settled a personal injury case with a woman injured on hotel property.  Florida HotelThe MAO initially sought reimbursement from the injured woman and her husband, but then it chose to pursue the insurer, creating new federal case precedence for Florida.

Following the premises liability accident, the injured woman sought medical treatment, which was billed to and paid by the MAO at $19,155.14. After the woman sued the hotel property, the MAO sent her a bill in the same amount, which is allowed under Part E of the Medicare Act (known as the MSP), under which Medicare payments are secondary and reimbursable if any other insurer is liable. This includes a personal injury defendant’s insurer. The amount was not appealed by any party to the action. As part of the settlement, the insurer and hotel chain tried to include the MAO on the settlement draft. The injured woman and her husband refused and sought sanctions for non-compliance with the settlement agreement. The amount was held in trust, and the hotel chain paid $115,000 to the couple. The insurer then went after reimbursement from the hotel’s insurer under the MSP private cause of action, 42 U.S.C. § 1395y(b)(3)(A), which allows double damages. The Florida federal district court granted summary judgment to the MAO, ordering the double damages under the MSP, and the hotel’s insurer appealed.

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In all Florida personal injury cases, the jury must decide whether to believe some or all of the version of events put forth by the plaintiff, or some or all of the version of events put forth by the defendant. Formally, they are tasked with determining any genuine issues of material fact. Case law places this task firmly in the hands of a jury. Judges, on the other hand, are responsible for determining matters of law, and they must allow the jury to hear all relevant evidence that is not precluded by law. In a recent decision, McNabb v. Taylor Elevator Corp. (2D15-4838), the district appellate court looked at whether or not an expert witness unveiled a genuine issue of material fact in his affidavit, and whether the trial court erred by ruling in favor of the defendants’ summary judgment, dismissing the case.

The injured party in this case filed suit after sustaining injuries from slipping on an oil leak near an elevator on the premises of a condominium complex.  Elevator Buttons An elevator seal broke prior to the accident, leaking into the machine room and out into the hallway where the fall occurred. The elevator service technician testified that the leak was dripping every two seconds and that the oil was a quarter-inch deep. The injured man alleged that the elevator and the surrounding area were negligently maintained. The defendants in the case (the condominium association and the elevator servicing company) filed for summary judgment, arguing that the testimony of the inspectors ruled out negligent maintenance, since there was no leak at the time of the inspection. The injured man submitted the testimony of his own expert witness, a mechanical engineer, who opined that the seal had been leaking for between 4 1/2 and 18 days. The expert based his determination on the rate of the drip, the depth of oil observed, and the dimensions of the machine room.

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Across Florida, people suffer all types of injuries at the hands of others’ negligence. Civil law provides a way to help those injured become financially and physically whole again, while holding those responsible accountable for their actions. What needs to be filed can vary from case to case, so it is important to have experienced Florida personal injury counsel at your side. If the negligent party is a government entity, the defendant may be able to claim immunity from suit, formally known as “sovereign immunity.” The Second District Court of Appeals recently reviewed a slip and fall action, and it reversed the ruling in favor of the county, allowing the injured woman to continue her case in Nelson v. Hillsborough County, Florida (2D15-579).

caution-wet-floor-sign-1-1444538-640x480The trial court dismissed the injured woman’s personal injury complaint with prejudice when she filed suit after slipping and falling outside the county’s courthouse. The county filed a motion to dismiss with prejudice, arguing the injured woman failed to sufficiently allege compliance with the notice requirements found under the state law governing sovereign immunity. (See Florida Statutes Section 768.28(6)(a).) This statute provides a waiver of sovereign immunity in tort actions brought against the state or any of its agencies or subdivisions, but only after the claimant presents a claim in writing to the appropriate agency and the Department of Financial Services within three years after the claim accrues.

The notice provided by the injured party must also allege that they were in compliance with 768.28(6)(a). This then shifts the burden to the defendant to deny such compliance, which can then return the burden to the injured party to prove the allegations concerning the subject matter. The appellate court pointed out that this process did not instantly lead to a consideration of dismissal. In looking at the history of this case, the court noted that the injured woman’s complaint included a statement asserting that proper notice had been given, but the injured woman failed to attach any documentation to back up her assertion.

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