Wrongful Death

May 11, 2018

Florida Wrongful Death Claims: Awards to Survivors v. The Estate

In any Florida wrongful death lawsuit, we’ll need to decide which claims are viable – and who the claimants should be, as only certain individuals and entities have a legal right to pursue damages after someone’s death. With some exceptions, these include the decedent’s:

Surviving spouse;
Children in being at death (with the law considering them minors until age 25 and no recovery allowed for adult children if action is based in medical malpractice);
Parents of a minor child under 25 (may recovery mental pain and suffering);
Decedent’s estate.

That last one can be tricky because it may ultimately benefit some of the same survivors who collected under other claims. While survivors may claim lost wages and loss of consortium, the estate in some cases may have a separate claim that might consist of lost earnings, lost net accumulations and medical or funeral expenses. An estate’s lost earnings of decedent would span from the date of injury to the date of death – less any amount of monetary support – that a survivor lost during that period. Continue reading

October 11, 2017

Blood-Alcohol of Pedestrian in Accident Allowable as Evidence in Wrongful Death Lawsuit

By Ansara Law Personal Injury Attorneys

It’s estimated that nearly 50 percent of all pedestrian accidents involve some type of alcohol use – either by the motorist or the pedestrian. This can become a point of contention in an injury lawsuit because evidence of impairment – even if it’s not an illegal, given the circumstances – can still be used to discredit a witness or to show a person at-fault or at least comparatively at-fault. However, the mere fact of impairment – even if it’s against the law – does not decide liability in a civil case. That’s why even civil cases involving drunk drivers aren’t a shoe-in.

In Florida, a finding of comparative fault (meaning plaintiff shares some of the blame for what happened) will not prohibit a plaintiff from pursuing the case or from collecting damages. However, per F.S. 768.81, Florida’s comparative fault law, it will proportionately reduce the amount of damages to which one is entitled. So for instance, if a plaintiff is deemed 30 percent at fault and defendant 70 percent at fault, plaintiff will only be able to collect damages on that 70 percent.

In a recent pedestrian accident case out of Pennsylvania, a major sticking point was whether evidence of a decedent pedestrian’s blood-alcohol level was rightly allowed into evidence by the trial court, or whether it was unfairly prejudicial an inadmissible absent any other independent corroborating evidence. Continue reading

August 11, 2017

Homeowner Had No Duty to Protect Child From Drowning Where Relative Assumed Supervision

By Ansara Law Personal Injury Attorneys

Florida has the highest child drowning rate in the country, with the Florida Department of Health reporting enough children under 5 die this way every year to fill three preschool classrooms. Not only is it devastating, it’s infuriating because virtually every one of these instances is preventable. This is not to say anyone intends for this outcome, but there simple precautions go a long way.

Many of these incidents occur when there are many people around, such as family gatherings or holiday celebrations. Often it comes down to a miscommunication between adults who are supposed to be supervising the child. Property owners can be held accountable in some cases on the theory of premises liability or negligent supervision. However, it will come down to the individual facts of the case. If there is no defect in the pool, it often comes down to negligent supervision. If a homeowner assumes responsibility for supervision of young swimmers and then breaches that duty, he or she may be held liable. However, if another guest steps in an assumes that responsibility, the homeowner may no longer have a duty of care to supervise.

This was the case recently in a wrongful death lawsuit brought by the father of a young boy who drowned in a backyard pool at a family gathering. Continue reading

August 2, 2017

Fair Injury Risk Underscored by Fatal Accident During Peak Fair Season

By Ansara Law Personal Injury Attorneys

The state fair – and many of the other local fairs held throughout Florida and the country – are heavily anticipated and fondly remembered. However, the risk of potential injury and death cannot be overlooked, particularly when it comes to the safety of the amusement rides. From the Ferris wheel to the Fire Ball, these rides may be thrilling – but they can also be extremely dangerous, as highlighted recently after a tragedy in Ohio.

There, at the state fair, an 18-year-old U.S. Marine recruit lost his life when the ride he was on malfunctioned and he fell from his seat. Seven others, ages 14 to 42, were seriously injured. Investigation into the accident is ongoing, and fairs across the country have taken similar rides out of commission while they conduct more thorough inspections. The ride involved in the fatal accident had been inspected several times as it was being erected, and was permitted by an inspector the day of the accident.

Part of the problem, engineering experts and inspectors told USA Today, is that there are too few inspectors and a patchwork of safety regulations that are decided on a state-by-state basis. Congress relinquished control of fair safety oversight to the states back in the 1980s, so there are no concrete, uniform standards for fair and ride safety and inspections. Continue reading

July 22, 2017

4th DCA Reverses $3.6M Liability Award in Death of Pregnant Woman, Unborn Child

By Ansara Law Personal Injury Attorneys

The Fourth District Court of Appeals has reversed a $3.6 million damage award in the case of a pregnant woman killed while lounging poolside by a hotel, where she was struck by a drunk driver. Plaintiff, decedent’s husband and father of their unborn child, who also died, alleged the hotel was negligent in failing to create a barrier between the cabana and the road, which plaintiff alleged was known to be a hazardous condition.

Although the trial court decided the case in plaintiff’s favor, finding the hotel 15 percent at fault, the appellate court reversed, finding the trial court should have issued a directed verdict on the issue of negligence and also addressed a number of impermissible comments made by plaintiff’s attorney during both opening and closing arguments.

Though the outcome is disappointing for plaintiff, it’s important to highlight why the court decided the way it did, as it’s likely to affect future cases. While this case began with the irrefutable negligence of the drunk driver, this claim at its heart was one of premises liability. The assertion was there was a dangerous condition on the property, defendant hotel knew or should have known about it and yet failed to address it or warn patrons of it. Continue reading

April 30, 2017

GOP Tort Reform Bills Targets Medical Malpractice Lawsuits, Injury Claims

By Ansara Law Personal Injury Attorneys

Proponents of tort reform are seizing on their opportunity with a GOP-controlled Congress to push forward with a series of measures that would make it harder to win medical malpractice and personal injury lawsuits, as well as to obtain just compensation.

As The New York Times reported, one of those measures would impose new limits on lawsuits involving care that is covered by Medicare, Medicaid or private health insurance subsidized by the Affordable Care Act, with some limits applying to product liability claims as well as medical malpractice litigation involving physicians, hospitals and nursing homes. In effect, it is lower income and older people who would find it the most difficult to win lawsuits for injuries caused by defective drugs, defective medical devices or negligent medical care. This bill is part of the plan to replace the Affordable Care Act.

Proponents of the measure say it is a necessary means to lower the number of “frivolous lawsuits” that drive up health care costs for everyone else. Of course, this assertion has been disproven time and again. Take for example the Florida Supreme Court’s decision in 2014 rejecting a 2003 medical malpractice law and lambasting the legislature for manufacturing an alleged medical malpractice crisis that didn’t exist to pass unnecessary tort reform. In a 5-2 ruling, the court suggested lawmakers created the crisis to cap damages on medical malpractice cases, which saves a modest amount of money for many at a “devastating” cost on a few – namely those who have suffered the most severe and egregious injuries due to medical negligence or defective medical products. The law was ultimately deemed unconstitutional under the state’s equal protection clause. Continue reading

April 26, 2017

Unproven Stem Cell “Treatment” Blinds Women at South Florida Clinic

By Ansara Law Personal Injury Attorneys

Stem cell research holds a great deal of promise in addressing some of the most problematic conditions and ailments of humans. That said, it’s still a relatively new science, and treatments haven’t been thoroughly vetted. Initially, this spurred wild growth of stem cell “treatment” clinics in countries like Mexico and China, where medical standards can be more lax than in the U.S. However, we are finding a number of clinics have cropped up in the states as well – sometimes with troubling outcomes.

In fact, as recently reported by Scientific American, there are more than 550 clinics across the country that offer interventions for everything from autism to Alzheimer’s disease – and all of these treatments are unproven. Most of these clinics offer help with orthopedic procedures, such as sports injuries or joint pain, and there are some that offer cosmetic procedures, such as face lifts.

In South Florida, as reported recently in a case study published in the New England Journal of Medicine, one of the most serious instances of these rogue treatments was detailed after three women were permanently blinded after undergoing an unproven stem cell “treatment” that was advertised as a clinical trial. Continue reading

April 3, 2017

FHP Launches Program to Help Solve Hit-and-Run Crash Cases

By Ansara Law Personal Injury Attorneys

The Florida Highway Patrol is starting a new effort to solve hit-and-run crash cases and compel drivers involved in collisions to remain on scene.

It’s a major problem in the Sunshine State, where more than 99,000 hit-and-run accidents were reported just last year. That is fully one quarter of the total number of crashes, law enforcement officials say. Yet it only accounted for 15,900 of the charges filed last year. Mostly, that’s because the at-fault driver(s) took off and were never found.

In Broward County alone, the Sun Sentinel reports, 14 people were killed and 119 injured in the approximately 12,000 hit-and-run crashes in 2016. Palm Beach County officials, meanwhile, logged 8,000 hit-and-run crashes there resulting in a dozen deaths and 102 injuries. In Miami-Dade County, it was reported there were 19,000 hit-and-run crashes resulting in 20 deaths and nearly 150 injuries. Continue reading

February 19, 2017

Poor Road Design, Inadequate Signage Blamed in Car Accident

By Ansara Law Personal Injury Attorneys

Plaintiffs in a recent wrongful death lawsuit before the Kansas Supreme Court argued that the township, the county and the state department of wildlife and parks were liable for the fatal car accident. Claimants attributed the crash to the failure to provide adequate barriers, signs or other warnings along sections of the road where the crash happened.

These kinds of cases can be challenging because there are special rules to abide anytime you sue a government agency. Most government agencies and government workers are protected by sovereign immunity statutes, but these are waived in some cases under certain circumstances.

In this situation, plaintiffs sued a number of government entities alleging liability in the deaths of two people on a road in Kansas. One of those was a young man who was a father to two children. His mother filed the claim on behalf of those children. The other was a young woman whose mother filed the claim on her behalf. Continue reading

January 14, 2017

Wrongful Death Lawsuit Alleges Restaurant Negligent in Triple Murder

By Ansara Law Personal Injury Attorneys

Good Samaritans are often lauded when they intervene in potentially perilous situations to help others. But are there grounds to assert negligence for those who fail to intervene in such circumstances?

This is what is being alleged in a wrongful death lawsuit in Ohio, where a woman and her two daughters were gunned down by her husband at a Cracker Barrel restaurant after a heated confrontation that ensued when she told him she was leaving him. The family had gone to the restaurant for a birthday dinner with their two 10-year-old girls when the events took a turn. The husband reportedly threatened to, “kill them all,” shouted an expletive while paying for the bill, accidentally dropped several shotgun shells from his pocket. According to the wrongful death lawsuit, filed by the woman’s brother, the girls’ uncle, the mother called a friend and the police and begged the manger to allow her and her daughters to hide in the restaurant’s walk-in cooler. The manager allegedly refused the request, telling her the restaurant doesn’t get involved in domestic disputes.

Her husband returned with a shotgun and killed her and her two daughters, who were hiding in the restroom. Police then shot and killed the gunman. An attorney for plaintiff alleges the woman and her daughters were left to take care of themselves in a dangerous situation. He cited the protocol that many chain restaurants and retail facilities have to deal with violent or active shooter situations, and argued that such incidents, while terrifying, are in fact foreseeable. Continue reading