Recently, the Florida Supreme Court was asked to weigh in on whether a claimant could pursue claims of dangerous instrumentality against two parties – both parents of the driver, one the title holder and the other the “bailee.” The “bailee” is one who gains possession/control of property but does not actually own it. Here, the father of the negligent, 21-year-old driver was the title-holder. The mother was the bailee; she was the primary driver of the car, but both parents frequently permitted their son to drive it as well.

According to court records in Emerson v. Lambert et al., the young man was driving home from dinner when he struck a motorcyclist, who is the plaintiff in this case. The crash was catastrophic, leaving the motorcyclist a quadriplegic.

In the subsequent Florida injury lawsuit, plaintiff named the driver and his parents as defendants, the latter two allegedly vicariously liable under the dangerous instrumentality doctrine.more

Jurors would later hear testimony that while the mother was the primary driver of the car, it was considered a “family car,” and anyone of driving age was free to take the extra key and use the car as needed. On the day of the crash, the young driver said he understood he had both his parents’ general permission to use the car. He was unsure if he’d spoken to his father that day, but he did expressly ask his mother for permission to take the car before leaving. She granted it.

As the trial wound to a close, the mother sought a directed verdict, arguing she couldn’t be liable under the dangerous instrumentality doctrine because the doctrine didn’t support holding family members liable as bailees. The trial court denied this motion, citing the 2000 Florida Supreme Court decision in Aurbach v. Gallina, a prior state supreme court ruling that left open the chance that a family member with identifiable property interest in a vehicle could be held vicariously liable, even if they didn’t personally own the vehicle.

The question of the mother’s liability as the bailee of the vehicle was put to the jury. The instruction was that if the greater weight of the evidence showed that she, as the vehicle bailee, gave her express or implied consent for her son to drive the car, then she should be held liable for his negligence.

The jury decided that as far as the crash itself, the driver was 75 percent liable and the motorcyclist 25 percent liable. It also found that the driver’s father as the car title owner and mother as bailee could be held vicariously liable for his negligence. Total damages were set at $27.4 million. After weighing fault apportionment and medical/social security disability setoffs, that meant a net judgment in favor of the plaintiff at $18.9 million. That amount was reduced to the statutory maximum of $600,000, pursuant to 324.021(9)(b)3, which limits financial damages owed due to a vehicle owner’s vicarious liability.

The mother again sought a directed verdict, as well as a new trial. Both requests were denied, and the case went to the Florida 2nd District Court of Appeal. The appellate court denied the request for a new trial, but reversed the trial court’s ruling on the issue of the mother’s vicarious liability. The court ruled that if a title owner of a car entrusts that vehicle to a family member who in turn inflicts injury on others with the car, the title owner can be vicariously liable. If a non-title-holding family member has a property interest in a car (as a bailee or otherwise) and then entrusts that car to another who causes injury, the bailee can only be liable if the title owner denies liability for that entrustment. That wasn’t the case here, the 2nd DCA ruled. The father/title owner should be vicariously liable for the entrustment.

The case was remanded to the trial court, but the 2nd DCA certified the question to the Florida Supreme Court, which in a split-ruling determined the appellate court ruled correctly. Vicarious liability under dangerous instrumentality doctrine would extend her to the father as the title owner, but not also the mother as the bailee.

Florida is the only state at this point that recognizes the dangerous instrumentality when it comes to vehicle owner liability for driver negligence. But as this case shows, its application isn’t unlimited.

If you’re injured in a Fort Lauderdale car accident, a Broward injury lawyer can explore every possible avenue and fight for maximum compensation.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Emerson v. Lambert et al., Nov. 16, 2023, Florida Supreme Court

More Blog Entries:

4 Ways Broward Truck Accidents Differ From Other Types of Crash Claims, Sept. 7, 2023, Broward Injury Lawyer Blog

However, as our Broward injury lawyers can explain, that isn’t always the best case scenario. Default judgments are often successfully challenged. And even a Florida default judgment stands, plaintiffs may have a tougher time collecting on them than on cases with more responsive defendants, as the latter are more likely to have financial resources.

What Exactly is a Default Judgment?

To explain a default judgment in an injury lawsuit, we first need to recognize that part of the right to due process – as laid out both in the U.S. and Florida Constitutions – require that the defendant be put on notice of the proceedings and also be given the opportunity to be heard.

When the plaintiff files their injury lawsuit, they will spell out in the complaint exactly who the defendant is, what they did, how this resulted in damage to the plaintiff, and what sort of remedy the plaintiff is seeking. The defendant is considered put on notice when they’ve been served with a copy of the complaint as well as a court summons. That summons spells out clearly what a defendant has to do if they wish to defend the claim. It also tells them what can happen if they choose to outright ignore the lawsuit. The court provides the defendant a certain amount of time in which to formally respond in the form of a motion or answer that denies liability. The summons also lets the defendant know that if they don’t do anything, they might lose their case via default judgment.

Legislators and courts have concluded that justice is best served when all parties are fully informed and actively participating. However, they aren’t expected to wait forever – and unresponsive defendants aren’t rewarded for their lack of participation. Florida Rules of Civil Procedure allow plaintiffs to ask the court to issue a default judgment if the defendant doesn’t file any answer to the lawsuit by the deadline. If the court grants a default judgment, they decide the defendant is liable by default and will issue liquidated damages.

Will I Still Need a Trial After a Default Judgment?

As our Broward injury lawyers can explain, there are basically two reasons your case might still go to trial after a default judgment.

The first of those has to do with unliquidated damages. Unliquidated damages – those not expressly stated in a contract or objectively known and quantifiable – must still be decided by a jury if they aren’t resolved in settlement talks. For example, let’s say you’re injured in a crash. Part of your damages include $5,000 in property damage to the vehicle itself. You get a bill from the auto body shop. Those damages are liquidated. Clear, objective, quantifiable. However, let’s say you’re also claiming damages for the pain and suffering caused by your injuries. These are unliquidated damages. They’re subjective, not easily quantifiable. They must be proven to the court and decided on by a jury.

The second reason you might still end up having the case go to trial following a default judgment is that the defendant successfully challenges that finding. As previously mentioned, courts don’t favor default judgments. They would rather cases be resolved according to merit. For this reason, Florida Rules of Civil Procedure do allow for relief from a default judgment in cases of excusable neglect, surprise, inadvertence, or mistake. In addition, they must also have a meritorious defense – meaning they have a reasonable case to be made about a factual point of contention in the case, such as liability or damages.

Excusable neglect means that they have a good reason for why they didn’t respond in a timely fashion. They can’t simply say, “I forgot.” Examples of excusable neglect might be hospitalizations, emergencies involving immediate family members, or good faith settlement negotiations in which the defense believed no default judgment was being sought. The courts generally wish to avoid wins based on technicalities, though they can happen.

If you are considering filing a personal injury or wrongful death case in South Florida, it’s a good idea to consult with an experienced injury lawyer to fully understand your legal options.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

ASK JUDGE SMITH: ‘DEFAULT JUDGMENTS AND DAMAGES’, Jan. 3, 2023, By Judge J. Layne Smith, Florida Bar News

More Blog Entries:

Florida Wrongful Death Lawsuits Bring Closure, and a Safer Future, Aug. 1, 2022, Broward Personal Injury Lawyer Blog

As our Fort Lauderdale personal injury lawyers can explain, this could impact how we as attorneys approach settlement negotiations.

The case that kickstarted the dispute in Gallardo v. Marstiller is a tragic one. A 13-year-old girl has been left in a persistent vegetative state after she was hit by a truck while getting off a school bus. She received a settlement of $800,000 against the owner of the truck, the driver, and the school board. (The cost of catastrophic injuries like this for someone so young can easily stretch into many millions of dollars over her lifetime.)

But then, the Florida Agency for Healthcare Administration imposed a lien on her settlement money, asserting that it was entitled to seize $300,000 of the money that was set aside for past and future medical expenses. The district court in Florida ruled against the state, arguing the federal Medicaid Act barred the state from being reimbursed for past paid medical expenses from the portion of the settlement that is set aside for future medical expenses. In the summer of 2020, the U.S. Court of Appeals for the 11th Circuit reversed in favor of the state’s action.

It was appealed to the U.S. Supreme Court, which heard oral arguments in January and is expected to rule in the coming months.

This was expected to be a fairly straightforward question of statutory interpretation on what state Medicaid programs should receive from third-party litigation – but the high court was surprisingly divided. Most justices appeared to agree that where the state had paid for injuries that the beneficiary suffered, it had a right to take from the part of the settlement/damages that is apportioned to past medical expenses. The problem arises, though, when the settlement reached for past medical expenses isn’t actually enough to repay Medicaid for what it paid. So then is the state also allowed to take part of the settlement set aside for future medical expenses?

Federal statutory guidance on this is a bit confusing. For starters, Medicaid is responsible for paying medical expenses. It does not loan money so they can be reimbursed later. So for the most part, the state isn’t allowed to recover its expenses from the person who was injured. But the game changes when a third-party was responsible for the injury and thus is liable to pay for the injured person’s expenses. In that instance, the state can seek reimbursement from that third party, per 42 USC 1396k(a)(1)(A). The way that statute is worded though, it might seem to allow for collection for past payments from a future medical expense fund. However, a bit further down, the provision seems to indicate a narrower definition.

The justices focused a lot of analysis on the statutory language. Several of their initial comments seeming to suggest that the language supports the state’s view that it can collect on all medical expense payouts, whether for past or future medical expenses, up to the amount the state has paid. However, as the discussion progressed, a number of the justices seemed to be dissatisfied with the broad implications of the state’s legal interpretation. By all accounts, Sotomayor appeared firmly against the state’s position, but how the other justices will decide is still up in the air.

Although it’s understood that the state has the right to subrogation and recovery of payments it’s already made, the broader interpretation could require personal injury lawyers representing Medicaid-covered clients to negotiate for higher reimbursement of damages dedicated to all medical expense reimbursements.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources: SCOTUS Hears Arguments on Florida Medicaid Reimbursement Dispute, Jan. 21, 2022, SCOTUS Blog More Blog Entries: What if the Driver Who Hit Me Was Not Insured?, Aug. 15, 2021, Fort Lauderdale Injury Lawyer Blog

Third parties, meanwhile, can be liable and compelled to pay damages to the person injured on top of what he/ she receives for workers’ compensation – but only if the plaintiff can prove the third party negligent.

Many serious Florida work injuries involve some type of fault from a third party, whether that’s:

• A general contractor or property owner who fails to make sure the work site is free from an unreasonable risk of hazards (known or foreseeable);
• A negligent driver who strikes a work crew on the road;
• A product manufacturer that designed/ made/ sold a heavy machine that is unreasonably dangerous, even when operated as intended.

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It’s important in these cases to make sure you’re working with an experienced work injury attorney because collection of workers’ compensation benefits can directly impact what one is able to collect from third parties (you can’t be paid twice for the same medical expenses, for example) and your workers’ compensation insurer or health insurer or hospital may be entitled to subrogation rights. All those entities are going to have experienced attorneys working or them. You need to make certain you have an attorney looking out for your best interests.

Ladder Fall Injury Prompts Third Party Liability

The Centers for Disease Control and Prevention reports that 43 percent of all fatal falls and 20 percent of falls resulting in injury among workers involve ladders.

A case recently before the U.S. Court of Appeals for the Fifth District, involved a worker who sued the owner of a hotel-casino had hired his employer as a subcontractor to clean kitchen hoods and vents. Defendant owned both the property and the defective ladder (and no one disputed the ladder was in unsafe condition).

The subcontractor had been unhappy with the ladder situation, raising the concerns three years earlier. It suggested a platform be built to allow for easier access. They even submitted a platform design. The hotel-casino rejected this, citing budget concern. So for the next several years, subcontractor’s employees – including plaintiff – would access the roof of the hotel via ladders that were leaned across the gap and tied to a railing on the roof. The parties dispute owns the ladders or set them up, but the hotel didn’t typically oversee the subcontractor’s daily work.

On the day in question, plaintiff climbed the ladder from the casino roof to the hotel roof. The ladder, however, slipped and he fell onto the gangway below, suffering serious injuries.

He received workers’ compensation through his employer, but now is seeking further damages in a third-party liability lawsuit against the hotel-casino. He alleged the company was generally negligent and specifically could be liable as the owner/ custodian of defective property. The trial court had ruled that while it was undisputed defendant owned the ladder, there was no dispute plaintiff failed to inspect the ladder and therefore he could not prove it unreasonably dangerous.

The federal appeals court reversed. Material questions remained about whether defendant could be liable for allowing the ladder defect to exist and persist.

If you suffer a fall at work, an experienced work injury attorney in Broward can help you sort your legal options.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Renwick v. P N K Lake Charles, LLC, Aug. 27, 2018, U.S. Court of Appeals for the Fifth District

More Blog Entries:

Federal Court in Florida: Third-Party Sexual Assault Lawsuit Against Cruise Line May Proceed, Aug. 20, 2017, Fort Lauderdale Personal Injury Attorney Blog

Such damages are typical to seek in Florida crash injury claims, but this last one is what we want to focus on here. While serious injury, disability and medical costs can be established with documentation such as medical records, bills, bank statements, pay stubs and tax returns (among other types of evidence), loss of life enjoyment is a little trickier because it is highly subjective. It’s also sometimes referred to as “hedonic damages,” “loss of life’s pleasures” or “lost value of life.” It is a type of non-economic damages, which means there is no clear-cut value for the loss, as opposed to economic damages, which are the result of monetary losses suffered as a result of an injury or wrongful death.

In this case, as reported by the Florida Record, the motorist alleges defendant struck her vehicle in December 2016, causing her to sustain severe injuries that required hospitalization and ongoing nursing care. It also had the effect of exacerbating an existing medical condition. Details of the injuries and crash circumstances weren’t given in the initial complaint, except that it occurred at an intersection of the southbound I-95 ramp in Fort Lauderdale and plaintiff alleges defendant failed to maintain control of her vehicle or exercise proper lookout for other vehicles.

Given that sometimes psychologists are called as expert witnesses in civil injury litigation to establish loss of life enjoyment, a case law analysis by the Psychology Department at the University of Nebraska is insightful. The study noted that while it can be difficult to quantify non-economic damages in general, judges often make assumptions about quantification, with total damages for harm generally being higher when those for pain and suffering (physical) are treated as a separate issue from loss of life enjoyment (mental/ emotional). Courts across the country have varied on whether to allow this, with judges and justices finding against it reasoning that it results in duplicative damages. Florida courts do allow it to be sought separately.

The study noted the primary factor considered for loss of life enjoyment is the effect of the injury on a person’s lifestyle (which has correlated with jurors’ perceptions of injury severity and thus damage awards). As Fort Lauderdale car accident lawyers, we establish this by showing how active, happy, fulfilled one’s life was before the crash, how much life they had left to live and how the crash has negatively impacted that. Although it may seem somewhat unfair, for this particular type of damages, those who will tend to receive higher loss of life enjoyment awards are:

• Younger;
• Have young families/ loving spouses/ other close and meaningful relationships;
• Are active and involved in their communities and recreation;
• Are in the prime of a successful career or on the verge of a promising one.

These aren’t the only factors, but they often come into play. This particular type of damages is one of the primary reasons one will want to be cautious about what they post in social media and other public forums after a crash. This is because while we all know our social media presence is a projection of our “best selves,” it can be construed by defendants in a courtroom as one not having suffered as severely mentally and emotionally as alleged.

If you have been in a serious crash in Fort Lauderdale, it’s important to discuss these issues with an attorney as soon as possible, before agreeing to a settlement with an auto insurance adjuster.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Lawsuit claims I-95 car accident left woman disabled and disfigured, July 29, 2018, By Janie Mallari-Torres, The Florida Record

More Blog Entries:

Court: Crash Case Defendant/ Employer Not Entitled to Summary Judgment, June 3, 2018, Fort Lauderdale Car Accident Attorney Blog

However, a recent investigation by NBC6 in Miami revealed child injuries at trampoline parks have become incredibly common. Just in the last two years in South Florida, there have reportedly been nearly 300 911 calls made regarding injuries and falls at trampoline parks. In roughly 70 of those instances, paramedics were required at the scene.

Those incidents included:

• A 4-year-old boy who suffered a sprained ankle;
• A 6-year-old girl left injured and bleeding when a larger boy jumped on top of her;
• A boy who suffered a traumatic brain injury at a Broward County trampoline park.

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Broward personal injury attorneys who handle such cases know that these injuries are far more common than some parents think, often including broken wrists and leg fractures. Many of these facilities have proven outright dangerous, particularly for young patrons.

Dispatch records showed emergency 911 assistance was required 60 times at one location alone – in one instance twice in a single day.

Throughout these facilities, you may note prominently-posted rules indicating safety is a priority, outlining forbidden moves and grounds for removal from the facility. Typically two employees are required to supervise a given area at any given time. Yet the television journalists observed as numerous teenagers were seen doing double back flips with impunity – even though multiple flips and double bouncing are forbidden. The employees did not intervene.

The American Academy of Pediatrics published an analysis of trampoline park injuries in 2016, looking at trends in emergency department visits for those who sustained trampoline park injuries as opposed to injuries suffered as a result of home trampolines. From 2010 to 2014, they concluded that while home trampoline injuries remained stagnant, trampoline park injuries increased more than 10-fold – from 581 to 6,932. In terms of injuries, patients with trampoline park injuries skewed older compared to those injured during use of home trampolines (average 13.3 years compared to 9.5 years). The most common injuries across the board were sprains and fractures, and those at trampoline parks were more likely to involve lower extremity injuries, open fractures and spinal cord injuries. Most injuries were the result of falls, contact with other jumpers and flips.

The report indicated that just in Broward County alone, at least 12 injury lawsuits were filed against a single company – Off the Wall. Most of those injury claims allege the company was negligent for its failure to offer proper supervision. Trampoline parks often take the stance that these injuries are not their fault, but that of the jumper. Further, most parks require the parent or legal guardian of jumpers to sign a waiver of liability. Every one of these parks requires a liability waiver, and given the language in F.S. 744.301 pertaining to waivers in inherently dangerous activities, may prove an effective defense in many cases, but that does not mean parents should not at least discuss the potential for an insurance claim or litigation, as they are not 100 percent bullet-proof. A Fort Lauderdale child injury attorney can help you examine your legal options.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Trampoline Parks Linked to Hundreds of Injuries in South Florida, July 17, 2018, By Connie Fossi and Dan Krauth, NBC6

More Blog Entries:

Amateur Fireworks on the Fourth Leave Man Seriously Injured in Florida, July 5, 2018, Broward Injury Attorney Blog

Now, she girl has filed a personal injury lawsuit in Fort Lauderdale, accusing both the vendor and the city of negligence. The inflatable structure had been affixed to a basketball court at the park and three children were inside when a tornado reportedly swept through and picked up the structure.

A recorded cell phone video of the incident shows the horror of those involved as the structure was lifted off the ground. Screams can be heard on the jostling video. The little girl inside, now the plaintiff, would later tell reporters she was thinking, “I was about to die.” She suffered a head injury, was admitted to the Broward Health Medical Center and treated overnight.

In addition to the City of Fort Lauderdale, vendor All Star Events, based in Miami Lakes, is named as a defendant.

The injury lawsuit complaint alleges the vendor acted with negligence with regard to the way it assembled and tied down the bounce house. The vendor is also accused of failing in its duty to actively monitor the weather conditions and failing to warn those who used the bounce house of possible risks. Finally, the vendor reportedly did not train its personnel for emergencies and the children inside were not appropriately supervised.

With regard to the city, plaintiffs allege officials had a duty under premises liability law to ensure guests were reasonably safe. Putting a bounce house on a concrete basketball court when the weather conditions were subject to rapid change was negligent and the city knew or should have known this created a dangerous condition on its property.

The city allegedly did not test the bounce house for performance issues in high winds. The city also did not inspect the feature or monitor the vendor as it should have. Plaintiff also alleges the city is negligent for allowing children to remain inside, despite the change in wind speed and weather conditions.

The day after the incident, when interviewed by reporters, the girl’s father reportedly made a comment indicating it was, “Just an accident,” and “Things happen.”

But at the time, the family’s attorney now says, the family did not fully grasp what had just occurred, and that there could be other parties responsible for what happened. It’s understandable. The fact is, we cannot control nature, but we can anticipate potentially inclement weather and control our response to it.

Think about it like this: A driver can’t control whether it rains. But if rain does fall, the driver owes a duty of care to other motorists to slow down.

In a situation like this, inclement weather was a reasonably foreseeable hazard for which those involved had a responsibility to prepare.

The girl’s parents say she is now mentally and emotionally challenged as a result of the head injury she incurred that day.

Injury attorneys for all three of the children who were inside the bounce house have been trying to negotiate with the law firm representing the vendor, but as of yet failed to reach a settlement agreement. This prompted the plaintiff’s decision to proceed with a personal injury lawsuit.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Child injured after tornado lifted bounce house from beach sues Fort Lauderdale vendor, April 22, 2016, By Linda Trischitta, The Sun-Sentinel

More Blog Entries:

Construction of Guardrails on Alligator Alley Faces Criticism, May 6, 2016, Broward Injury Lawyer Blog