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

Weighing both the viability and value of a potential case is important when considering how to proceed. But you’re going to have a tough time answering that question without first talking to a Florida injury lawyer. Even if you have a basic sense of what negligence is and the fact that you were hurt by someone else’s failure to use care, other details can stop a case before it starts.

For instance, if the other driver is negligent but does not have insurance and you don’t have uninsured motorist coverage, you may not have a personal injury case. If you’re in an accident and the other driver was at-fault but your injuries were not serious and permanent, you may have to rely solely on your own personal injury protection coverage (PIP) because your case doesn’t meet the serious injury threshold for filing a Broward personal injury lawsuit, as outlined in F.S. 627.737.

We’ve also seen situations where an injured person erroneously assumes they don’t have grounds for a case because they were partially to blame. The fact is, comparative fault (fault that is shared by the injured person) won’t necessarily kill a case. Per F.S. 768.81, partially at-fault plaintiffs can still recover a portion of the damages from the other at-fault party, so long as their own blame isn’t greater than 50 percent. (In the legal world, we call this “modified comparative fault with a 51 percent bar.” Until a few months ago, we used to have a system of pure comparative fault, meaning you could collect on 1 percent of damages even if you were 99 percent at fault. Florida tort reform legislation that passed and went into effect March 2023 changed that.)

Don’t Rely on Guesswork to Decide If You’ve Got Grounds for an Injury Case

These kinds of scenarios are why it’s important for people who aren’t injury lawyers to make presumptions about whether they’ve got a case.

Fortunately, there’s no reason to rely on guesswork because the vast majority of Broward injury lawyers offer free initial consultations to help you answer this fundamental question. We’ll look carefully at the facts you’ve gathered so far, determine what gaps need to be filled in, identify potential defendants, provide a rough estimate of how much value your case may have, and give a general timeline/breakdown of the process.

But how do you know if the attorney is a straightshooter and not just telling you that you have a legitimate injury case to make money? Because, as any Broward injury lawyer can tell you, there’s rarely money to be made on a weak case.

Civil injury case attorneys are paid on a contingency fee basis. In Florida civil injury cases, plaintiff attorneys (those working for the person injured) don’t get paid unless you win your case. As noted by The Florida Bar, the attorney agrees to accept part of the money recovered as the fee for their services. The exact amount depends on the complexity of the case and your timeline, but the percentage is usually somewhere around 20-30 percent. Because there is no attorney’s fee paid unless we win, there’s no conflict of interest when providing an assessment of the viability of a case to a prospective plaintiff.

What Elements are Needed to Win a Broward Personal Injury Case?

As noted by the American Bar Association, one might have grounds for a personal injury case if the injuries that were sustained were the result of negligence by the other party. In layman’s terms, negligence means someone had a responsibility to use a degree of care, they failed to exercise that level of care, and the result was physical injuries that led to financial damages.

Some examples of potentially viable personal injury cases in Florida:

• A car accident caused by a drunk or distracted driver.
• Physical assault at a nightclub where security was sorely lacking.
• Falling down in a commercial parking lot with non-obvious tripping hazards.
• Negligently delayed medical diagnosis of a serious condition that led to a worse prognosis than if it had been caught sooner.

The vast majority of personal injury cases are rooted in negligence, though there are a few outliers. For example, injuries from incidents like dog bites or defective consumer products may be based on a theory of strict liability. In those cases, it’s not necessary to prove an absence of care. Strict liability focuses on impact rather than intent.

If you have questions about whether you have grounds to file a Fort Lauderdale personal injury lawsuit, we can help.

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

Additional Resources:

LEGISLATURE PASSES COMPREHENSIVE TORT LEGISLATION, March 24, 2023, By Mark D. Killian, Florida Bar Association

More Blog Entries:

Florida Personal Injury Plaintiffs Now Face New Comparative Fault Standard, April 10, 2023, Fort Lauderdale Personal Injury Lawyer Blog

Central to the decision to retry the case was the fact the trial court removed the question of whether the nursing home aide who reportedly raped the woman was acting in the course and scope of employment.

As Broward nursing home injury attorneys can explain, skilled nursing facilities can be held vicariously liable for the negligence and even intentional misconduct/criminal acts of employees – but only if they were acting in the course and scope of employment. This is known as the doctrine of respondeat superior, Latin for “let the master answer.”

In many cases wherein a plaintiff seeks to hold a company accountable for damages inflicted by a worker, key issues will include:

• Whether the worker was an employee or an independent contractor (respondeat superior doesn’t apply where the worker is an independent contractor);
• Whether the worker’s actions occurred in the course and/or arose from the scope of his/her employment.

Employers can also be held directly liable under theories like negligent hiring, negligent retention and negligent supervision.more

Retrial on Nursing Home Abuse Lawsuit

The evidence did show that the nursing assistant had sexually assaulted the decedent. The case was brought on behalf of her estate, and plaintiff attorneys posited that the nursing assistant was an employee of the facility and thus it could be concluded he was acting in the course and scope of employment.

At a pre-trial hearing, a supervisor at the nursing home spelled out a number of regulations the nursing home has to prevent incidents like this. Plaintiff argued the fact that the nursing assistant didn’t follow nursing home regulation wasn’t proof enough that the aide wasn’t acting in the course and scope of employment, and trial court agreed.

The case went to trial. During jury deliberations, jurors asked whether an employer was as equally liable as an employee who committed a criminal act. The court referred jurors to the jury instructions, which didn’t give any explanation of the course and scope of employment standard. Plaintiff sought to recover $2.3 million, but jurors ultimately awarded $1.75 million.

On appeal, defendant argued that the issue of whether the aide was acting in the course and scope of employment wasn’t the court’s to decide. That should have been up to the jury. The Virginia Supreme Court agreed to review the dispute, and sided with the defense, noting the only stated reason the trial court gave for deciding the conduct in question occurred in the course and scope of employment were the allegations made in the complaint.

In remanding the case for retrial, the high court noted the first principle of respondeat superior is that vicarious liability can be imposed on an employer when the service itself in which the tortious act was carried out was within the ordinary course of an employer’s business. This is referred to as the job-related-service principle. Although it’s true vicarious liability isn’t limited to those acts of a servant that promote an employer’s objective, it’s also true that vicarious liability can’t be imposed if the tort didn’t arise out of the very transaction, service or task that employee was paid to perform.

Previous courts have held that the job-related-services test means that but for the employee’s wrongful act, the service would otherwise have been authorized by the scope of employment.

In other words, if this act occurred while the aide was changing a dressing, the employer might be vicariously liable. But if the employee specifically went in that room to commit assault, not performing any job duties, it’s possible the nursing home would not be held vicariously liable.

In the case of the latter, the nursing home could potentially still be held responsible for direct negligence on other grounds, but not vicariously liable.

If you suspect a loved one has been a victim of nursing home abuse in South Florida, we can help determine whether you have a case, which defendants may be liable and on which legal theories.

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

Additional Resources:

Responsibility for the acts of others, July 2010, BUMC Proceedings Journal

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

There is of course the growing element of distraction now that most every driver has access to their own person computer at all times via their smart phone. But there is something else going on, researchers say.

We are now at the tail end of what has been one of the longest roads to economic recovery since the end of WW II. The labor market has improved. Unemployment is down. So are gas prices. This has meant people have more money in their pocket. More freedom to take a trip. More incentive to take a private vehicle rather than opt for public transportation or bicycling. In turn, there are more vehicles on the road and a higher likelihood of traffic deaths.more

That’s the theory posed by researchers at Texas A&M University, where professors at the school’s Health Science Center School of Public Health have studied the issue extensively. Researchers say they are still combing through the data, but note that in 2015, gas prices dropped more than $1 per gallon in many areas. When that happens, for every $1 decrease in the cost of a gallon of gas, there is an 11 percent spike in national roadway deaths.

The groups primarily affected by this? Young drivers under the age of 24. Most commonly, it affects drivers between the ages of 18 to 24. Researchers think the reason for this has to do with the fact that they generally have less disposable income, so they are more directly affected when the gas prices start falling. They are more likely to alter their driving habits to a price drop or increase.

Another correlative relationship the study authors have found is between unemployment rate and traffic deaths. Our Broward injury lawyers understand that for every one percentage point decrease in the overall unemployment rate, there is a 9 percent increase in the national number of motor vehicle deaths.

What that tells us is the reported increase in deaths on the road that were reported in South Florida in the middle of last year likely weren’t some kind of odd fluke. What’s worse is that it’s probably only going to continue.

The researchers say it is entirely plausible that the national traffic fatality statistics for 2016 could end up being more than 20 percent higher than they were last year.

There are some factors that could work in our favor, though. For example, cars are increasingly being designed with improved safety features, including things like electronic stability control, rear view cameras and sensors and collision-avoidance technology. Other studies have shown drivers of newer model vehicles suffer fewer fatalities when involved in traffic crashes than those in older cars. Those older cars are going to become less common and technology is only going to get better.

Still, human error remains the No. 1 cause of traffic deaths. By remaining alert, sober and cautious, every single driver can help to curb this problem.

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

Additional Resources:

How the economy affects traffic fatalities, Jan. 21, 2016, Science Daily

More Blog Entries:

Uber Lawsuit Filed as Miami Considers Driver Screenings, Feb. 2, 2016, Fort Lauderdale Car Accident Lawyer Blog