As our Fort Lauderdale personal injury lawyers can explain, tort reform proponents (mostly lobbyists for large corporations and insurers) have for years painted Florida as a “judicial hellhole” and decried how easy it was for plaintiffs to win big payouts for things like car accidents, premises liability, boating accidents, medical malpractice, etc.

The reality is: It’s not easy to win Florida personal injury cases, and never has been. Now it’s about to be even harder, and accountability for insurance companies has been weakened. Having a dedicated, experienced personal injury lawyer advocating on your behalf has always been an imperative to success in these cases, but now more than ever.

Among the changes now in effect thanks to HB 873: more

• No more pure comparative fault standard. Previously, Florida subscribed to a pure comparative fault standard with respect to personal injury cases. What that meant was that parties were only financially responsible for the percentage of harm they were found to have caused – even if that was as little as 1 percent. If you were hurt in a Florida car accident for which you were 99 percent at-fault and the other driver was 1 percent at-fault, the other driver would still be compelled to pay for 1 percent of the damages. Now, that’s not an ideal outcome because it means someone who incurred $100,000 in damage would only collect $1,000 – not enough for most personal injury lawyers working on a contingency fee basis to even take the case. But the point is everyone was responsible for their own share of the blame. This new law erases that. Instead, we will now have a modified comparative fault standard with a 51 percent bar. What that means is the same principle applies – everyone is financially liable for their own share of fault for what happened – unless the plaintiff is more than 50 percent at-fault. If the plaintiff is found to be 51 percent or more responsible, they will collect nothing. The other driver who was 49 percent at-fault? They will pay nothing. Similar standards will apply for lawsuits pertaining to things like dangerous conditions on properties (including slip-and-falls and criminal attacks made possible because of negligent security), bicycle accidents, boating accidents, motorcycle accidents, etc.
• Shorter statute of limitations for personal injury cases. Prior to this new law, the statute of limitations for filing a personal injury lawsuit was 4 years. It’s now been halved – down to 2 years. We understand 4 years might sound like a lot of time, but keep in mind: Complex personal injury claims can take a lot of time to thoroughly investigate. The benefit of a longer statute of limitations was not that we could dredge up years-old claims and try to make quick cash. It was because settlement negotiations – how 95 percent of Florida personal injury cases are resolved – can be extensive in more serious, complex cases. Not every claim necessitated a lawsuit, so long as they could be resolved within that 4 year time frame. Now with less time, there will be increased pressure to pursue resolution through the already overburdened Florida courts. They’ll be compelled to hurry up and preserve their right to file a lawsuit before that window closes.
• Reduction in damages for negligence security. Property owners and businesses that welcome guests on site for their own financial gain have a responsibility to ensure those places are reasonably safe – given the type of business, the vulnerability of the guests, the surrounding neighborhood, a history of problems, etc. When they fail to do so and someone is victimized by a criminal act as a result, those property owners can be held liable for negligent security. For the most part, direct civil claims against the attacker themselves are rare because those acts aren’t covered by insurance and the perpetrator usually can’t pay out-of-pocket. And anyway, the claim is not about the attack itself; it’s about the lax security that made the unsuspecting guest/student/patron/customer highly vulnerable to attack. But this new measure will allow defendants in these cases to argue that the assailants – whether named as a defendant or not – should be apportioned some of the financial responsibility. (Bear in mind, there are already mechanisms for this, and the criminal justice system can order restitution by the attacker as well.) But by allowing property owner defendants in negligent security cases to assert this, they can wiggle out of full financial responsibility for the damages. If the assailant is named as a defendant and apportioned part of the blame, chances are they won’t be able to pay it. And if the assailant is not a named defendant and apportioned part of the blame, the victim can’t collect their percentage of the damages. Either way: The property owners, corporations, and insurers win.
• Modified attorney’s fees for bad faith claims. Bad faith insurance claims are filed when an insurance company fails to treat claimants fairly and in accordance with the contract they have with their insured. It can result in triple damages for plaintiffs if they win (though winning isn’t easy without strong evidence). It used to be that attorney’s fees in these cases were automatic if the claimant prevailed. In other words, if the insurer acted in bad faith, they’d have to pay the legal bill of the person who was forced to take the action to court in order to get a fair shake. No more. Plaintiff attorneys’ fees – even if they’re successful – will have to come out of the damages that plaintiffs collect. Less money for those harmed, more money in the pockets of insurers. Also, there is now a “safe harbor” provision saying that so long as the insurer tenders the policy limits or amount demanded within 90 days “of being provided sufficient information,” they won’t be subject to bad faith claims. Also, the court can now consider “comparative fault” with respect to the plaintiffs in these cases as well. That is, the insureds and people injured, despite having far less power in these situations compared to insurers, now owe the insurance companies a reciprocal duty to act in good faith. This was not an actual issue for insurers, mind you. It’s just another method for them to retain as much money as possible.

While these changes are disheartening, they don’t necessarily mean your Florida injury claim is a foregone conclusion. It does mean that we’ll have to fight harder than ever to ensure your rights and best interests are protected. We are committed to doing just that for our clients.

Additional Resources:

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

More Blog Entries:

How Likely is a Default Judgment in My Broward Personal Injury Claim? March 10, 2023, Fort Lauderdale Personal 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 a longtime Fort Lauderdale personal injury lawyer, I take seriously the responsibility to advocate for my clients’ best interests. That begins even with prospective clients. I start with a brief overview of the facts of their case as presented. I look to identify any parties that may be held legally liable. I’ll want to assess the anticipated scope of damages and apply the knowledge and experience gained in decades of practice in Florida injury law to provide a frank assessment of the likely viability and value of their case – and how I may personally be able to assist. All of this can happen before a person has chosen to formally hire an injury lawyer.

Given that you may want to engage more than one Broward injury lawyer in a free initial consultation before deciding which to hire, it’s best to walk in with a good sense of what to have ready. The more a person understands going in what to expect – and what may be expected of them – the more they’ll get out of the process. Ultimately, the goal is to find an injury lawyer who is not only experienced, qualified, and with a proven track record of success, but someone with whom you feel you can be honest, trust, and have easy communication.

Here are some Frequently Asked (and Answered) Questions to get you started:

Why Do Florida Injury Lawyers Offer Free Initial Consultations in the First Place?

Many attorneys charge by-the-hour, and the value of that hour can vary, depending on their experience, the complexity of the case, etc. Attorney consultation fees can run anywhere from $0 to $400. There are a few reasons initial consultations with injury lawyers are free. One has to do with the type of case, and how it’s paid. Plaintiffs in injury lawsuits do not pay attorney’s fees unless or until they win their case. This is called a contingency fee arrangement. Claimants in these types of cases aren’t typically large companies (which can afford lawyers on retainer). They are vying for fair compensation from someone who has legally wronged them. The injury lawyer they hire is paid at the end of a successful case with a previously-agreed portion of the insurance money or damages awarded. Contingency fee arrangements allow people with meritorious cases – but not a lot of extra cash upfront – to access quality legal representation. Attorneys are compelled to be honest with prospective clients, and only help pursue injury cases that have a pretty decent shot at winning. Knowing that many injury case clients don’t have a lot of money upfront, free initial consultations are a low-risk way to help both sides glean the information they need to get a good sense of whether the case is worth pursuing, and if the attorney is a good fit for the client’s needs.

Can an Attorney Give Me Legal Advice Before I Hire Them?

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Generally speaking, no, the attorney will not provide you with specific legal advice at an initial consultation. The purpose of this meeting is more focused on whether the prospective client wants to hire the lawyer and if the attorney believes they have the ability and capacity to take the case. Unless an official attorney-client relationship is created (via contract), you aren’t likely to get legal advice. That said, if you come prepared with lots of information, as well as questions about how the law applies to cases like yours, you may be able to get many of your questions answered.

Does Attorney-Client Privilege Apply in a Free Initial Consultation?

Again, generally speaking, when prospective clients are pursuing legal advice or representation and they reasonably believe the communication they’re engaged in to be confidential, information exchanged in the consultation is privileged. This applies even if you never hire or pay that attorney. There is an understanding that a certain amount of sensitive information must be exchanged in order for both sides to decide whether the attorney is a good fit for the case. If you aren’t sure whether certain information is confidential and you would prefer it to be, you can always ask for clarification.

What Should I Bring to the Meeting With a Broward Injury Lawyer I’m Considering Hiring?

The strength of a personal injury case is in the evidence. In the early stages of a case, you may not realize all information that may be pertinent, but you’ll want to gather as much as you can for the attorney to review. Although the specifics may vary from case-to-case, in general what we’re trying to establish is that the defendant owed a duty of care, breached that duty, and caused the resulting injuries – for which you should be financially compensated. Some of the evidence that helps us establish these facts:

• Photographs and video of the scene
• Accident reports
• Investigative notes (from police, store managers, witness statements, etc.)
• Detailed notes from the injured person, describing what happened (Day, time, exact location of incident, weather conditions, people who were with you, what you experienced during the incident, type/full extent of injuries, details of any medical treatment, impact on your work/school/social life/family commitments, etc., impacts on close relationships, etc.)
• Media reports of the incident
• Screen shots of any social media posts, photos, images, videos, etc. regarding the event by you or others involved
• Medical records
• Medical bills
• MRI and X-ray results
• Insurance information (health, auto, etc.)
• Name, address, contact information of others involved, their insurers, etc.
• Documentation of any lost income (include your regular pay stubs, W-2s, income verification, etc.)
• Information on recommended therapies, medications, future surgeries, transportation costs, etc.
• Any communication you or others on your behalf have already head with the insurer(s) involved

What Kinds of Information Can an Injury Lawyer Tell Me in an Initial Consultation?

A Broward personal injury lawyer cannot give you a guarantee on any outcome of your case. That said, they can rely on their own experience, knowledge of Florida law, and the information you’ve provided about what happened to off you some feedback on how things could go and what you’re options are. Some things on which an attorney may be able to shed light – either in the initial consultation or fairly early on in the case:

• Your legal rights based on the situation and facts provided.
• How long the claims process can take. (Claims may be resolved without litigation. If litigation is necessary, resolution will take longer.)
• Time limits you have to file your case (the statute of limitation).
• What sort of evidence will be essential to your claim.
• Who potential defendants are in the case.
• Whether legal representation is necessary for your type of claim.
• Actions you should avoid while your claim is pending.
• Details on how insurance companies are likely to approach your claims.
• Possible outcomes in the case – including how much it may cost you, and how much you may be owed based on the information you provided.

Leaving an initial consultation, you may not have all the answers, but you should feel better educated – and hopefully empowered. If you have additional questions, we’ll do our best to provide you with information so that you can make informed decisions about your next steps.

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

Additional Resources:

How to Hire a Lawyer, Florida Bar Association

More Blog Entries:

4 Most Common Types of Fort Lauderdale Personal Injury Lawsuits, Oct. 8, 2022, Broward Injury Lawyer Blog

What PIP Does NOT Cover

Although PIP is the go-to for no-fault accident coverage in Florida, it does not cover every scenario, every type of loss – or even every person. The following is a list of what PIP won’t cover:

• Property damage. If your car is damaged in the crash, you’ll need to file a separate claim with your own insurance company (or the insurer of the at-fault driver) in order to be compensated for necessary repairs. Florida law requires drivers carry at least $10,000 in property damage liability coverage.
• Motorcycle operators. PIP coverage is not mandated – or even available – to owners/operators of motorcycles or other self-propelled vehicles. Motorcyclists must rely on other types of auto insurance coverage.
• More than $10,000 in medical expenses. No matter how serious your injuries are, PIP is only going to cover up to $10,000 in medical expenses. In fact, PIP is only designed to cover up to 80 percent of “reasonable medical expenses.” Furthermore, if your injuries are not “emergent,” PIP may cover no more than $2,500 in medical expenses. Unless you take legal action against the at-fault driver, you and/or your health insurer will be liable for the rest. If your injuries are “serious and permanent,” as outlined in F.S. 627.727, you may step out of the no-fault system and pursue a claim against the at-fault driver for damages for the full amount of your losses. If they do not have insurance or lack enough insurance, you may file a claim with your own uninsured/underinsured motorist (UM/UIM) carrier for the difference.
• More than 60 percent of your lost wages. PIP will cover up to 60 percent of your lost wages if you can’t work due to your injuries – but not if it equals more than $10,000 (and usually far less because that is all that’s available to cover your medical expenses too). If you can’t return to work at all or must take a lower-paying job as a result of your injuries, you could be facing substantial income losses. These are recoverable from the at-fault party if you step outside the no-fault system and pursue damages.
• Pain and suffering. PIP coverage only covers economic losses. This would include things like medical bills and lost wages. But Florida car accident victims are traumatized, both physically and emotionally. The law recognizes the impact of this, which is why crash victims can pursue damages (compensation) for pain and suffering – but only in a civil claim. You won’t recover pain and suffering damages from your PIP carrier.

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Other PIP Coverage Considerations

Other things to note about PIP coverage is claimants have a very short window of time in which to file a claim. PIP claims must be filed within 14 days. If you wait longer to seek medical attention/file your claim, your damages may be limited to $2,500 – or less.

If you have ongoing medical expenses, PIP will only cover those incurred within three years of the crash date. Any long-term medical care or treatment beyond that is likely going to be paid out-of-pocket, unless you take legal action against the other driver.

Note too that PIP coverage also has a deductible, which varies by carrier and policy. Typically, the deductible is about $500. So even if you have $10,000 in coverage, you’d still be paying at least $500 out-of-pocket.

If you have been in a Fort Lauderdale car accident, our injury attorneys offer free initial consultations to advise you of your rights regarding PIP coverage and third-party claims.

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

Additional Resources:

Consumer Pamphlet: Automobile Insurance, The Florida Bar

Protecting yourself involves not providing any details to which they are not entitled. It’s important that you appreciate you do have a contract and legal obligation to honor. You are required to inform the insurance company about the accident. That means providing the basic necessary information. Beyond that, your lips should stay sealed until you’ve talked to a personal injury attorney.

Note too that you don’t have this same obligation to the other drivers’ insurer. You benefit nothing from giving that insurer a statement or signing any paperwork they send you. All you need to do is get the insurance information from the other driver. You don’t need to provide them with information.more

It’s best to let your attorney communicate with all insurers on your behalf. This saves you from making statements that could damage your case. Some phrases to avoid:

• “The accident was my fault.” Never admit fault for an accident. You may be required to provide some facts, but don’t offer up your opinions or emotions about what happened. Keep in mind that whatever you say might be used against you. Furthermore, you may not be aware of every aspect of the situation. You know what happened from your perspective. You may assume you’re at fault when in fact you are not. Give only the facts to avoid reducing your odds of compensation.
• “I’m not injured.” You may “feel fine.” But some injuries might not be apparent right away. Some, like internal bleeding, traumatic brain injuries, whiplash, etc. can take longer to manifest. It might be several days or possibly even weeks for you to discover these injuries. If you make a statement before that indicating that you have no injuries, it may be tougher to get compensation for them later on.
• Making an official statement. Avoid doing this until you talk to your lawyer. You aren’t under any obligation to make a recorded statement to anyone, regardless of what the insurance company tells you. Even if you will eventually need to make an official statement, it can wait until you discuss it with your lawyer.
• “I think…” or “I guess…” If you aren’t sure the answer to a question, you can answer with a succinct, “I don’t know.” The insurer doesn’t need your opinions or estimations, and you’re likely only to hurt yourself by offering them. Some insurers may try to talk you into a corner or damage your credibility by pushing for answers to questions like distance between you and the other vehicle or the speed of the vehicles involved. If you don’t know the exact right answer to such a question, the correct answer is, “I don’t know.”

You should also avoid naming others involved or accepting a settlement before talking to your lawyer. It’s not your job to provide a witness list to the insurer. Your attorney can do it for you, if appropriate. Further, if the insurer makes a settlement offer, do not take it until it’s been reviewed by a lawyer. Once you accept an agreement, you are signing away your rights to future claims. That means even if it turns out you’re likely owed a more substantial sum, you probably won’t be able to do anything about it.

If you’re injured in a Fort Lauderdale car accident, our personal injury lawyers are available to answer your questions, gather evidence in your case and help you seek justice.

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

Additional Resources:

Traffic Accidents, Sun-Sentinel

The civil justice system makes personal injury representation more accessible by stipulating that Florida injury cases must be accepted on a contingency fee basis. What that means is plaintiff’s don’t pay attorney’s fees up front – or at all if they don’t win. Attorneys have incentive to be honest with you about the merits of your case, the extent of your damages and your chances at winning a favorable settlement or verdict.

That said, you might not need an attorney, particularly if your injuries are very minor. An injury lawyer will tell you will tell you upfront in a free initial consultation whether you can benefit from their services – or not.

What Does a Personal Injury Lawyer Do, Exactly?

An injury lawyer has many functions in civil tort cases. These include:

• Providing advice. The legal system can be a bureaucratic beast for someone who isn’t familiar with it. We can help.
• Explaining your rights. You may not realize how many individuals/businesses owed you a responsibility to use greater care. You may not recognize the potential for numerous claims. You may not grasp how much money you are actually entitled to claim. And chances are, you probably don’t know how to prove it all or establish that the defense’s evidence is suspect. This is where our objective, knowledgeable perspective and negotiation experience proves extremely helpful.
• Leveling the playing field. You can bet that the insurance company, grocery store, product maker, trucking company, hospital, etc. is going to have the benefit of a strong legal defense with experience. If you’re hoping for fair resolution, you should have the same.

We commit to being your investigator, your negotiator, your advocate and your voice. We file motions, conduct depositions (sworn questioning of witnesses), scrutinize insurance policies, track down and review your medical records, assess your damages, file any necessary claims forms, negotiate with insurers, guide you through mediation, prepare the complaint, create trial exhibits, represent you in court and determine if an appeal is necessary.

Signs You Should Hire a Fort Lauderdale Injury Lawyer

If your damages are minimal and you have no serious injuries and the monetary offer the insurance company makes seems reasonable, you may not need a South Florida injury lawyer. However, there are some scenarios for which it is almost imperative that you hire one. Some of those include:

• Your injuries are serious. The extent of your damages is going to depend heavily on how badly you were hurt, how high your medical bills are and how long it takes you to recover. But that doesn’t always mean those involved are eager to pay you what you’re owed. It’s important to hire a lawyer who can make sure you receive the total amount of compensation you deserve from all responsible parties.
• Your injuries disabling long-term or permanently. If you have to take more than a couple weeks off work, if you’ve been hospitalized or broken a bone that’s going to take months to heal or suffered some kind of disfigurement or loss of function – you should talk to a lawyer. The initial consultation should be free, and should give you an idea of the strength of your case and extent of your damages.
• It’s not clear who was at fault or there are multiple parties involved. In general, the more people who are claiming injuries from the same incident, the more complicated it’s going to be to resolve. If liability (fault) is not clear or if you are accused of being at least partially to blame (which can reduce your damage award), it’s best to hire an injury lawyer to handle it.
• The insurer won’t pay or is engaging in bad faith. Bad faith insurance, as outlined in F.S. 624.155(1), is a serious problem. It occurs when an insurer denies a legitimate claim for no reason, tries to get injured parties to settle for far less than a case is worth and generally doesn’t conduct its business fairly and honestly.

If you are questioning whether you should hire a lawyer, chances are good it’s worth at least consulting with one or two to help you make your decision.

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

Additional Resources:

When Do I Need a Lawyer? June 7, 2018, American Bar Association

More Blog Entries:

Exploring High Tech Florida Truck Accident Investigations, May 15, 2020, Fort Lauderdale Personal Injury Lawyer Blog

A bruised arm or a scratched leg likely isn’t going to cut it. PIP provides up to $10,000 in damages for medical expenses and 60 percent of your lost wages for the time you were forced to take off work. It will also cover things like travel expenses to doctor appointments. It will not cover things like pain and suffering or loss of consortium that would be available in lawsuit.

If your injuries are more serious and $10,000 will not cover your losses, a Broward injury lawyer can review the facts and help you determine if the injuries you’ve suffered medically meet the statutory threshold.more

Florida Serious Injury Threshold

PIP is considered your “primary” insurance following a crash, and it’s available regardless of fault. The downside of this is that it’s limited. $10,000 can seem like a lot at first blush, but the reality is it’s not much in the aftermath of a crash.

To pursue a personal injury lawsuit after a crash – before you can establish fault, before you can argue how much you should be paid – you need to show your injuries are serious enough.

The law breaks it down into four categories:

• Permanent or significant loss of an important bodily function.
• Significant and permanent disfigurement or scarring;
• Permanent injury, as determined within a reasonable degree of medical probability;
• Death.

The law doesn’t go into any further details about how courts should interpret this. What our Broward injury lawyers can say is that prior case law does provide some insight into which injuries meet the threshold and which do not.

Just as an example, a broken arm will likely meet the serious injury threshold. On the other hand, a sprained wrist most likely won’t, even if you’re in a lot of pain. The difference is that most broken bones will impair an important bodily function (i.e., writing, carrying, lifting, walking, etc.). It meets the first criteria, even if it’s not a permanent injury.

Different People, Same Injury, Different Serious Injury Thresholds

Our injury lawyers need to be careful to note there is no brightline rule about which injuries qualify. In fact, two different people could have the same injury and one might qualify while the other would not.

One example might be if an athlete sustains an injury like whiplash, the injury might not meet the “seriously impair” the athlete the same way it might a small child or elderly person – even though it’s the same injury.

This is why it’s important for an experienced Broward injury lawyer to carefully examine the fact pattern in your case to make a professional judgment about whether an injury is significant enough to impair a person’s life.

A defendant can always challenge the serious injury threshold. The defense can ask the court to make a determination on whether one’s injuries truly meet that threshold. If that happens, a hearing may be set, at which time both sides can present evidence, including expert witnesses who can testify as to the seriousness of your injuries and how it impacts your life.

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

Additional Resources:

F.S. 627.737, Serious Injury Threshold Statute

Whether we’re talking about a boating accident or a dog bite or a slip-and-fall injury or even a car crash, key questions to be resolved include:

• Who was at fault?
• To what extent were those persons at fault?
• What injuries resulted from the wrongdoing?
• How will those injuries impact a plaintiff, survivors, etc.?

That is a very broad oversimplification of the legal questions that arise, but the difficulty in answering them can shed some light on how long a claim may take to resolve.

For instance, as your Fort Lauderdale injury attorney sets about answering the question of “who is at fault?” we may discover there is more than one defendant with some responsibility. That could complicate the claims resolution process.more

In some cases, it could be the our client (plaintiff) bears some degree of fault. In most cases, comparative fault (as outlined in F.S. 768.81, defined as the degree to which someone is responsible for their own injuries) will not bar a plaintiff from prevailing in a claim against a defendant. It can, however, make the claim more difficult because it may reduce the amount of damages to which you are entitled.

Other Factors at Issue in How Long an Injury Lawsuit Will Take to Resolve

Many Florida injury lawsuits are resolved even before they become lawsuits. Claims filed with the tortfeasor’s insurer may be paid after some back-and-forth negotiation with claimant’s attorney. Although this process does not require the help of an injury attorney, it is advisable any time there is more than minor property damage at issue. Injuries that involve broken bones, scarring or time off work might be worth more than you’d imagine at first blush because of the potential for long-term impact and medical costs. Working with an experienced Fort Lauderdale injury lawyer helps ensure your best interests aren’t overlooked.

Other factors that may play a part in extending resolution of your injury claim include:

• Whether both parties agree as to how the accident happened and who was at-fault;
• Whether both parties agree as to the cause of victim’s injuries (was it this accident or another factor, such as a pre-existing condition);
• How long it takes to gather and present necessary evidence, such as medical records;
• Whether the case requires testimony from an expert witness (medical malpractice cases automatically necessitate them, but some car accident and slip-and-fall cases do too);
• Whether the court has an overcrowded docket/busy schedule.

In some cases, defendants and plaintiffs may agree on several issues – up to and including who is at fault – yet still disagree on what is a fair payment for damages. Trial may be held on just this point alone. Compared to cases wherein several points are in contention, these personal injury lawsuits will likely be resolved more quickly.

Although no injury attorney can give you a certain answer on how long your case will take to resolve or what the outcome will be, generally speaking a claim can take anywhere from a few months to several years to resolve. There are many variables involved. Your experienced injury attorney in Fort Lauderdale should be able to give you a reasonable time estimate – noting possible contingencies that could shorten or lengthen resolution – early on in your case. Often the faster you get in touch with an injury lawyer, the faster your claim can be resolved.

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

Additional Resources:

Florida Statute Comparative Fault, F.S. 768.81

Florida Statute of Limitations, F.S. 95.11(3)

More Blog Entries:

Florida Teacher Assaulted by Student Fighting to Collect Full $3 Million Verdict, Jan. 28, 2019, Fort Lauderdale Personal Injury Lawyer Blog

As Miami school injury lawyers, we are struck by a few different unique elements in this case. Firstly, most school assault injury lawsuits in Florida involve students who are either injured by other students or teachers. Schools unquestionably owe a duty of care to students over whom they have control and can be held liable in some circumstances for criminal assaults that occur on school property or are the perpetuated by school employees or contractors. It’s less common that claims are filed by teachers suffering injury by student. Not that it’s unheard of. An article published last year in Education Week revealed an estimated 6 percent of the nation’s nearly 4 million teachers were attacked by a student during the 2015-2016 school year. Another 10 percent were threatened with violence by a student. The article also highlighted a 2017 study published in the Journal of Interpersonal Violence indicating female teachers were more likely to be attacked than male teachers, with new teachers especially vulnerable to threats and violence.

This case hit all those marks. However, teacher injuries sustained in the course and scope of employment – whether a slip-and-fall or an attack by a student – are typically covered by no-fault workers’ compensation. For most work accidents and work injuries, this will be the exclusive remedy (only legal recourse) a teacher or school employee has against an employer district. Work injury exclusive remedy in Florida is spelled out in F.S. 440.11. The only exception is when the actions of an employer, as proven by clear and convincing evidence, reveal the employer deliberately intended to hurt the employee OR engaged in conduct employer knew (based on prior similar accidents or explicit warnings specifically identifying a known danger) was virtually certain to result in an employee injury or death AND that risk of danger wasn’t apparent to employee AND employer deliberately misrepresented or concealed the danger to prevent the employee from making an informed judgment about whether to perform the work.

Since changes were made to this state law in 2003, zero Florida work injury cases have met this exception to exclusive remedy threshold. Arguably, there is a good chance this teacher injury case might have met the proof burden, which is likely why the district chose to settle the case pre-trial for an amount in significant excess of statutory damage caps. District Seeks Millions in Compensation for Assaulted Teacher

In 2014, when this attack occurred at a Miami-Dade High School, claimant was a new teacher hired to work with hearing-impaired students in 2012, but the district reassigned her in 2012 to a position teaching children with emotional and behavioral disorders. This was the school’s first egregious mistake because the teacher was not properly trained for such a position. She was not given self-defense courses, which is a mandate for teachers who work with such high-risk populations – particularly those with a history of violence.

The attacker in this case was 18. During the previous school year, he was repeatedly suspended and eventually expelled for a number of confrontations wherein he threatened to harm school officials and other students. In the spring, he was arrested for written threats to kill/ maim, and he was found competent to stand trial for that alleged offense. Within three months, however, he was enrolled in plaintiff’s school, in plaintiff’s classroom. She knew nothing of his history – and, as The Miami New Times notes, the district broke the law when it failed to tell the teacher all this.

The attack occurred less than one month into the school year, with the student cornering the victim in a classroom, choking her unconscious, sexually assaulting her and then grabbing her cell phone and car keys before fleeing in her vehicle. He was caught later that day, arrested, convicted and sentenced to more than two decades behind bars.

Plaintiff sued the school district, which paid the victim $200,000. The school’s insurer paid her another $1.5 million – the policy limit. Now, the school is asking the state to pay another $1.3 million on its behalf to the victim, for a total compensation of $3 million.

If you are a teacher – or student – who has suffered injury due to a criminal attack at a Miami-Dade County school or at the hands of someone employed by the school, contact an experienced Miami-Dade injury lawyer for information about your legal options.

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

Additional Resources:

The Role of the Perceptions of School Climate and Teacher Victimization by Students, July 27, 2017, Journal of Interpersonal Violence

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Worker Injury in Defective Ladder Fall Spurs Lawsuit Against Hotel-Casino, Sept. 29, 2018, Miami Personal 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

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

Actual knowledge would be if the property owner/ controller created the mess or was directly informed of it. Constructive knowledge can be established with circumstantial evidence that shows the slippery condition had either lasted for a long enough time the property owner should have discovered it in the course of using ordinary care OR that it occurred with regularity and was therefore foreseeable.

This can be challenging, which is why the injury attorney you choose should be highly skilled and experienced with a track record of success in these cases in the last eight years since the law changed.

Recently in Miami, Florida’s Third District Court of Appeals affirmed a summary judgment in favor of retail giant Costco in a lawsuit alleging slip-and-fall injury in front of one of its stores. The case failed for plaintiff on the issue of knowledge.

According to court records, plaintiff went to the store at the request of her neighbor, who was a member. Plaintiff had never been to the site before. When she got there, her neighbor went to get a card while plaintiff began walking toward the entrance. As she was walking, plaintiff felt her right leg move out from underneath her and she fell directly onto her right knee. She screamed out in pain and a small crowd gathered round. A Costco employee assisted her until an ambulance arrived. She suffered a broken kneecap and later sued the store for liability.

However, Costco moved for summary judgment because there wasn’t any genuine issue of material fact about the company’s actual or constructive knowledge of the slippery substance on the floor. Trial Court agreed. The 3rd DCA affirmed on appeal.

Plaintiff argued the trial court erred by entering an order without elaborating on it and by granting the store’s request for summary judgment based solely on her own testimony.

As to the unelaborated order, the appellate court stated that while it may be preferable for a trial judge to specify the reasons for granting or denying a summary judgement, there is no rule or prior decision requiring they do so. As to the second issue, the court found there was no genuine issue of material fact about on one or more of the elements of negligence (i.e., a duty of care owed, a breach of duty, a causal connection between breach and injury and resulting damages.

Normally, the duties of a business to invitees is to take ordinary and reasonable care to keep the property reasonably safe for invitees and secondly to warn of dangers that were known or should have been known to the owner of which the invitee could not discovered. The 2010 slip-and-fall statute modifies the duty of a business when an invitee is injured by slipping in a transitory foreign substance. The clear intent of it was to shift the burden of proof in constructive knowledge negligence actions fully onto the plaintiff. In other words, the mere presence of water on the floor isn’t enough to establish constructive notice.

In this case, there was reportedly no dispute about the store’s actual or constructive notice about the liquid. Plaintiff stated she did not see any store employees around the liquid or by the entrance before or when she fell. It was not raining, the slip happened under an overhang in front of the entrance. She didn’t see the liquid on the floor before she fell and didn’t know what it was other than that it was wet. She had no idea how long it had been there and she saw no evidence someone had slipped in the same place prior to her fall. The appellate court ruled that absent any additional facts suggesting the liquid was there for an extended period of time or that this happened routinely, trial court properly granted summary judgment in favor of defendant.

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

Additional Resources:

LAGO V. COSTCO WHOLESALE CORP., Dec. 13, 2017, Florida’s Third District Court of Appeal

More Blog Entries:

Court Affirms Dog Bite Injury Verdict Against Dog and Property Owners, May 20, 2018, Fort Lauderdale Slip-and-Fall Attorney Blog

A girl who underwent a kidney transplant in 2007 took legal action against her pediatrician of seven years, alleging he should have diagnosed her with C1q nephropathy before it caused such serious health problems requiring the transplant. Her doctor countered she actually has a different disease, one that is acute and could not have been identified any sooner. After a mistrial the first time around, the family was awarded $4.1 million in damages at the second trial.

On appeal, defendant doctor argued the trial judge was wrong to allow multiple expert witnesses in the same discipline to testify on plaintiff’s behalf, considering a pre-trial order by the court to limit testimony to a single expert ion each area of medical specialty. However, a divided Florida Supreme Court ruled the doctors who testified were not doing so as “experts,” but rather as “treating physicians,” a distinction that could have an impact in future Florida personal injury lawsuits.more

Expert witnesses are required or necessary in a host of civil injury litigation actions, to help explain certain pertinent facts or prove causation or damages. They have special knowledge or experience that can help put evidence into perspective in a way that is clinical and impartial. In some injury cases, such as those stemming from medical malpractice, expert witnesses are mandated. In others, such as car accident lawsuits, they are necessary to proving certain elements, but they aren’t necessarily required.

Expert witness testimony is treated differently, more cautiously, than eyewitness testimony because it involves application of scientific analysis and is often given more weight by jurors. Following a 2017 Florida Supreme Court ruling, courts here use the Frye or “general acceptance” standard of vetting for expert witnesses, after years of using the more stringent Daubert standard used in federal courts. Daubert requires something of a mini-trial to determine whether experts are qualified, whereas Frye merely asks if methods are generally accepted by professionals in a given field.

Here, the court noted that testimony provided by treating physicians can blur the lines of what is simply fact testimony and what is expert testimony because physicians have scientific, technical or other specialized knowledge that might inform their testimony. While expert witnesses help a jury understand the facts, a treating physician is testifying as a “fact witness,” concerning his or her own medical performance on a certain occasion, rather than offering opinions on the medical performance of someone else. It still involves testifying with their specialized knowledge, but the testimony pertains to past facts based on personal knowledge. While experts testify with the benefit of hindsight, treating physicians don’t. They aren’t acquiring knowledge for the purpose of the lawsuit, but rather knowledge they gained in the course of treating their patient.

So while it was true that several doctors in the same specialty were allowed to testify on behalf of the plaintiff in this case, the state high court ruled this did not violate the trial court’s initial order to limit expert witness testimony to one expert per field per party.

Experienced Broward personal injury attorneys recognize when a case requires the insight of an expert witness and/ or treating physician to win a case, and can help you explore the legal resources available to you.

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

Additional Resources:

Gutierrez v. Vargas, March 22, 2018, Florida Supreme Court

More Blog Entries:

Florida Lawmakers Weigh Bill of Rights to Prevent Nursing Home Abuse, Neglect, March 3, 2018, South Florida Personal Injury Attorney Blog

Do not be duped by this report, even if it gets circulated in various media reports. Here’s the truth of the matter: The ATRA is part of a well-funded public relations campaign (one that has been discredited numerous times by media outlets as well as state and national legal experts and academics).

It’s an organization that receives millions of dollars from deep-pocketed CEOs and others with business interests who want to make it harder for you collect damages if you’re seriously hurt. It’s prepared by a business-oriented group that takes a clear stance against personal injury lawsuits and sizable class action awards. The American Association for Justice refers to the report as “slick propaganda.” It plays on the erroneous theory that people and attorneys are getting rich off bunk personal injury claims.more

Here’s the reality: It’s not easy to win a Florida personal injury lawsuit. Depending on the type of claim, there are numerous legal hurdles one has to clear just to make it to the trial phase. Settlement negotiations can be successful, but only if you’ve got a case that is reasonably more likely to prevail in trial than not. It also requires that you have a good personal injury attorney who is highly familiar with the law, case law precedent and effective legal strategies. High compensation verdicts and settlements are only awarded when there is solid evidence that plaintiff’s losses have been substantial – usually when there is serious and permanent injury or wrongful death.

The ATRA report bases its designation for Florida on a few recent decisions. One was a Florida Supreme Court ruling in Charles v. Southern Baptist Hospital of Florida wherein justices ruled a 2004 amendment to the Florida Constitution allowing patient access to adverse incident reports involving doctors they are suing for medical malpractice supersedes a federal law indicating these records should be confidential. The group claims this will discourage doctors from sharing information with the medical community about ways to limit future mistakes. But you know what else limits future mistakes? Accountability in the courts, most notably to those who have been directly harmed.

Other Florida high court decisions cited in the ATRA’s evaluation involved invalidation of arbitration agreements – particularly those involving nursing home patients. Of course, we know arbitration agreements are often mandatory when individuals are admitted to nursing homes, and they strip claimants of the ability to handle disputes (so often involving neglect, abuse and negligent care resulting in serious injury or wrongful death) in a court of law. Instead, they must go before an arbitrator and these outcomes are largely less favorable to defendant nursing homes. Plus, they are confidential, meaning future patients don’t have the benefit of learning which providers are lagging in quality of care. Further, the court did not wholly invalidate arbitration agreements, only those that are signed by a family member of the elderly, vulnerable victim.

The report also criticized the court’s refusal to enact the more stringent Daubert standard for expert witness testimony, instead opting to continue with the Frye standard. The latter is a general acceptance test to determine admissibility of scientific evidence that asks whether the scientific technique used is generally accepted as reliable in a relevant scientific community. Enacting the more stringent Daubert standard would make it harder for personal injury claimants to clear the initial hurdle, while keeping Frye doesn’t necessarily make these cases easier to win in the long run because they still have to clear all relevant proof burdens for any given claim.

The bottom line is the basis of this report’s conclusions are, at best, incomplete. The reality is it was specifically drafted with the goal of swaying opinions to limit injury plaintiff access to courts and compensation for damages. Our injury attorneys in Fort Lauderdale are committed to continuing to fight for the best interests of our clients.

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

Additional Resources:

The Worst Courts for Businesses? It’s a Matter of Opinion, Dec. 24, 2007, By Adam Liptak, The New York Times

More Blog Entries:

Federal Audit Finds Nursing Home Abuse Often Unreported to Police, Oct. 27, 2017, Fort Lauderdale Personal Injury Attorney Blog

It can be a powerful defense, and one our personal injury attorneys in Fort Lauderdale are committed to challenging head-on. We recognize there may be numerous exceptions to the open-and-obvious doctrine, including:

• Landowner knew people would likely be hurt even if they were aware of it;
• Negligence per se, which involves violation of a health or safety statute, for which landowner could be liable regardless of the awareness or actions of the injured party.

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If you’re injured on business property in South Florida, it’s important to consult with an injury lawyer who can help you ascertain the viability of your claim and brainstorm on effective challenges to likely defenses.

In a recent premises liability lawsuit weighed by the U.S. Court of Appeals for the Seventh Circuit, justices ruled in favor of defendant, based on the open and obvious doctrine defense.

According to court records, the defendant is the owner of a chain of home improvement stores located in the Midwest, with the one in question being in Illinois. Plaintiff and his adult son were at this store one evening in January 2014 to buy rolled insulation. It wasn’t the first time plaintiff had been to this store, and in fact he went there monthly to buy home improvement supplies for his personal use. Plaintiff bought 21 rolls of insulation inside the store and the cashier gave him a receipt and instructed him to bring his vehicle around to the self-service warehouse to load his purchase into his van.

Near the entrance of this warehouse, a large sign warned against customers cutting bandings, opening packages or pulling or climbing on packages, directing them instead to ask for assistance. Plaintiff did not see any employees inside the warehouse, but did understand he could ask for help if needed. Plaintiff saw that one of the stacks of insulation he purchased was not straight and was leaning to the right. He noted it seemed too high and it was “pretty obvious” that the stack was “unstable.” For this reason, he told his son to “keep an eye” on that particular stack. However, he did not seek help from store employees. Instead, he said he used extra caution in loading, which he and his son did for the next 15 minutes. During that time, neither he nor his son touched the stack. As they were loading the final bales, the leaning stack fell, knocking plaintiff to the ground and reportedly causing personal injury to his shoulder.

Plaintiff and his son immediately returned to the store and notified the front office of the injury. Two employees told the manager they heard the insulation stack fall, but that they were never asked for help.

The following year, plaintiff filed a personal injury lawsuit against the store, alleging negligence on the basis of premises liability. After discovery was completed, trial court granted summary judgment to defendant, finding the store didn’t owe a legal duty to plaintiff because the leaning stack of insulation that fell was open and obvious, and that to impose a duty would be “excessively onerous” based on the circumstances.

The appellate court affirmed, noting both plaintiff and his son observed the stack to be “obviously” leaning, and further that the risk of this would be apparent to a reasonable person.

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

Additional Resources:

Dunn v. Menard, Inc., Jan. 29, 2018, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Enforceable Florida Texting Ban Mulled by State Legislators, Jan. 21, 2018, Fort Lauderdale Personal Injury Attorney Blog

Recently, the Connecticut Supreme Court considered a house fire liability lawsuit brought by the estate representative for a mother and her three children all killed in a fire at a public housing complex. Defendants in the case were the city fire department and five city officials. Plaintiff alleged the city was negligent in its failure to inspect smoke detection equipment in decedent’s unit in compliance with the applicable fire safety regulations and codes.

Although the trial court granted summary judgment in favor of defendants, finding they were entitled to sovereign immunity, the appellate court reversed and the state supreme court affirmed, finding a jury could reasonably find defendants displayed reckless disregard for the health and safety of the public. This is the standard necessary in that state to overcome a defense of immunity against a government agency or official, which means there is a possibility defendants could be held liable. Now the case can go to trial.

Evidence presented to the state high court showed that many of the apartment residents at this site disabled their smoke detectors due to frequent false alarms set off by cooking. It was undisputed that this was common knowledge among city officials, nor was it disputed that city officials failed to conduct a mandatory inspection of the apartment unit in question in the two years prior to the fire. However, the day before the fire, officials reported they did inspect the unit and replaced one that was non-functioning and replaced a battery in the other. Hours later, a fire broke out and all four occupants of the unit were found deceased. The cause of the fire was later determined to be accidental.

Plaintiff alleges the fire officials failed to remedy the defects in the smoke detectors in the unit and knew/ should have known about (and remedied) a number of other safety defects in the unit, including the absence of a fire escape or other means of egress from the unit, as well as a lack of fire suppression (sprinkler) systems.

Most fire injury claims like this would be covered through homeowners’ insurance, though as this case shows, there may be a number of other legal avenues to explore. That’s why it’s imperative to discuss your options with an experienced Fort Lauderdale personal injury attorney. A property owner’s umbrella insurance could cover some of the costs. Further, if the fire broke out at a hotel or other commercial property, it’s possible a commercial liability policy would cover damages.

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

Additional Resources:

Williams v. Housing Authority of City of Bridgeport, Dec. 26, 2017, Connecticut Supreme Court

More Blog Entries:

Consumer Affairs Releases Top 10 Most Dangerous Toys of 2017, Nov. 29, 2017, Florida Injury Lawyer Blog

Some of the most common risks in previous years have included things like:

• Small, pointed parts;
• Projectile pieces;
• Inadequate warnings on toy labels.

Holiday shopping reportedly accounts for 65 percent of all annual toy sales, which is why our Fort Lauderdale product liability lawyers urge consumers to pay attention. That means buying toys that meet the age specifications for the child recipient and be cautious to avoid small parts in gifts intended for small children. However, manufacturers have a great responsibility too. When their product is used either as intended or in a manner that is reasonably foreseeable, yet results in an unreasonable risk of harm, they can be held accountable.

Claims are based on a theory of law known as product liability, meaning responsibility for injuries caused by products that are defectively designed, defectively manufactured or that lack adequate warnings about certain non-obvious dangers. Standards for child products are especially high because youngsters can’t be expected to be as discerning or careful about the products they are using. Defendants in product liability cases can involve anyone in the chain of distribution – from the person/ company who designed the toy to the factory that made it to the company that sold it.

These cases are often complex and require extensive expert witness testimony. However, they are often worth pursuing, particularly when a child suffers serious personal injury or, tragically, death, as a result of playing with defective toys.

The Consumer Product Safety Commission recently released its annual report on Toy-Related Deaths and Injuries for Calendar Year 2016. The regulator reported an estimated 240,000 toy-related injuries were treated at U.S. hospitals in the U.S. last year, which is about the same as it’s been for the last three years. Forty-five percent of those injuries involved head or facial trauma. Males accounted for 139,000 toy-related injuries. There were also seven toy-related deaths, mostly involving non-motorized scooters (in most cases by motor vehicle accidents), and choking due to airway obstructions caused by small parts.

WATCH reports there were 15 toy recalls since last December, meaning at least 2 million potentially dangerous, defective toys on the market. It should be noted a recall does not absolve a manufacturer or distributor from liability, though it can’t be used as proof positive of a defect in civil litigation.

Among the toys listed by Consumer Affairs as posing possible danger:

• Hallmark “Itty Bittys” stacking toys for babies. These devices were recalled in August, but are still on the market. They pose a choking hazard.
• Pull Along Polly. This toy poses a possible strangulation hazard because of its 19-inch long cord, when industry regulations specify strings on crib toys should be less than 12 inches.
• Nerf Zombie Strike Deadbolt Crossbow. The force of the arrows reportedly poses a risk of facial or eye injuries.
• Brianna Baby Doll. Removable clothing and ponytail holders are reportedly a choking hazard.

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

Additional Resources:

The 10 most dangerous toys of 2017, Nov. 22, 2017, By Sarah D. Young, Consumer Affairs

More Blog Entries:

Florida Distracted Driving Accident Risk High, Oct. 22, 2017, Fort Lauderdale Child Injury Attorney