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

Here, our Fort Lauderdale child injury attorneys details some of the more common child injuries and fatalities reported this summer and what type of situations may allow for legal recourse (compensation for medical bills, lost wages, loss of life enjoyment, pain and suffering, emotional distress and punitive damages). As always, this is not intended to be legal advice, and specific questions and concerns should be addressed in direct consultation with an experienced personal injury lawyer.

Water Safety/Drowning

Drowning in Florida is the No. 1 cause of death among children ages 1 to 4 (enough to fill three-to-four preschool classrooms every year). According to Water Smart Tots, a non-profit that raises awareness of child drowning deaths in the greater Tampa Bay area, drowning deaths in Florida were up 70 percent in February and March, compared to the same time last year. That risk is believed to have only gotten worse as an increasing number of parents are trying to juggle working from home while homeschooling older kids. Toddlers can drown in just a few inches of water, and it only takes seconds for them to slip away unnoticed and into a nearby canal, pool, lake or bathtub.

Nationally, about 1,000 kids of all ages die each year in drowning incidents, about 45 percent of those being kids ages 1 to 4.

Liability in these cases really depends on who was in charge. If a child was being supervised at someone else’s home or if the child was able to gain access to an un-gated or un-guarded pool or other body of water, it’s possible a claim could be made against one’s homeowners’ or renter’s insurance. If the child was in a daycare, camp, condominium association, etc., chances are these operations have some sort of liability insurance that may pay the claim.

Prevention is always better. Younger children and those who are not experienced swimmers should always be within an arm’s reach. Means of egress, including windows, doors and screens, should be equipped with proper locking mechanisms and alarms if necessary. Pools should be equipped with alarms, gates and other barriers. Remember that drowning is a silent catastrophe that can happen in just a few minutes. Adequate supervision around any body of water is key.

Bicycle, Scooter and ATV Injuries

It is impossible to talk about child summer safety without talking about bicycles, scooters and ATVs. Summer is already the time when these injuries are reported at all-time highs compared to the rest of the year. We don’t have any local statistics for this year yet, but anecdotal evidence suggests these types of injuries spiked this year as children sought a physical outlet and boredom buster that would also allow them to remain socially-distanced/outdoors. It is imperative that parents be vigilant about their children wearing helmets at all times. Hospitals throughout the country have been reporting an uptick in child head injuries among youthful riders.

As far as liability, it will depend heavily on the situation. For example, if an adult was supposed to be supervising and was not, that individual may be legally responsible. If the child was struck by a motor vehicle, it will be important to look carefully at what happened. Even if a child unexpectedly darted out into the street, a driver may be held liable if they were not traveling at a reasonable speed, were distracted, etc. Drivers have a responsibility to be alert and prepared for sudden emergencies just like that. In some cases, there may be grounds for a claim against the manufacturer of the bike, scooter or ATV if there is evidence it malfunctioned or was defective as designed or built.

Firearms

This isn’t a child injury risk unique to summer, but it’s imperative especially when your kids are home all day, not going to camp, not in school, etc. that firearms be properly secured and stored. It’s also a risk likely to be exacerbated by the fact that many more homes may have guns. Purchases of firearms climbed during the pandemic. Although some of these sales undoubtedly involved existing owners, some are probably new owners as well. Pediatric emergency room doctors have raised concerns about new owners in particular, the worry being that they might not be educated about gun storage. Firearms should be stored unloaded and locked in a safe or with some type of trigger lock. Keep ammunition locked up somewhere else. If a child is visiting someone else’s home, parents should ask about the presence of unsecured firearms.

If your child is injured in an accidental shooting at someone else’s home, you may have grounds to claim damages against the adults who were supervising. Such claims may be paid out by the homeowners’ insurance policy.

General Household Child Injuries

There are a number of other injuries that can occur in and around the home, with risks of poisoning, falls, dog bites and those involving appliances especially problematic. Back over injuries in driveways are problematic as well. Keep medications and cleaning solutions are out-of-reach, make sure windows and front doors are sturdy, that heavy furniture is secure and remain on alert for potential hazards.

If your child suffers serious injuries, our Fort Lauderdale child injury lawyer 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: In This Pandemic Summer, Don’t Forget About Kids’ Other Risks, Aug. 3, 2020, By Perri Klass, M.D., The New York Times

Fort Lauderdale injury attorneys will examine your premises liability claim to determine whether it’s viable and identify all potential defendants. Some of the most common hotel injury claims include:

• Parking lot injuries;
• Swimming pool accidents/drowning;
• Slip-and-fall injuries;
• Trip-and-fall injuries;
• Falls from heights;
• Food poisoning;
• Burns from fires, hot water, food or drinks;
• Elevator/escalator injuries;
• Animal attack;
• Injury caused by broken/defective furniture;
• Bed bugs/unsanitary conditions;
• Exposure to toxic chemicals;
• Playground injuries;
• Assault/battery.

Any one of these incidents can cause serious and lasting injuries and trauma. If there is evidence the hotel staff knew or should have known about the risk and failed to fix it or provide guests warning, there is a good chance a personal injury claim could be successfully made.

Defendant hotels will often argue comparative negligence (i.e., the person injured shared some or all of the blame, proportionately reducing damages) or that the claimant wasn’t as seriously injured as they said. Having an experienced personal injury attorney will be imperative.

Falls, Fires and Fights – Hotel Injuries Run the Gamut

Recently in Orange County, an 8-year-old child was rushed to the hospital after falling three stories at a hotel where the family had stopped before they planned to make their way to Disney World. The child, visiting from the United Kingdom reportedly fell out of a window and into some hedges and trees, ultimately suffering a knee injury.

The sheriff’s office stayed to investigate, and it’s not clear yet whether the family will file a claim against the hotel. It’s likely if an injury lawyer is consulted, he or she will look carefully at applicable Florida building codes for guardrails, handrails and windows in multi-unit dwellings to determine whether all statutory rules were followed.

Other recent Florida hotel injuries have included:

• A lawsuit filed by multiple guests at a Disney hotel who alleged they became ill and required multiple trips to the emergency room after they were served lettuce wraps that allegedly contained live insects. They were subsequently diagnosed with food poisoning and other injuries that “do not occur absent negligence,” according to the lawsuit. Disney denies the allegations.
• A federal lawsuit filed in Orlando, Starstone Nat’l Ins. Co.v.Polynesian Inn, LLC, one man who was seriously injured and the estate of another who was killed at a hotel sought damages from the hotel’s general liability insurer, asserting negligent security after a woman attacked them at the door of their hotel room. Although the motive isn’t fully known, the woman did take cash and other personal items from the men as she fled.
• A Central Florida woman staying at an amusement park resort was allegedly attacked by a wild bird while on a dock owned by the resort. She reportedly suffered serious injuries, including traumatic brain injury. She claims the resort was aware these birds were a threat to visitors, and failed to warn them. The hotel is fighting the claim.

In another case out of Tampa, hundreds of guests had to be evacuated due to a fire that broke out in a hotel room where a guest’s straightening iron was accidentally left on. No one was hurt.

Hotels in other states have faced lawsuits recently for a range of offenses, including inadequate security for failing to verify that a man was allowed to enter the room of a female guest (he was the guest’s estranged, abusive husband) and unsanitary conditions leading to an outbreak of Legionnaire’s Disease.

If you are injured at a Florida hotel, our personal injury lawyers in Southeast Florida will assess the circumstances to determine whether you have grounds to pursue a claim.

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

Additional Resources:

Officials: 8-year-old falls three stories at hotel, escapes with knee injury, Aug. 1, 2019, WFTV-9

There is often one big exception: If a charge is made or usually made for entering the park or a certain area or if there is any commercial or other activity that profits from patronage of the general public on the park land, then liability may become an issue.

This was reportedly the situation for an alleged personal injury at a park in Arizona. Here, the Arizona Supreme Court reversed an earlier summary judgment in a personal injury lawsuit favoring a defendant company with rights to an area of a public park where a patron fell and was injured.more

According to court records, the agreement the company had with the park went back 25 years, with so called “Picnic Island” and a nearby pinata area patrolled, inspected, prepared, groomed and maintained by the company. The company never maintained exclusive rights to the area, to which the public otherwise had access.

Plaintiff had purchased a $300 package from defendant to host her daughter’s birthday party, which included all-day rides within that area, plus a pavilion reservation. Customers were also allowed to bring a pinata if they broke it outside the fenced in area, at a tree outfitted specifically for this purpose. An employee from the company specifically raised and lowered the pinata for partygoers trying to break it.

While walking through the area where the pinata was set up, plaintiff fell in a sprinkler-head divot that was covered by grass, injuring her arm and breaking her ankle.

Plaintiff sued defendant company, alleging premises liability. Defendant asserted recreational immunity, noting that plaintiff was a recreational user of the property and that the company was immune as a “manager” of the site under the statute.

The trial court granted defendant’s motion for summary judgment and the appellate court affirmed, but the state supreme court reversed. Although the city is entitled to immunity under the statute, the private company is not, the court held.

The company had no authority to open or close the area for recreational use purposes. It’s true that it patrolled, maintained, inspected, prepared and groomed the area, but the relationship with the city didn’t confer managerial status to the company that would entitle it to the same immunity the city enjoys under the recreational use statute. It merely maintains the pinata area and pays the city a fee. Thus, the company is an independent contractor (as opposed to a licensee or lessee). Plus, the company collects a payment for its services; it’s not opening this section of land (which it doesn’t have authority to do anyway) for free to the public.

The bottom line for park-goers in Florida is that despite the recreational use statute, there may be situations in which you are entitled to collect personal injury damages from areas that are otherwise free and open to the public for recreational purposes.

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

Additional Resources:

Normandin v. Encanto Adventures, LLC, May 17, 2019, Arizona Supreme Court

More Blog Entries:

Helmeted Cyclists Still Suffer Injury in Fort Lauderdale Bicycle Accident, April 18, 2019, Fort Lauderdale Personal Injury Attorney Blog

Recently, The Lincoln Journal Star in Nebraska reported a 2-year-old boy died on a recent afternoon when a strong gust of wind blew over the unenclosed inflatable bounce pillow on which he was playing at a pumpkin patch. The boy and his older sister, 5, were at a private event, playing on the pillow with their parents, who both slid off seconds before the gust of wind swept the pillow up, despite being tethered to the ground. The wind gust reportedly clocked in at around 60 mph. The pillow was ripped of its moorings and flew some 30 to 40 feet. The girl was thrown, but the boy reportedly became “wrapped like a taco” inside the inflatable.

The newspaper reported the pumpkin patch owner does carry the requisite liability insurance required of such operations. Such a claim would fall under the umbrella of premises liability, which holds property owners or controllers responsible for dangerous conditions on their property. Our Fort Lauderdale injury lawyers explain that while the number of defendants will be case specific, it’s plausible the child’s parents may have grounds to pursue claims also against the inflatable pillow manufacturer, as well as the event organizer, if a different entity than the pumpkin patch.more

This is not a brand new problem, sadly. The Consumer Product Safety Commission reports that between 2003 and 2013, more than 113,000 children were treated in hospital emergency rooms for injuries while using inflatable amusements.

Nearly half of these incidents occur in a commercial (non-home) environment, while another 21 percent occurred in a residential setting. In 33 percent of cases, the location designation wasn’t indicated. Of those children injured, 88 percent were under 15 and 60 percent were between the ages of 5 and 14.

Injury breakdown was as follows:

Leg/ Foot – 34 percent

Arm/ Hand – 32 percent

• Head/ Face – 15 percent
• Other – 12 percent
• Torso – 7 percent
• Types of injuries were pretty evenly split among:
• Fractures – 28 percent
• Sprains/ Strains/ Dislocation – 27 percent
• Contusion/ Abrasion/ Laceration – 23 percent
• Other/ Not Stated – 22 percent

During that 10-year time frame, a total of 12 children lost their lives on inflatable attractions.

There have been numerous other recent child injury cases involving these inflatables reported across the country just in the last year.

In April, at a church carnival in South Carolina, five children where inside a bounce house when a gust of wind swept by, carrying the bounce house – and the children inside – some 30 feet in the air. All of the children were injured, two seriously, after falling out while the bounce house was airborne, according to The Washington Post.

The very next month in Southern California, The Washington Post reported a “near tragedy” when a bounce house set up at a residence blew over a highway with a 9-year-old inside. The child fell out and hit a car – but miraculously, survived.

Because these incidents can result in such serious child injury and wrongful death, it’s important for parents of those hurt to seek out experienced legal counsel.

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

Additional Resource:

2-year-old who died after bounce pillow incident was ‘adored by all’, Oct. 5, 2018 By Riley Johnson, Lincoln Journal Star

More Blog Entries:

Florida Scooter Accident Risk Higher Amid Booming Rental Business, Sept. 5, 2018, Fort Lauderdale Child Injury Lawyer Bog

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

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

These cases are not unheard of, and in fact, are quite common. (If you think about it, as a passenger, with whom are you most likely to be riding? Not a stranger, but probably someone who is or once was close to you.) In a recent motorcycle accident case in New Jersey, the ex-girlfriend of a state assemblyman filed a lawsuit against him, alleging his negligence in exceeding the speed limit resulted in his losing control of the motorcycle when the pair approached stopped traffic ahead. Defendant told the local Daily Journal newspaper that allegation was untrue because there had been no citation issued. (This is not exactly true, however, because an investigating officer’s decision to cite or not for a traffic violation is not the final word on whether someone was negligent in a personal injury lawsuit; that call is made by the court.) Cases involving exes may be a bit more adversarial than others, but nonetheless generally do not involve plaintiff seeking direct compensation from defendant.

The reason defendants are named is because plaintiffs can’t directly sue insurers. They must file a claim for damages against the person who is actually negligent, and then obtain compensation from the entity required to indemnify/ cover those losses on behalf of the defendant.

Florida motorcycle crash cases are a bit unique for the fact that unlike operators of passenger cars, motorcyclists are not required under Florida’s no-fault auto insurance law to purchase personal injury protection (PIP) benefits (though it is strongly recommended). This would typically provide up to $10,000 in coverage for medical bills and wage loss, after which one who meets the serious injury threshold required to step outside the no-fault system could then seek bodily injury liability coverage from defendant’s insurer. PIP usually extends not just to the insured, but any resident relatives (related by blood or marriage), passengers at the time of the crash and non-occupants, such as bicyclists and pedestrians. However, motorcycle operators, even those who have PIP benefits on another owned vehicle, are specifically excluded from PIP coverage bylaw.

Passengers though may have still several options for obtaining compensation for serious injuries. Fort Lauderdale motorcycle accident lawyers know each case will be different, but in general, such compensation may include:

Your own health insurance. This should cover reasonable, necessary medical expenses you incur as a result of the crash.

• Passenger’s own PIP coverage or MedPay. If you personally have a PIP policy or MedPay coverage or are covered by one under your resident relative’s policy, you may still be able to attain PIP that way. You wouldn’t need to prove any motorist was negligent.
• Motorcyclist’s bodily injury liability / guest passenger liability coverage. This can be obtained if you can prove the motorcyclist was at-fault. Minimum rates are $20,000 per individual and up to $40,000 per crash (though one can and really should purchase higher limits).
• Other driver’s bodily injury liability coverage, if the other driver was at-fault. (You can also pursue claims against both the motorcyclist and the other driver, if there is evidence more than one is to blame).
• Either driver’s umbrella insurance coverage, if available.
• Claims against the manufacturer/ distributor or repair shop of motorcycle, if evidence the motorcycle was defective or flawed repair that contributed to the crash.
• Your own uninsured/ underinsured (UM/UIM) coverage, which extends coverage in the event you are injured as a result of negligence by a driver/ motorcyclist who fled the scene (hit-and-run), was not insured or lacked adequate insurance to cover your injuries.

Finally, you shouldn’t worry too much either about whether a successful claim of negligence will increase the rider’s insurance premium. Keep in mind though, if the person operating a motorcycle was partly or wholly responsible for the crash, his or her insurance rates are going to spike whether you pursue a claim or not.

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

Additional Resources:

Florida Motorcycle Handbook, 2013, HSMV

More Blog Entries:

$19M Award For Railroad Car Accident Death Affirmed, June 29, 2018, Broward Motorcycle Accident 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

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

Although undoubtedly one could find fault on the part of the motor vehicle driver who left the roadway and smashed into the building, Broward injury lawyers know it’s imperative to explore every angle and identify all possible defendants. This is for two reasons:

• Ultimately maximizing the pool of insurance money available to plaintiffs, for a better chance of recovering full compensation;
• Eliminating the chances a court may find a non-party was partially liable (as you can’t recover from defendants whom you haven’t named in the claim).

In this case, plaintiffs allege the daycare should be held liable for the children’s injuries because they failed to put in place proper barriers around the school to prevent such incidents. The parking lot was angled heading into the building, making such a collision more likely. Additionally, plaintiffs cited several other accidents at out-of-state facilities (in Washington state and New Jersey) owned by this same chain wherein the same kind of accidents occurred. This fact, plaintiffs allege, make these accidents foreseeable.more

Plaintiffs allege the company had a special relationship to the children (which is a legal term, meaning it creates a duty of care) which made them responsible to take reasonable steps to keep these young kids safe from danger – specifically safe from a rouge vehicle crashing into a building.

Although it might seem as if a collision into the side of a building is an extremely random incident, history paints another picture. As noted by the Storefront Safety Council, vehicles crash into buildings at least 60 times in the U.S. daily, resulting in 4,000 injuries and an estimated 500 deaths a year. The breakdown of these building smash-ins goes like this:

• 24 percent – Retail stores
• 23 percent – Commercial buildings
• 19 percent – Restaurant
• 7 percent – Convenience store
• 7 percent – Office

Of course, as this case shows, these incidents are limited to these type of buildings. Hospitals, homes, gas stations – all have been struck by vehicles at some point or another. As our Broward injury attorneys can explain, it is precisely because these incidents are so prevalent that those who own and operate these buildings should be aware of the possibility and take reasonable precautions to prevent the foreseeable risk of injury or death to innocent customers, employees or those in their care.

Nearly one third of drivers in these cases (from 2014 to 2017) are under the age of 30. (The driver in this particular incident was 32.) Another 33 percent are drivers over the age of 70.

In terms of cause, the council reports:

• 30 percent – operator error
• 26 percent – pedal error
• 17 percent – DUI
• 11 percent – traffic accident
• 8 percent – medical emergency
• 7 percent – other

There are some places for which buffers are required, either as part of a corporate policy or industry best practice, or because in some cases, local regulations are requiring it. For example, Miami-Dade County approved a barrier law in 2012, after the death of a woman who was seven-months pregnant when she was struck by a vehicle as she sat on a bench in front of a store at a shopping center. Orange County has explored this option too, after this particular incident.

Barriers are known to be a relatively simple way to prevent these incidents from becoming tragic, and they can also help businesses drive down repair costs too.

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

Additional Resources:

Families sue day care in accident that killed girl, March 30, 2018, By David Harris, Orlando Sentinel

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Florida Senate Brake-Checks Texting-and-Driving Bill, March 15, 2018, Broward 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

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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.

more

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

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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

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