The broad definition of negligent security is a form of premises liability by which an individual who is injured by the criminal action of a third party can hold legally liable the owner or tenant of a property where the injury was inflicted. Typically, such injuries arise out of cases of robbery, rape, assault, or battery.

This is not to say there’s a potential civil claim for every criminal action. The question is whether you had a right to expect some degree of safety where the attack occurred – whether that was at a shopping mall or an office complex or an entertainment venue or a hotel. The people who own and control these properties are expected to have a basic understanding of the possible safety risks posed to their customers, and to take reasonable action to secure the premises and protect these individuals – particularly when (as in the case of the hotel) those individuals are paying customers.

As a Fort Lauderdale injury lawyer can tell you, prevailing on a claim of negligent security against a hotel requires proof that the crime could have been prevented – or at least made less likely – if the hotel owner or manager had used appropriate security measures. If the lapse in security happened due to the mistake of an employee, the hotel owner/employer can still be held liable under a legal doctrine known as respondeat superior, Latin for “let the master answer.”

Examples of Negligent Security at a Florida Hotel

There are many different scenarios in which an injured Florida tourist could sue a hotel for negligent security.more

Some examples include:

• A guest is assaulted in the parking lot of the hotel, where there is poor lighting and no security personnel.
• A guest is sexually assaulted in their room by an assailant who gained entry due to insufficient locks, lack of security personnel, or with access gained through employment they never should landed due to a violent criminal record.
• A guest is injured at the hotel due to a large event where crowd control measures were inadequate.

This is far from an exhaustive list.

Essentially what we need to show is that the person who owned or controlled the property failed to use a reasonable degree of care in failing to protect guests against reasonably foreseeable criminal attacks. An attack is generally considered reasonably foreseeable if it occurs with regularity at that type of property absent security measures OR if it is known to have happened at that specific property or the neighborhood nearby – especially recently. We must also show the hotel knew or should have known of this risk and failed to adequately warn guests. If a guest is injured because of this breach of duty, the property owner/hotel can be liable to cover the cost of those injuries.

If you were a tourist at a South Florida hotel and were injured in a criminal attack while visiting, contact our offices for a free consultation to discuss whether you’ve got a case.

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

Additional Resources:

Negligent or Inadequate Security Leading to Premises Liability Lawsuits, Justia

More Blog Entries:

“Do I Have a Personal Injury Case?” Broward Injury Lawyer Offers Insight, Oct. 10, 2023, Fort Lauderdale Personal Injury Lawyer Blog

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

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

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

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

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

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

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

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

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

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

In short, the 3rd DCA held yes, they could – or at least part of it.

It comes down to whether the duties a defendant owed to the plaintiff were non-delegable, meaning they can’t be pawned off on another person or entity by contract.

What is joint and several liability?

Joint and several liability is a legal doctrine that allows those who have been injured by another’s negligence to fully recover those damages where full recovery might otherwise be unavailable. Typically, everyone in a Florida injury case is responsible for his or her own portion of damages. That means if there are three defendants, each deemed 33 percent responsible, each should only have to pay their own 33 percent share of the plaintiff’s total damages. But sometimes, at-fault parties don’t have the means to cover damages. Joint and several liability allows a plaintiff to hold one defendant responsible to cover another’s share of the damages.

However, as our Fort Lauderdale injury lawyers can explain, the Florida legislature abolished joint and several liability in Florida in 2006. The push to do so began at least in part with the 1987 Florida Supreme Court ruling in Walt Disney World v. Wood. In that case, plaintiff was injured at a grand prix attraction at the park when her fiance rammed from the rear the vehicle she’d been driving. She filed a lawsuit against Disney, which in turn sought contribution from the fiance. Jurors determined plaintiff was 14 percent comparatively at-fault, her fiance was 85 percent at-fault and Disney was 1 percent at-fault. Her total damages were assessed at $75,000. The court ruled that because of the doctrine of joint and several liability, Disney could be responsible for 86 percent of the damages. Disney appealed, but the verdict was affirmed.

The Florida statute on joint and several liability has been modified numerous times. Today, for the most part, a defendant who is liable is only going to pay his or her own portion of damages. But there are sometimes exceptions. This is what we saw recently in the case of Walters v. Beach Club Villas Condominium, Inc.

Joint Liability in Florida Premises Liability Lawsuit

In the Walters case, plaintiff attended a party hosted by friends who were owners of a beach condo. The portion of the boat dock directly behind her friends’ home was in good condition, but an adjacent portion was not. Plaintiff ended up stepping on a defective portion of the dock, falling and becoming seriously injured.

She sued the property owners, the condo complex and the repair company for premises liability.

In general, property owners/occupiers owe invitees the duty of using reasonable care in maintaining the property in reasonably safe condition and to warn of latent/concealed dangers that are or should be known to the owner that aren’t known to the invitee or cannot be discovered just by exercising due care. These duties are “non-delegable,” meaning one who owes such a duty can’t absolve themselves of it by contracting it out to another party. The condo complex’s duty went even further per the club’s own internal declarations, which adopted significant portions of the Florida Condominium Act, requiring (in part) that condo associations keep up common areas – and the dock was specifically listed as a common area. That declaration, the trial court held, imposed an additional duty on the condo complex – one that couldn’t be delegated out to any other party.

The condo complex argued the fault was on the party hosts for failing to warn plaintiff of the unsafe condition of the dock, contributing to her fall and personal injuries. The dock repair company alleged comparative fault, as well as third parties.

Jurors returned a verdict in plaintiff’s favor, finding the beach club 15 percent liable, the dock repair company 25 percent liable and the party hosts 50 percent liable. She herself was deemed 10 percent at-fault. The court, however, declined to impose joint and several liability on the condo complex.

The appellate court reversed with respect to the contractor, but not the party hosts. The court cited several instances of case law wherein the a property owner can be held jointly and severally liable for the negligence attributed to a contractor when the property owner owes a non-delegable duty of care to the plaintiff – even if the contractor was deemed partially or wholly at-fault.

The fact that the condo owner hired a contractor to repair the dock didn’t negate its own nondelegable duty to keep the property in reasonably good condition. Thus, they could be held jointly and severally liable for the contractor’s portion of damages. However, the condo owner would not be liable for the hosts’ portion because they owed a separate duty to warn plaintiff of the possible danger. That makes the condo complex owner and the party hosts joint tortfeasors, but the condo complex couldn’t be held liable for their damages.

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

Additional Resources:

Walters v. Beach Club Villas Condominium, Inc., Feb. 26, 2020, Florida’s Third District Court of Appeal

More Blog Entries:

When Do I Need a Fort Lauderdale Injury Lawyer? June 15, 2020, Fort Lauderdale Injury Lawyer Blog

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

However, as noted in the 1952 Florida Supreme Court case of Earley v. Morrison Cafeteria Co. of Orlando, the business may assume that invitees will perceive conditions that are obvious upon the ordinary use of his or her own senses. Restated another way, there is no duty by the business to warn patrons of open and obvious conditions. So a business needs to warn about concealed dangers that are known or should be known to the owner and are unknown to the patron and can’t be discovered through the exercise of due care. The business also needs to use ordinary care in maintaining its property in reasonably safe condition.

These standards were all reviewed in a recent case before Florida’s 1st District Court of Appeal, which considered the open and obvious doctrine defense in a trip-and-fall injury lawsuit against a Bay County grocery store. Before the court was a request to consider whether summary judgment in favor of defendant was appropriate when the injured man observed the dangerous condition, but failed to step around the obstacle.

Plaintiff in this case went to the grocery store to make a purchase and also to gather some empty boxes. In the course of this errand, he made four trips in and out of the business. The first time in, he made his purchase and took those items to his vehicle. He then made three additional trips to gather empty boxes and take them back to his vehicle.

At the same time, an employee of a beer supplier was delivering a shipment of beer. The product was stacked on a pallet between the store’s entrance/ exit doors. On the third trip leaving the store, plaintiff said he saw the pallet, but tripped over it, causing him to suffer personal injury.

Plaintiff later filed a trip-and-fall injury lawsuit against the grocery store for being negligent in failing to warn of the dangerous condition and for not ensuring the sidewalk was safe to cross.

During the deposition phase, plaintiff stated he didn’t see the empty pallet until his last trip. Further, he alleged it wasn’t actually the pallet he’d tripped on, but rather several prongs that were sticking out from underneath the pallet.

Defendant filed a motion for summary judgement, which the trial court granted. The court ruled the condition was so open and obvious and ordinary that as a matter of law, it was not inherently dangerous. That meant defendant could not be liable.

On appeal, plaintiff argued the trial court erred in reaching this conclusion.

However, the appellate panel noted plaintiff admitted that he saw the empty pallet, took several steps and then tripped over it. The surveillance video of the incident reportedly refuted the allegation that he’d tripped over the prongs, rather than the pallet itself. Further, plaintiff had changed his course to avoid the pallet the first three times he walked past it. Thus, the condition was open and obvious and plaintiff’s injuries were not compensable.

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

Additional Resources:

Brookie v. Winn-Dixie Stores Inc., April 4, 2017, Florida’s First District Court of Appeal

More Blog Entries:

Property Owner Liability for Dangerous Road Conditions, March 7, 2017, Broward Premises Liability Attorney Blog

But in order to avoid liability, particularly after an accident that resulted in serious injury or death, a company may try to assert “employer” status, which would grant immunity from a personal injury or wrongful death lawsuit. One way this might be asserted is via the Borrowed Servant Doctrine. This is more common following accidents on construction sites, where it is not uncommon for one employer to “loan” employees to another temporarily.

It’s common for a construction site subcontractor to loan out workers to another to ensure a particular job gets completed. If that “loaned” worker is hurt on the job, the question becomes: Which employer is entitled to workers’ compensation immunity? Unfortunately in some cases, the answer could be: Both.more

The common law borrowed servant doctrine allows one employer to loan its employee to another temporary employer. That temporary employer is called a “special employer.” There is a presumption that while an employee is “loaned,” employment with the general employer is retained. However, this presumption can be overcome if the special employer can show:

• There was an express or implied contract for hire between employee and special employer;
• Work done at the time of injury essentially was that of special employer;
• Power to control details of the work were held by special employer.

Where all of these criteria are met, both employers would have the right to assert workers’ compensation exclusivity.

Each state may have a slightly varying handle on the issue, but the Washington Supreme Court recently weighed one of these cases citing the borrowed servant doctrine after a worker fell 50 feet through an open hatch onto a concrete floor.

Plaintiff was working to help dismantle a nuclear facility at a federal site that closed down operations in the late 1980s.

There was a prime contractor involved in the cleanup, but there were a host of temporary workers acquired through various providers. Plaintiff was a permanent employee of the prime contractor and defendant was hired as an independent contractor.

The accident happened in July 2009, when plaintiff was among those working on a catwalk, preparing the building for demolition. During the building inspection, the independent contractor failed to realize the catwalk lacked protective chain guards. While plaintiff was still on the catwalk, some 50 feet in the air, other workers climbed down and left a hatch open, expecting the others would soon follow. However, before plaintiff was completing another task and didn’t realize the hatch was open. He stepped through it and fell.

Although he survived, he sustained serious injuries to his spine and leg.

Plaintiff sued the independent contractor alleging the company was negligent in developing the work package and safety protocols, ultimately leading to his injury.

At trial, independent contractor asserted the borrowed servant doctrine defense, and requested a jury instruction on it, which was granted.

Pursuant to these instructions, if jurors found plaintiff’s employer had exclusive control over the site, it therefore had control over the contractor’s negligent actions and only the employer could be found liable. This would mean plaintiff’s sole remedy would be workers’ compensation.

Unfortunately for plaintiff, this was exactly what the jury decided.

Both the Court of Appeals and the Washington Supreme Court affirmed. Both courts held the application of the borrowed servant doctrine was a question of factors for jurors, and the trial court did not err in giving the instruction.

The case is further illustration of how complex construction accident lawsuits can be, and the importance of hiring an experienced injury lawyer.

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

Additional Resources:

Wilcox v. Basehore, Feb. 9, 2017, Washington State Supreme Court

More Blog Entries:

Miami Judge Forges Ahead With Air Bag Cases After Takata Pleads Guilty, March 2, 2017, Fort Lauderdale Personal Injury Attorney Blog

They were there to pick up some overtime, and the chance to work together made it not feel so much like work. Both men were saving up for family vacations to Europe, so they had been together a lot lately on those extra shifts.

But something happened. Investigators are still trying to piece together exactly what it was, but they do know it was about 8:15 a.m. and it was extremely foggy. The pair were on a dirt road near U.S. 27. The vehicle overturned. The truck rolled into a nearby canal. It was nearly an hour before rescue crews responded to the scene, where someone had called to report a vehicle upside down in the canal. The men were both pulled from the truck, where they were pronounced dead at the scene.

In this tragic situation, families are no doubt grappling with not only the emotional upending, but also the financial losses. These were two men who clearly worked very hard to provide for their families, and to suddenly lose that financial stability can be terrifying – especially if there are children involved. Here, both men were married and one left behind two small children, a daughter, age 3, and a son, age 1.

In this case, there may be some options for recovery our Fort Lauderdale wrongful death attorney would recommend are worth exploring.

The first is workers’ compensation death benefits. Based on the facts provided in the media, these men were on the job at the time they died. Florida Statute Chapter 440 provides information on all the exact details, but essentially, state law allows spouses, minor children and other certain dependents to collect a maximum of $150,000 total. That includes funeral expenses, wage loss compensation and educational benefits to the surviving spouse.

Beyond that, it may be beneficial for the surviving families to explore whether there was any defect in the road that might result in liability on the part of the entity responsible for maintenance. Similarly, any defect in the vehicle might be grounds for action against the manufacturer of the vehicle.

Workers’ compensation laws prohibit workers (or their dependents) from taking further legal action against the employer.

According to investigators, there was a National Weather Service advisory in the area for dense fog. That type of warning means visibility would have been less than a quarter mile.

The surviving spouses of the men, speaking to The Sun Sentinel, said they were both very safety conscious. They were puzzled by how this could occur.

Fogs in Florida can be a serious road hazard for any driver, no matter how careful. It can result in severely-reduced visibility.

If you encounter heavy smoke or fog on Florida’s highways:

• Slow down.
• Use windshield wipers.
• Turn on the low-beam headlights.
• If it becomes so thick that you can’t see, pull over, all the way off the pavement and engage your emergency flashing lights. Make sure you are far enough away from the road to safely exit the vehicle without blocking traffic.

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

Additional Resources:

FPL linemen from Sunrise, Parkland killed in crash near South Bay were good friends, Jan. 19, 2016, By Mike Clary, Sun Sentinel

More Blog Entries:

Fort Lauderdale Aims High With Vision Zero, Jan. 12, 2016, Fort Lauderdale Wrongful Death Lawyer Blog