Courts in Florida have held that defendants in wrongful death lawsuits can invoke their Fifth Amendment right during the civil litigation process if compelling that testimony could potentially amount to self-incrimination in the pending criminal case. However, as noted in the 1976 U.S. Supreme Court decision in Baxter v. Palmgiano, the Fifth Amendment doesn’t guarantee negative inferences against a defendant in a civil lawsuit when they refuse to answer pertinent questions regarding the evidence against them. This doesn’t mean the judge or jury in the civil DUI injury lawsuit can simply point to defendant’s refusal to answer questions and declare that alone as basis for a decision in plaintiff’s favor. However, the court is entitled to draw inferences against a defendant who chooses to invoke the Fifth Amendment right to silence. In U.S. ex rel. Bilokumsky v. Tod in 1923, the U.S. Supreme Court ruled that, “silence is often evidence of the most persuasive character.”

Fort Lauderdale DUI injury lawyers can use this to their advantage in drunk driving civil litigation. How Long Does a DUI Injury Defendant’s Right to “Plead the Fifth” Last?

The supreme court in Alaska recently dealt with this issue in the case of Graham v. Durr. In that case, defendant struck and killed two pedestrians after losing control of his vehicle. He was arrested two counts each of second-degree murder and manslaughter and one count DUI.

Months later, the families of those pedestrians filed DUI wrongful death lawsuits against both the driver and his employer. Defendant refused to respond to a portion of plaintiff’s complaint, asserting his Fifth Amendment right to remain silent. Soon thereafter in the criminal case, he pleaded guilty to the second-degree murder charges in a negotiated plea deal with prosecutors. He then did provide the civil lawsuit plaintiffs with initial disclosures, but still refused to provide the factual basis of his defense or the identity of those possibly responsible, again invoking the 5th Amendment. He was sentenced in the criminal lawsuit and, as plaintiff would later point out, participated in an interview with a probation officer wherein he admitted he caused the crash, submitted oral and written statements in that presentence report and expressed remorse at his sentencing hearing. He was sentenced to 32 years in prison.

A few months later, defendant filed a notice of appeal in the criminal case, arguing the judge made several evidentiary mistakes and his sentence was excessive. He requested his sentence be vacated and the matter remanded for resentencing. Around this time, plaintiffs sent a list of questions they wanted answered for the civil case discovery process. Defendant refused, citing his pending appeal and Fifth Amendment privilege. His attorney asked plaintiffs whether they would prefer to proceed with the deposition of defendant – knowing he would not answer key questions – or postpone it until the criminal case had played out entirely. That deposition didn’t happen.

Another discovery request sent by another plaintiff was again rejected on the basis of the 5th Amendment. That plaintiff moved to compel defendant to participate in discovery and refuse his privilege against self-incrimination as an excuse not to answer key questions. Plaintiffs argued that, No. 1, plaintiff wasn’t appealing a finding of guilt in the criminal case, only the sentencing. They noted that in Alaska, a defendant who is resentenced cannot receive a sentence that is more than the original. They argued defendant waived his right to plead the Fifth when he made statements of guilt at the sentencing hearing, and that even if he did retain his Fifth Amendment privilege, he should be compelled to testify anyway because there was no risk he’d be placing himself at greater risk in the criminal case appeal. Defendant argued he retained his Fifth Amendment right until his appeals were exhausted and he’d had a chance to seek all post-conviction relief.

The Alaska Supreme Court sided with defendant, at least with regard to retaining his right to silence until the appeals process was over. It declined to make a decision with regard to whether he was entitled to it until he had explored all post-conviction relief avenues, saying that issue wasn’t ripe.

Although this ruling has no direct impact on Florida DUI injury lawsuits, it is quite possible that if and when confronted with a similar conflict, the supreme court in Florida will look to the precedent set by sister courts in other states.

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

Additional Resources:

Graham v. Durr, Oct. 26, 2018, Alaska Supreme Court

More Blog Entries:

Appeals Court Backs Florida Injury Lawsuit Plaintiff, Ruling General Negligence, Not Medical Malpractice, Oct. 30, 2018, Fort Lauderdale DUI Injury Lawyer Blog

This is what is being alleged in a wrongful death lawsuit in Ohio, where a woman and her two daughters were gunned down by her husband at a Cracker Barrel restaurant after a heated confrontation that ensued when she told him she was leaving him. The family had gone to the restaurant for a birthday dinner with their two 10-year-old girls when the events took a turn. The husband reportedly threatened to, “kill them all,” shouted an expletive while paying for the bill, accidentally dropped several shotgun shells from his pocket. According to the wrongful death lawsuit, filed by the woman’s brother, the girls’ uncle, the mother called a friend and the police and begged the manger to allow her and her daughters to hide in the restaurant’s walk-in cooler. The manager allegedly refused the request, telling her the restaurant doesn’t get involved in domestic disputes.

Her husband returned with a shotgun and killed her and her two daughters, who were hiding in the restroom. Police then shot and killed the gunman. An attorney for plaintiff alleges the woman and her daughters were left to take care of themselves in a dangerous situation. He cited the protocol that many chain restaurants and retail facilities have to deal with violent or active shooter situations, and argued that such incidents, while terrifying, are in fact foreseeable.

A judge recently denied a defense motion for summary judgement, which means the case is now slated for trial in March, if it isn’t settled first.

According to guidelines produced by the National Retail Federation, most of the time when shots are fired, the motive or cause may not be determined for hours, days or even weeks. That’s why the protocols in place serve to assist restaurants and other businesses responding to situations of shots fired in robberies, workplace violence incidents, civil unrest or other shooting incidents.

Part of appropriately responding to active shooter situations is preparing for it. That means formulating clear step-by-step after gathering input from human resources, facilities, operations, safety and training departments as well as local law enforcement and other emergency responders. The NRF notes that this includes “coordinating a hide out/ shelter in place/ escape plans.” These would be things like:

• Identifying a potential hide-out/ shelter in place location that are safe within the facility.
• Designate an evacuation meeting location and inform all employees about that, as well as at least two evacuation routes.
• Train employees to encourage customers to follow them to the evacuation area.
• Train workers not to leave the safe place until instructed to do so by law enforcement.

The NRF goes on to indicate that while a shooting incident isn’t what businesses or customers or employees expect when they go to work or are enjoying a meal or shopping, but there is historical precedent to indicate that these are situations for which businesses need to prepare. Instinctively, most people panic in this kind of situation. But when managers and employees are trained on the basics of crisis management, it can make a huge difference and potentially save lives. Active shooter situations aren’t necessarily preventable in every case, but losses can be minimized by following pre-set response guidelines.

Wrongful death lawsuits may be explored in cases where businesses failed to develop or follow certain crisis responses to emergency situations.

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

Additional Resources:

Lawsuit against Cracker Barrel in 2012 domestic shooting can go forward, judge rules, Dec. 30, 2016, By Cory Shaffer, Cleveland.com

More Blog Entries:

Family Awarded $26M for Teen’s Wrongful Death on Tour Bus, Dec. 26, 2016, Fort Lauderdale Wrongful Death Lawyer Blog

All this makes the latest report from TRIP all the more troubling. TRIP is a national research group based in D.C. The latest study opines a $740 billion backlog in infrastructure spending in order fr our nation’s roads, bridges and highways to be safe. Researchers further noted that the deterioration of roads is going to happen even faster as the rate of vehicle travel continues pick up and local and state governments find themselves coming up short to fully fund needed maintenance and repairs.

The shortfall was tallied by an analysis of data complied by the American Association of State Highway and Transportation Officials (AASHTO), as well as state and federal bridge and road condition information.

In Florida, the Department of Transportation reports 17 percent of the state’s bridges are either structurally deficient or functionally obsolete. That’s 2,044 out of 12,070. Further, the percentage of roads that are in either poor or mediocre condition is 26 percent. To fix this issue, it would cost $1.8 billion – or about $128 per driver. But of course, there are some vehicles that contribute more to this damage than others. Commercial carriers are one of those, which is why there has been calls for the industry to pay a higher tax for tolls or other taxation measures intended to beef up government transportation coffers.

Vehicle travel in the U.S. has increased 15 percent between 2000 and 2015. During that same time, travel by commercial trucks spiked by more than 25 percent. Between now and 2030, it’s expected heavy truck travel with increase an additional 75 percent.

The fact that traffic levels are increasing, it’s imperative that we find a way to keep our roads in good repair. Information from AASHTO indicates we need to be spending nearly 40 percent more on our roads – from $88 billion up to $120 billion – in order to keep the roads in bridges in good shape. The problem is that so far, our spending on infrastructure isn’t keeping pace with how many miles are being traveled on these roads.

Poor road conditions not only increase the chances of a truck accident or other type of collision, they result in damage to individual vehicles and we all end up spending more in gas.

The federal Fixing America’s Surface Transportation ACT (the FAST Act) offers approximately $305 billion in transportation funding over the course of five years. However, that money still doesn’t offer a steady, long-term source of revenue for what is going to be an ongoing problem.

When bad roads lead to accidents, there may be an option to seek damages from the government agency responsible for maintenance and repair. However, these cases are complex and involve overcoming sovereign immunity defenses, as well as proving the entity knew about the damage or reasonably should have known about it and failed to address it.

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

Additional Resources:

U.S. has a $740 Billion Backlog of Roads and Bridges Repairs, Nov. 9, 2016, By Clarissa Hawes, Trucks.com

More Blog Entries:

Tour Bus Crash Kills 13, Injures Dozens More, Nov. 3, 2016, Fort Lauderdale Truck Accident Lawyer Blog

Last year, according to the Florida Fish & Wildlife Conservation Commission (FWC) there were 737 reported boating accidents, resulting in 55 deaths and 438 injuries. Miami-Dade County had the highest number of accidents and injuries (96 total accidents and 74 injuries and 3 fatalities), while May was the month with the most accidents overall (92). Alcohol or drug use was reported to have played a role in 19 percent of all fatal Florida boating accidents.

A pair of bills proposed during the 2015 state legislative session would have aligned BUI (boating under the influence) with those of DUI (driving under the influence). As it now stands, both first- and second-time offenders of both crimes face the same amount in fines and jail time. However, DUI repercussions are lot more severe than those received for BUI. For example, BUI does not affect a person’s driving record. What’s more, BUI convictions are not considered to be “prior convictions” in future DUI cases. Additionally, BUI convictions aren’t reported to the Florida Department of Highway Safety and Motor Vehicles. To treat these two offenses the same, said state Rep. Gayle Harrell, sponsor of one measure, “just made a lot of sense.” more

Unfortunately, she wasn’t able to sell her colleagues on it and the bills died out in committee. The opposition feared that such legislation could open the doors for boaters to be required to obtain boating licenses, a constitutional issue that bill sponsors say was not a valid concern. No new proposal has been made. Our Fort Lauderdale boat injury lawyers believe it may be time to revisit this.

The Palm Beach Post recently delved into this very issue, spotlighting a pervasive problem in Florida, which has more boating accident injuries and fatalities than any other state. Reporters cited one case of a man who drank too many Long Island Iced Teas and then piloted his yacht, perhaps aptly named, “Time Out” onto a beach – yards from multi-million dollar homes. He was later cited for BUI when his breath-alcohol limit was measured at 0.164 – more than twice the legal limit of 0.08.

Although that seems like a clear-cut case, enforcement of BUI in Florida can be tricky and raise a number of complex legal issues. For instance, unlike trucks and cars, boats don’t have airbags, seat belts, brakes or other safety restraints. Neither do they travel on defined pathways. They are often susceptible to the waves and currents. There is no defined street and there often isn’t adequate lighting. There is also no certification needed for driving a boat the way there is for a motor vehicle – even though the consequences for inexperience are much the same. Boaters in Florida are supposed to complete a course and get a boating education card. Yet the number of boating safety ID cards numbered fewer than half the number of registered recreational vessels last year.

Florida’s 737 boating accidents last year is a significant spike from the 634 reported a year earlier, but right on par with the 736 reported in 2013. The number of registered vessels, meanwhile, shot up from 897,000 in 2013 to 915,000 in 2015.

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

Additional Resources:

Should boating under the influence be treated the same as DUI? Sept. 30, 2016, By Kristina Webb, Palm Beach Post

More Blog Entries:

$7M Motorcycle Accident Lawsuit Filed by Widow Against Driver, Car Owner, Bar, Oct. 23, 2016, Fort Lauderdale Wrongful Death Lawyer Blog