An example of this was seen recently in the $8.2 million Florida wrongful death lawsuit against a bridge operation company facing allegations of negligence in the death of a 79-year-old West Palm Beach bicyclist who died after plummeting from a bridge that was abruptly raised while she was in the midst of crossing it. She’d been just 10 feet away from the edge of the bridge when she fell to her death in the gap. The bridge tender at the time of the incident has been arrested and faces a single count of manslaughter by culpable negligence. (She told investigators she had gone outside to visually check that the bridge was clear before raising it, but video evidence and other testimony have thus far contradicted this, according to local news sources.)

Meanwhile, the decedent’s family filed a Florida wrongful death lawsuit against the bridge tender’s employer, a company called Florida Drawbridges, Inc. Plaintiffs in this case not only sought monetary damages for their lawsuit, but also industry-accepted safety changes to ensure something like this doesn’t happen again to another Florida family. In their filing, the family specifically stated they wanted an outcome that resulted in “change to preclude this preventable tragedy from occurring in the future.”

Ultimately, that’s what they got in addition to the $8.2 million settlement. Among the procedural changes that the defendant drawbridge company agreed to undergo:

• Subjecting all bridge tender applicants to successfully pass criminal background checks.
• To schedule recertification training with all current bridge tenders.
• To facilitate periodic audits of operations with out-of-area supervisors.
• To require all bridge tenders to watch a 23-minute video on the decedent’s life, driving home the profound price one family paid because one of its bridgetenders allegedly failed to use due caution.

The family reportedly donated a significant portion of the settlement proceeds – including the creation of an annual $30,000 scholarship that will carry on for the next three decades. As the family’s wrongful death attorney was quoted as saying, the family wanted fundamental changes to be central to this settlement agreement. “At the end of the day, we got those changes. Hopefully at the end of the day, this never happens to another family.”

Damages in Florida Wrongful Death Lawsuits

Proving wrongful death in Florida (as codified in F.S. 786.16 – 786.26) requires evidence that:more

• A death occurred.
• The defendant owed a duty of care to decedent.
• An act or omission by the defendant breached that duty of care.
• The wrongful act was the direct cause of the fatal injury to decedent.
• Financial damage resulted from the injury or death.

As our Broward wrongful death lawyers can explain, when these cases are settled or won at trial, the takeaway for the plaintiffs is referred to as “damages.” Damages can be paid for things like medical bills, lost wages, funeral costs, loss of earning potential, pain and suffering of the decedent, loss of consortium (of the decedent’s spouse or children), loss of prospective net accumulations of an estate, etc.

Survivors who may bring a wrongful death action in Florida include a decedent’s spouse, children, parents or other blood relatives or adoptive siblings. (This is not applicable for medical malpractice wrongful death cases, for which only spouses and children under age 25.)

Even though no amount of money is going to bring back a loved one, the courts quantify these damages in dollar amounts. And financial compensation is important for many families in wrongful death litigation, particularly if the decedent suffered a long illness (racking up lots of medical debt) or was a primary wage earner/caregiver within the family. But as the aforementioned case shows, wrongful death claims can also be opportunities to compel important change.

It’s important to discuss your primary goals with your wrongful death lawyer at the outset of your case.

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

Additional Resources:

F.S. 768.21, Florida Statute Wrongful Death Damages

More Blog Entries:

How Fort Lauderdale Pedestrian Accident Victims Can Obtain Compensation for Injuries, Jan. 15, 2022, Broward Wrongful Death Attorney Blog

The right of survivors to claim damages is one of two kinds of wrongful death lawsuits in Florida. The other is an estate claim that seeks recovery of damages on the decedent’s behalf.

The Fort Lauderdale wrongful death attorneys at The Ansara Law Firm can help you determine the right of each survivor affected following the death of a loved one due to another’s negligence, recklessness and/or violence. We can also help you determine which kind of wrongful death lawsuit makes the most sense to pursue.

Florida law regarding the civil rights of fetuses can be a touchy subject, but statute does make it clear that a child who was not yet born when a parent died still has the right to pursue wrongful death damages – as long as they are eventually born.more

The Florida “Born Alive” Doctrine

In examining the rights of minor children to seek compensation for injury to parents – or injury to themselves, we start with the 1976 ruling in Day v. Nationwide Mut. Ins. Co..Florida’s 2nd District Court of Appeals in that case held that a child born alive can pursue damages for its own injuries that occurred when it was a fetus – or any time after conception – regardless of viability. In its reasoning, the court held that if a child is born alive, there is a relation-back to the time of injuries, giving an infant a cause of action in a personal injury or wrongful death lawsuit.

Children can also recover damages for the wrongful death of a parent shortly before birth. This is spelled out in the Florida Wrongful Death Act, and was interpreted by the Florida’s 5th District Court of Appeals in the 1990 case of Ellis v. Humana of Fla., Inc.. The trial court had granted summary judgment for the defense on a claim filed on behalf of an infant for damages on the death of a father killed six weeks before the baby was born. Defendants had argued that the child was not a “minor” or “survivor” within the plain meaning of the Wrongful Death Act, and that if lawmakers had intended unborn fetuses to be protected under the law, they’d have expressly done so. The 5th DCA rejected this argument, noting the Wrongful Death Act is remedial in nature, so it’s supposed to be liberally construed. Once born alive, the child has a right of action.

A child born alive can also receive compensation for a parent’s injury or death under Florida’s workers’ compensation law, as was noted in the 1942 Florida Supreme Court case of C.F. Wheeler Co. v. Pullins.

Loss of Consortium

In personal injury and wrongful death cases, one type of damage that can be recovered is for loss of consortium, which is when significant permanent injury or death resulting from negligence deprives a dependent of services, comfort, companionship, society and support.

Although Florida’s common law doesn’t establish any right of children to claim loss of consortium for the death or serious injury of a parent, F.S. 768.0415 passed in 1988 does.

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

Additional Resources:

Samarel v. Garner, 2005, Florida Supreme Court

But does this right of action still exist if the person who died took their own life?

Florida wrongful death attorneys will tell you that in some cases, the answer is yes. Some wrongful death/suicide cases are predicated on the assertion a defendant owed a duty of care to prevent the suicide, as they were placed on notice of the risk and had a special relationship with decedent (i.e., a schoolteacher, guidance counselor, medical professional, etc.). Other times, the assertion is that but-for the defendant’s actions, decedent would not have tried to harm themselves.

Other district courts have weighed this in the context of “imminent threats” of suicide versus “non-imminent threats.” One case cited occasionally by Fort Lauderdale wrongful death attorneys handling suicide cases is a ruling by the U.S. Court of Appeals for the 11th Circuit held a school district could be held liable for the death of a 13-year-old who committed suicide by hanging in his backyard. The court cited evidence school officials were made aware of troubling incidents at school that may have indicated the potential for self-harm, yet failed to act – despite having a duty to do so.

Wrongful Death Suicide Claim Against Car Manufacturer

Recently, the South Carolina Supreme Court was asked to consider whether an automobile manufacturer could be held legally responsible for losses related to the wrongful death of a man involved in an auto accident and severely injured when his airbag proved defective.

His widow sued on behalf of her lost husband’s estate, arguing that the pain was so bad after the crash that he was unable to bear it any longer.

Defense attorneys argued the man’s suicide was an intervening cause that broke the chain of causation between the crash and his death. Plaintiff argued the man’s pain – caused by the crash – resulted pain so severe, he developed an uncontrollable impulse to harm himself.

Plaintiff doesn’t allege the manufacturer actually caused the crash, but did make his crash injuries more severe. Jurors sided with the plaintiff, and the auto maker appealed to the federal court. The U.S. Court of Appeals for the Fourth Circuit then certified several questions to the state supreme court.

As noted in a recent analysis by the Northwestern University Law Review, each case involving wrongful death suicide needs to be considered on the special facts belonging to it, rather than try to strictly follow traditional tort rules.

Plaintiffs need to establish proximate cause which is legal cause and proof-in-fact, meaning it needs to be more than an indirect/remote cause and the injury was foreseeable.

Justices pointed out there is no exception recognized in that state wherein suicide necessarily breaks the “chain of causation,” but instead consider whether the facts support a finding of probable cause. The court further held that whether the initial proof burden as to whether a suicide is wrongful death is a matter of law for judges – not juries – to decide.

Further, as to whether the comparative negligence could be considered causal in a crashworthiness strict liability/breach of warranty claims when damages are being sought solely for enhanced injuries – not causation – the court answered “no.” In other words, whatever plaintiff did or didn’t do to cause the crash, that comparative negligence – plaintiff’s or another defendant’s – doesn’t reduce a manufacturer’s liability with regard to enhanced injuries. That matters in this case because enhanced injuries are what decedent’s widow – and the jury – had argued were causal in his suicide.

Although this decision doesn’t directly impact Florida (as it is subject to neither the South Carolina Supreme Court’s rulings nor those of the 4th DCA), it is still a pertinent ruling in that sister courts often look to each other when handling future cases of similar substance.

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

Additional Resources:

Wickersham v. Ford Motor Co., July 24, 2019, South Carolina Supreme Court

Although the trial court decided the case in plaintiff’s favor, finding the hotel 15 percent at fault, the appellate court reversed, finding the trial court should have issued a directed verdict on the issue of negligence and also addressed a number of impermissible comments made by plaintiff’s attorney during both opening and closing arguments.

Though the outcome is disappointing for plaintiff, it’s important to highlight why the court decided the way it did, as it’s likely to affect future cases. While this case began with the irrefutable negligence of the drunk driver, this claim at its heart was one of premises liability. The assertion was there was a dangerous condition on the property, defendant hotel knew or should have known about it and yet failed to address it or warn patrons of it.

According to court records, plaintiff introduced evidence that included aerial photographs revealing that the road near the hotel curves, with motor vehicles traveling straight toward the cabana before the road curves right. Plaintiff alleged this created a foreseeable zone of risk, and an expert testified that placing palm trees as a barrier in front of the cabana would have averted the danger, and likely prevented this death. Plaintiff also presented evidence indicating drivers routinely sped on that road.

Defense, meanwhile, argued the crash of this nature was not reasonably foreseeable, and that the cabana complied with building codes and zoning regulations. Further, while there was evidence of speeding on that road, previous municipal studies indicated the threat was primarily to those who were crossing the road, rather than those who were in the cabana. Finally, in the nearly five decades that the road had been there, there had never before been an off-road traffic accident.

The driver in the case had a blood-alcohol concentration that was three times the legal limit. She was later sentenced to 15 years in prison and our Fort Lauderdale wrongful death attorneys understand she reached an undisclosed civil settlement with plaintiff.

The hotel did later erect a barrier to prevent similar accidents, but the appellate court said plaintiff’s argument failed firstly on the issue of “duty,” which is an essential component in any negligence case. Plaintiff had to establish that hotel had a duty of care to protect its patrons from a dangerous condition that it knew or should have known on its premises. The appellate court ruled that this curve on this particular road with a 25-mph speed limit was not a dangerous condition giving rise to duty with respect to those inside the cabana. Further, the lack of accident history at the site bolstered the defense claim that there did not exist a dangerous condition.

The court cited the 1987 decision in Florida Power & Light v. Macias, wherein the 3rd District Court of Appeals held some accidents are too unusual or extraordinary to be reasonably foreseeable, and determined this incident fell into that category.

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

Additional Resources:

Las Olas Holding Co. v. Demella, July 19, 2017, Florida’s Fourth District Court of Appeal

More Blog Entries:

Dangerous Property in Florida Garners Lawmaker Attention, July 17, 2017, Wrongful Death Lawyer Blog

It’s a major problem in the Sunshine State, where more than 99,000 hit-and-run accidents were reported just last year. That is fully one quarter of the total number of crashes, law enforcement officials say. Yet it only accounted for 15,900 of the charges filed last year. Mostly, that’s because the at-fault driver(s) took off and were never found.

In Broward County alone, the Sun Sentinel reports, 14 people were killed and 119 injured in the approximately 12,000 hit-and-run crashes in 2016. Palm Beach County officials, meanwhile, logged 8,000 hit-and-run crashes there resulting in a dozen deaths and 102 injuries. In Miami-Dade County, it was reported there were 19,000 hit-and-run crashes resulting in 20 deaths and nearly 150 injuries.

FHP officials call these figures, “alarming.” Still, there is no statewide database on these crashes. The FHP is setting out to change that, with the hope that unifying all existing databases will help authorities better track these incidents, which could help to solve them and ultimately serve as a deterrent to would-be offenders.

Authorities say at this point, drivers face little or no consequence if they don’t remain on scene, so they have incentive to take off. It is the case, however, that if a driver flees a fatal hit-and-run, they will serve a minimum mandatory four years in prison – the same as one would serve for DUI manslaughter. That law was changed only a couple years ago to strip away the incentive for drunk drivers to flee the scene of serious crashes. The crime is a first-degree felony, and can be punished by up to 30 years in prison and a $10,000 fine.

Clearly, though, it remains a major problem.

Recently in Davie, an 80-year-old woman and her dog were killed and another woman, 61, was injured by an alleged hit-and-run driver struck them on South Pine Island Road as they stood in the bike lane with a dog on a leash in their 55-and-over. The driver of the vehicle never stopped. The woman who survived suffered two broken bones in her spine. Witnesses say the driver appeared to have been a white male in his 50s wearing glasses and accompanied by a female passenger.

In another case, the parents of a 6-year-old killed in Miramar four years ago are still seeking answers after he died in a hit-and-run crash. He had just gotten a Happy Meal from a local McDonald’s and was following a relative across a street when the driver struck him. The child landed on the roof of the car before it sped away. Numerous people called 911, but the driver was never found.

Our Broward car accident injury lawyers know these cases leave families reeling, and often unsure of their next legal step. In many cases, filing a claim for uninsured motorist coverage is the best way to help recover financially for medical bills, lost wages and wrongful death. UM is auto insurance coverage that covers the victim in the event of a crash with a driver who is either:

• Not identified.
• Has no insurance.
• Lacks enough insurance to cover the damages.

Hit-and-run crashes would be included in applicable scenarios.

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

Additional Resources:

FHP launching programs to solve hit-run cases, Feb. 3, 2017, By Wayne K. Roustan, Sun Sentinel

More Blog Entries:

Florida Pedestrian Accident Deaths an Urgent Concern, March 23, 2017, Wrongful Death 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

The ruling was not wholly unexpected. Stahl was essentially an indictment of the entire workers’ compensation system in Florida. The case stems back to 2003, when plaintiff began working as a nurse at a mid-sized hospital and he suffered a work-related back injury. This occurred just a few months after state legislators had enacted a series of changes to the state’s workers’ compensation program. Two years after his injury, his physician determined that he had reached maximum medical improvement. Unfortunately, that rating – and his injury – was essentially career-ending because, being unable to lift above a certain weight, he could no longer be a nurse. He was then awarded just 12 weeks of impairment benefit income and $5,472 – for an injury that permanently locked him out of his field. Later, the workers’ compensation board determined plaintiff didn’t meet the definition for permanent total disability and his claim for those benefits were denied.

What he argued in his case was that this award of just $5,472 was not adequate for the injury he sustained. Therefore, it could not be the exclusive remedy plaintiff had as recourse. Florida, like so many other states, recognizes an exclusive remedy provision that prohibits injured workers from suing their employer for negligence in exchange for a system of no-fault benefits. However, those benefits are supposed to fairly compensate workers for their losses. It was supposed to be part of a “grand bargain,” but as workers’ compensation protections are being steadily whittled away, it’s more of a bargain for companies and more of a raw deal for workers.

Plaintiff’s attorney said he recognized the petition to the supreme court was “a long shot” because it would have required the court to examine the entire constitutionality of the state’s workers’ compensation system, which undoubtedly would have an effect on the workers’ compensation system in the country at-large. As the court is only working with eight justices at the moment, it has been conservative about the cases it takes on.

Defendants in the case say that eliminating workers’ compensation as an entire system would have done much more harm to workers than good.

But our work injury lawyers in Fort Lauderdale know there has been some good news this year in workers’ compensation cases. In April, there was the case of Castellanos v. Next Door Company. Here, the Florida Supreme Court held that the mandatory attorney fee schedule – which in some cases worked out to plaintiff lawyers receiving just a few dollars an hour – was unconstitutional because it violated workers’ due process rights under the state and federal constitution.

Then in June, the state supreme court took on the case of Westphal v. City of St. Petersburg. In that case, the court ruled that the 104-week limitation on temporary total disability benefits is not constitutional because it resulted in workers having limited access to the courts. The court ruled the previous 260-week limit in place prior to the 1994 change in the law should be reinstated.

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

Additional Resources:

U.S. Supreme Court Declines to Review Challenge to Florida Workers’ Comp System, Nov. 10, 2016, By Amy O’Connor, Insurance Journal

More Blog Entries:

Motorcycle Riders in Construction Zones Face Hazards, Nov. 11, 2016, Fort Lauderdale Injury 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

Officials told The Washington Post that the bus collided with a tractor-trailer truck that was traveling on the interstate going approximately 5 mph. The bus, which was going much, much faster, slammed into the rear of the truck with such force that the entire front of the bus became enmeshed in the trailer of the truck – a full 15 feet into the back of the rig. Authorities report a total of 13 people were killed and another 31 were seriously injured and taken to area hospitals – all adults with injuries ranging from minor to critical. Of those 13 who lost their lives, 10 were women. One of the three men killed was the driver of the bus.

Now, The Los Angeles Times reports so far two of those families have filed wrongful death lawsuits against the bus company that was chartered to bring them safely home from an L.A. casino. Plaintiffs allege the bus company, USA Holiday, and the driver personally failed to:

• Travel at a safe speed;
• Brake to avoid a crash;
• Properly maintain the bus.

more

The driver of the bus reportedly owned the company, which was operated out of his personal dwelling – which is somewhat unusual for charter bus companies.

Preliminary results of an investigation by the National Transportation Safety Board (NTSB) indicate the bus failed to comply with vehicle safety standards, with two of its eight tires not having sufficient tire tread to be considered safe. The federal investigation of the collision continues. Simultaneously, wrongful death lawyers are conducting their own independent investigations of the incident and have been querying witnesses about what exactly occurred in an effort to gather information pertinent to current or future claims.

Some of the attorneys spoke to the Times, indicating the early results of the investigation suggest what we already had a strong inkling of before: The commercial bus industry is poorly regulated. Consumers purchase a bus ticket with the assumption that there is sufficient oversight of carriers, vehicles and drivers. Too often, we’re finding out that simply isn’t true.

These charter buses, often referred to as motorcoaches, are overseen by the Federal Motor Carrier Safety Administration (FMCSA). The most recent Motorcoach Safety Action Plan reveals approximately 750 million passenger trips are made in these vehicles annually. From 2001 to 2010, motorcoach crashes resulted in approximately 17 deaths annually. The most common causes of these bus accidents, as reported by federal officials, are:

• Driver fatigue;
• Driver behavior (specifically distraction with cell phones);
• Lack of operator oversight (specifically not properly vetting drivers, failing to ensure drivers are well-rested)
• Failing to properly maintain vehicles.

In 2014, the FMCSA reported there were nearly 4,000 large trucks and buses involved in fatal crashes.

In clearing the wreckage of this latest tragedy, officials say most of the bodies were recovered in their seats, suggesting passengers had been properly seated at the time of the crash. In fact, many had been asleep. Officials are examining the “black box” data recorder that would provide clues as to what exactly occurred in the moments before the collision.

The bus had reportedly last been inspected in April and been deemed roadworthy.

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

Additional Resources:

‘I was awakened by the sounds of people screaming’: Bus crash near Palm Springs kills 13, Oct. 24, 2016, By Amy B. Wang, The Washington Post

More Blog Entries:

$8M Verdict Awarded for Wrongful Death of Disabled Group Home Resident, Oct. 28, 2016, Florida Wrongful Death Lawyer Blog

The decedent’s son argues he did not have the legal authority to forfeit her right to remedy through the courts when he signed his name arbitration agreement stuffed into the thick stack of nursing home admissions paperwork.

He now says the roommate, a dementia sufferer who reportedly strangled his mother, had a history of problems and the facility should not have allowed her to live with another resident.

This issue of forced arbitration is a means by which nursing homes essentially toss away the keys to the courthouse. The contract they make new residents – or their representatives – sign contains a clause that states if there is a dispute regarding care – even one that results in serious injury or death – the resident agrees to resolve it before an arbitrator, rather than in court.

There are a number of problems with this approach, at least from the victims’/survivors’ perspective.

To start, these proceedings are not public. This disadvantages plaintiffs in more than one way. First, it strips the nursing home of the compelling factor of public scrutiny. They are less likely to enter a favorable settlement when they know that decision won’t be scrutinized by the public. Secondly, it takes away from victims the benefit of information that might have been gleaned from previous public trials, either against the same defendant or against another in similar circumstances.

Beyond that, cases that don’t go to court don’t necessarily need to follow – and won’t set – legal precedent. That means there are fewer checks and balances in the process. Arbitrators, whose rulings are binding, make decisions on what they perceive to be fair, rather than what the law directs. And some of these arbitrators receive regular work with individual nursing homes or nursing home corporations. This inevitably skews the fairness of the proceeding.

More often than not, arbitrators decide cases on terms more favorable to the nursing homes. Even if the victims “win,” their damage awards are likely to be far less substantial.

These are just some of the reasons why it behooves victims of nursing home abuse and neglect or their surviving relatives to challenge the arbitration agreement. And increasingly, this is happening on highly technical grounds that challenge the validity of certain clauses.

In the Massachusetts case, the son signed his mother’s arbitration agreement on her behalf when she was admitted. But while he was designated as her health care proxy, he lacked the authority to bind his mother into arbitration. Initially, in 2010 a court barred him from filing his wrongful death lawsuit because he’d signed this agreement. However, in 2014, another judge ruled in favor of the son. Now, the case is going to trial.

Nursing home arbitration agreements have come under withering criticism in recent years, and the federal government is weighing measures that would regulate the way nursing homes present arbitration agreements when residents are admitted. As some lawmakers have noted, no one should be forced to accept a denial of justice as the price for receiving the care they deserve.

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

Additional Resources:

Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract? Feb. 21, 2016, By Michael Corkery and Jessica Silver-Greenberg, The New York Times Dealbook

More Blog Entries:

Fort Lauderdale Crash Injury Victim Wins $300K Against Police, Feb. 14, 2016, Fort Lauderdale Wrongful Death Lawyer Blog