Miami Personal Injury Lawyer Blog

Property Owners May Be Responsible for Accidental Drowning

Fri, 03 Feb 2012 12:32:39 -0500

It is an unfortunate and specially sad fact of life that small children continue to lose their lives in Florida when they wonder into a backyard swimming pool and drown. A few days ago in Orlando, a 4 year-old boy somehow gained access to a neighbor's backyard and was found by police face-down in the pool. According to newstalkflorida.com, police officers were near his house on an unrelated call when the boy's mother approached them saying that her son was missing. Officers attempted CPR on the child, who was immediately transported to a local hospital where he was pronounced dead.

Attractive Nuisance Doctrine

The Attractive Nuisance Doctrine is part of Tort Law. It states that a landowner may be held liable for injuries to children trespassing onto his land if the injury is caused by hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. Over time, landowners have been held liable under this doctrine for injuries caused by abandoned cars, piles of lumber or sand, trampolines and swimming pools.

Plaintiffs must meet the following five conditions to prove that a landowner is liable under the doctrine:

That there is a dangerous condition to children on the land that the landowner should have been aware of;

That the owner knows or should have known that children often wonder in the area where the dangerous condition is located;

That the condition is dangerous and can likely cause injury or death to children because they cannot appreciate the risk;

That the utility to the landowner of maintaining the condition and expense of fixing the dangerous condition are minimal when compared to the risk it posses to children; and

That the landowner has failed to exercise reasonable care to eliminate the dangerous condition or adequately protect the children.

Understanding Diminished Value of Car After Accident

Wed, 25 Jan 2012 11:48:41 -0500

The value of almost every car is diminished after it is involved in an accident, regardless of how well the resulting repairs are performed. This is because consumers are reluctant to buy a car that has been previously crashed. In fact, if they knew that the vehicle they were about to buy had previously been involved in an accident, some people would probably walk away from the deal, while most people would probably use that information to get as large a discount as they could.

Your Insurance Company Won't Tell You About Diminished Value

Another interesting point is that your insurance company won't tell you about the diminished value of your vehicle after it has been in an accident...At least not voluntarily. They will tell you (even boast) about their excellent claims service, about the quality of the repairs made to your vehicle, how these are "guaranteed for life" and, that's it.

Theme Parks Must Report Injuries

Mon, 23 Jan 2012 14:12:31 -0500

The newly opened Legoland has joined other Florida theme parks in reporting injuries suffered by patrons while visiting their venues, according to the SunSentinel.Com.

Injuries to be Reported to Bureau Of Fair Rides

The State's Bureau of Fair Rides receives quarterly reports of certain injuries and illnesses from all major Florida theme parks. For example, 12 injuries were reported during the fourth quarter of 2011 by Orlando's theme parks. The injuries included a fractured ankle caused by a slip and fall. However, the reports also include illnesses, such as the case of a 71-year-old man "not feeling well" before and after riding "Expedition Everest" in Disney's Animal Kingdom, who's reports have also noted that a blocked artery was a factor when a 43-year-old woman who complained of nausea and dizziness related to the Magic Kingdom's "Space Mountain" ride.

Owner Of Car Is As Liable As Driver

Tue, 10 Jan 2012 13:50:27 -0500

I once heard someone say that in Florida it's ok to lend anything but your car to a friend...I didn't quite understand what that meant until I attended Law School and came across the "Dangerous Instrumentality Doctrine".

Vehicle Owner Equally Responsible

Under Florida Law, the owner of a motor vehicle is liable for the damages and/or injuries caused by another operating his or her vehicle. This rule is the result of the "Dangerous Instrumentality Doctrine" as adopted by the Florida Supreme Court in the case of Southern Cotton Oil Company v. Anderson, 80 Fla. 441, 468, 86 So. 629, 637 (1920) where the Court stated that: "one who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner".

Premises Liability Cases Are Not Limited to Commercial Properties

Mon, 21 Nov 2011 08:56:24 -0500

People often fail to realize that a homeowner is as liable as the owner of a commercial property for a visitor's injuries or death. In other words, a premises liability case can be filed against a homeowner the same way it could be filed against a hotel or other establishment when someone gets injured at their premises.

Swimming Pool Accidents

Swimming pool drownings are among the most common sources of premises liability cases against homeowners in South Florida. With warm weather almost all year, Florida (specially South Florida) is a place where many homes have swimming pools. Of course, not all accidental swimming pool drownings or near drownings will bring about a premises liability case. For example, the recent accidental drowning of a toddler in what appears to be his own backyard pool in South Miami is unlikely to become one. However, had it been someone else's child, the homeowner may have had to face civil liability in court.

WHY HIRE AN ATTORNEY IMMEDIATELY AFTER AN INJURY OR A WRONGFUL DEATH

Fri, 09 Sep 2011 08:35:46 -0500

Having represented so many injured people, as well as those that lost close family members due to other's negligence or fault, I know the shock, grief, anger and pain felt by them. It does not cease to amaze me how often I get a call from someone that has been injured in an accident (or someone that lost a loved one) asking questions about the viability of a claim months or years after the accident from which it originates took place. Experience tells me that the best course of action for someone in that situation is to hire an attorney as soon as possible so that the necessary experts can be retained, evidence can be preserved and witnesses can be interviewed so that if there is a case, it can be filed with all the evidence necessary to obtain the best result possible.

Assisting The Daughters Of A Man Killed In An Explosion

In 2010 we were hired by the two young daughters of a man hospitalized in the intensive care/burn unit at the Orlando Regional Medical Center as a result of getting severely burned in a gas explosion. Friends of his daughters had advised them to help their dad by hiring a lawyer who could start working on the claim as soon as possible. The daughters reluctantly called and hired us.

We immediately hired a renowned expert who met us at the scene of the explosion and searched through the rubble to find the cause of the explosion. We arranged to meet with all the parties involved (Fire Marshall, adjusters and experts from the condominium association, a unit owner and the LP gas company) within 48 hours of being hired.

Collecting Evidence Soon After The Event

Everything was comprehensively examined by ALL PARTIES PRESENT. This was very important because it avoided later having issues of evidence tampering or the chain of custody of such evidence. In this case, the whole scene was inspected and photographed by each party at the same time. This proved specially important because within 2 days of this inspection, someone tampered with the evidence at the scene. Had we not inspected the scene earlier, we might not have been able to settle this case for a very substantial sum within a couple of months of the explosion.

What is Tort Reform? - Part III

Thu, 18 Aug 2011 14:20:59 -0500

In past posts we have talked about "reformers" trying (in many cases, succeeding) to dramatically change our tort law by imposing conditions on the use of expert witnesses (as done in Florida by a statute that requires out of state expert witnesses to obtain a "certificate" from the Medical Board), shortening the statutes of limitation and by imposing "caps" on damages. On this occasion we will talk about another method used to fool the public into accepting tort reform: greatly limiting awards for punitive damages or eliminating them altogether.

What Are Punitive Damages

Punitive damages (or exemplary damages, as they are sometimes called) are intended to punish and "make an example" of the wrongdoer or tortfeasor. In other words, they seek to stop others from incurring in the same wrongful actions and to express society's outrage at those wrongful acts.

Similarly, punitive damages may be awarded in cases where the court considers that compensatory damages are not an adequate remedy. For example, they may be awarded against an intoxicated driver for injuries or death he or she caused, i.e., to financially punish the drunk driver for his or her conduct. Also, punitive damages may be exceptionally awarded in contractual disputes: in insurance bad faith cases the insurance company's refusal to pay (despite being clearly obligated to do so) is considered a tort separate from the contractual dispute which entitles the plaintiff to damages beyond the value of the insurance policy.

What is Tort Reform? - Part II

Thu, 11 Aug 2011 14:24:32 -0500

In our last post on this subject we explained what is tort and briefly "touched" on tort reform as it refers to medical malpractice, specifically in the State of Florida. In this post we will talk about those who propose tort reform and the specific changes they are proposing (or already implementing) and some of their "convincing" arguments on why we need tort reform.

Who Wants Tort Reform And Why

Insurance companies, the medical industry and big business in general are among those that want to change the current tort system. Among the "reasons" they raise in support of why the system should be changed, they claim that the so called "frivolous" lawsuits increase the cost of litigation and compensation payouts, raising the cost of insurance because of how much money they have to spend in insurance premiums.

As we pointed out in the previous post, there are no such frivolous lawsuits in medical malpractice: these cases are so expensive to litigate (among other things because of the cost of hiring medical experts) that no plaintiffs' law firm would dare to pursue a case unless they were as certain as anyone can possibly hope to be of the validity of their client's injuries and the defendant's responsibility those injuries.

Also, as related to medical costs in this country, proponents of tort reform claim that frivolous lawsuits increase the cost of healthcare because of the amounts of money the medical industry has to spend in malpractice insurance premiums. However, according to Bloomberg Businessweek, tort reform would have no noticeable effect in this area. A study by the Congressional Budget Office shows that medical malpractice cases increase the cost of healthcare by only 1% to 2%.

How To Pick A Lawyer To Handle Your Personal Injury Case

Tue, 09 Aug 2011 18:01:09 -0500

Every where you look there are lawyers who want to represent you or your loved ones when injured or killed due to the negligence of another. It seems like every other television and radio commercial is about a law firm that wants to handle your case. Billboards and other forms of advertisements beckon you to call. Just how is someone supposed to find a competent, qualified and experienced lawyer to handle their claim?

Be A Smart Consumer

A person who is injured or who has lost a loved one and is looking for legal representation is a "consumer of legal services." As a consumer, you have every right to make sure that you are getting the most for your dollar, even though you won't be paying for the lawyer's services until the case is settled. Not all lawyers are equally qualified or have the experience necessary to handle claims for car accidents, motorcycle accidents, trucking accidents, medical malpractice, wrongful death, product liability, boating accidents and plane crashes.

So how do you begin your search? Referrals are always good, but in and of themselves should not cause you to make a decision. The person who is referring you to the lawyer may not have had the same type of case that you have. In other words, different facts or different laws may apply. Advertisements are a good place to start, as is the internet. But they are just that, a place to start.

Good Resources To Check For Lawyers' Experience

What you need to do is look at the lawyer's experience and qualifications. A way to do that is to see how the lawyer is viewed by his peers and the courts. Martindale Hubbell rates lawyers according to their ability and their ethical standards. An "AV" rating is the highest rating that a lawyer can receive from Martindale Hubbell. This rating is peer reviewed, meaning that other lawyers in the community rate the lawyer. So first you should seek out an "AV" rated lawyer. A second resource are "Super Lawyers" and "Law Dragon", who have also created peer reviewed rating systems. The lawyers that make the "Super Lawyers" or "Law Dragon" are deemed exceptional by other lawyers, as wel as by Judges in the community.

The lawyer that you want to represent you should also be a member of his/her state trial lawyer's association and the American Association for Justice, which is a national organization formed by Plaintiff's lawyers. In addition, membership in other associations could be viewed as important as well. I, for one, am on the Florida board for APITLA, which is the Association for Plaintiff Interstate Trucking Lawyers of America. This is a very important organization, because interstate trucking is regulated by the Federal Government and if you do not hire a lawyer who is well versed in trucking law, you may be missing an opportunity to avail yourself of more insurance coverage to help compensate you for your injuries.

What is Tort Reform?

Fri, 29 Jul 2011 17:23:18 -0500

Friends and family members often ask "hey, what's tort reform? Following I will attempt to answer this question about a legal topic that is more important to our society than most of us realize.

What Is A Tort?

However, before discussing tort reform I believe it is best to explain what we mean by "tort". Contrary to popular belief, the term tort (as used in the legal World) does not refer to a cake or other form of delicious pastry. It comes from English Common Law and it refers to the breach of a civil duty by an individual (or a corporation) to another person. Such civic duty is different from a contractual or an equitable duty: contractual duties are duties arising from an agreement reached by the parties. Equitable duties are those springing from rights a person may have.

While many wrongful acts amount to both torts and crimes, they are different: a tort is typically dealt with by the victim filing a lawsuit against the wrongdoer, who is known as the tortfeasor. A crime, on the other hand, is dealt with by the state prosecuting the accused. One more important difference: while the remedy for a crime is the sentencing of the accused to death or to a prison term, the remedy for a tortious act is typically money damages.

Finally, torts come from three different kinds of actions:

1. Negligent actions. Most lawsuits are based on negligence:

a. Car, motorcycle and truck accident cases;

b. Slip or trip and fall cases;

c. Medical malpractice cases;

d. Product liability or defective products cases;

e. Pharmacy error cases;

f. Negligent security cases;

g. Amusement park accident cases;

2. Intentional acts:

a. Assault;

b. Battery;

c. False Imprisonment;

d. Intentional Infliction of Emotional Distress;

e. Fraud.

3. Quasi-torts or liability torts. These can be categorized as statutory violations. Among others they include:

a. Violation of consumer protection laws;

b. Worker's compensation cases;

c. Violations of anti-discrimination laws.

For the purposes of this post, we will only deal with torts caused by negligent acts.

Aesthetic Surgery Victim's Family Sues Clinic

Sun, 17 Jul 2011 17:44:21 -0500

A Weston plastic surgery clinic that has allegedly caused the death of two patients is now being sued by the family of the second victim, according to BrowardPalm Beach.com.

Nip & Tuck Surgeries Gone Wrong

Kellee J. Lee-Howard, mother of six and wife to James Howard, had a liposuction procedure performed at Alyne Medical Rejuvenation on February 23rd, 2010 and died the following day of polydrug toxicity because of the clinic's failure to properly administer lidocaine, according to her husband and his lawyers.

A second patient died on June 11 from a procedure performed at Alyne: Maria Shortall, a 38 year old mother of two stopped breathing halfway through her liposuction. She was subsequently rushed to a hospital and declared dead on arrival.

Too Many Wrong Site Surgeries Every Week In The United States

Thu, 14 Jul 2011 10:38:06 -0500

The Washington Post has recently revealed that according to the Joint Commission Center for Transforming Healthcare 40 wrong-site surgeries happen every week in the United States.

Amputating The Wrong Leg

Mistakes include amputating the wrong leg, operating on the wrong patient or in lay terms, performing the wrong surgery. Surgeon Dennis O'Leary says that wrong site surgery may be prevented by checking things as simple as that the right patient is on the operating table or that an X-ray isn't flipped....

With the cooperation of 8 hospitals and ambulatory surgery centers, the Commission studied their operating protocols and found that the risk of wrong-site surgeries happening increased with problems within the facilities' preoperative procedures and scheduling processes, as well as ineffective communication and distractions in the operating rooms. The study showed that by establishing redundant verification procedures in the preoperative rooms the risk of wrong-site surgeries decreased from 52% to 19% therefore increasing patient safety.

Hip Hop Star Injured in Jet Ski Accident in Miami Beach

Mon, 30 May 2011 17:03:54 -0500

Sean Kingston, a Miami native Hip Hop star, was taken to Ryder Tauma Center at Jackson Memorial Hospital critically injured as a result of a jet ski accident late Sunday evening, according to the Miami Herald.

Struck Bridge in Miami Beach

According to Officer Jorge Pino, a spokesman for the Florida Fish & Wildlife Conservation Commission, Mr. Kingston, 21, was driving the personal watercraft with a female passenger on board at the time of the accident.

Florida Cities Ranked "Most Dangerous For Pedestrians In The Nation"

Sun, 29 May 2011 12:25:28 -0500

Four Florida cities are among the top ten most dangerous cities for pedestrians in the United States, according to USA Today.

Orlando is No. 1

A study by Transportation for America, a safety advocacy coalition, found the Orlando - Kissimmee metro area to be the deadliest metro area for pedestrians in the United States with 550 pedestrians killed in the last decade alone. The list included only cities with more than one million inhabitants. With Tampa - St. Petersburg - Clearwater as number 2; Jacksonville as number 3 and Miami - Ft. Lauderdale - Pompano Beach as number 4, Florida was the State with more cities on the list.

Florida Legislature Passes New Bills on Medical Malpractice

Fri, 06 May 2011 12:22:26 -0500

A bill overhauling medical malpractice lawsuits in Florida was passed by the legislature on Wednesday, according to the Insurance Journal.

Targets Out of State Doctors

The bill's primary target are doctors from other states that testify as expert witnesses in medical malpractice lawsuits in Florida courts. Under the new law, which Governor Rick Scott is expected to promptly sign, doctors from other states who wish to act as expert witnesses in medical malpractice cases litigated in Florida courts, must apply for a certificate which allows the State of Florida to subsequently discipline them if their testimony is found to be "deceptive or fraudulent".