South Florida Personal Injury Blog

Fri, 27 Aug 2010 18:56:32 -0500

Personal injury attorneys caution that the Graves Amendment, which expressly preempted all state vicarious liability schemes that imposed liability on lessors of borrowed vehicles where the vehicle was involved in an accident through no fault of the lessor, preempted the Florida statute that created an exception to common law dangerous instrumentality doctrine for lessors of motor vehicles and dangerous instrumentality doctrine as applied to motor vehicle lessors; despite claims that the statute was a financial responsibility law that created a separate cause of action against the lessors of motor vehicles under Florida law, the statute did not create insurance standards for entities that registered and operated motor vehicles within Florida or impose liability on the owners of motor vehicles for failing to comply with state insurance requirements, and nothing in the statute imposed any penalties or liabilities on the lessors of motor vehicles who did not maintain minimum levels of insurance. The Graves Amendment barred the vicarious liability claims of motorists against a motor vehicle lessor, after the motorists were allegedly injured in a collision with the eased vehicle operated by the lessee.

If you have been injured in a car accident where the driver borrowed the automobile from a third party it is strongly recommended that you speak with a personal injury attorney in order to determine all negligent parties.

How will you know how serious your injury is?

Thu, 19 Aug 2010 17:01:46 -0500

Only you and your treating doctors will know and they will only know after examining you and monitoring your treatment over a period of time.
Many injuries can develop into serious injuries even though at first they appear minor. This is especially true for soft tissue injuries that may not become a problem until several days or weeks after the accident. Traditional treatments for soft tissue injuries have been rest, heat, and ice, medications such as anti-inflammatories, muscle relaxants, pain killers, as well as courses of treatments at physiotherapy clinics, and/or by more modern trend, chiropractic treatments, massage treatments and gym and home exercise programs. Your doctor will also refer you for some of these treatments: rest, ice, heat at a minimum as well as muscle relaxants and pain killers. Your doctor may request x-rays, suggest some time off work, and refer you for physiotherapy or massage. Another option for treatment is to go to a chiropractor. Chiropractors are medically trained and offer treatments for soft tissue neck and back injuries.

Fault vs. No-Fault Automobile Insurance from a Personal Injury Perspective

Mon, 16 Aug 2010 19:14:56 -0500

Personal injury attorneys state that although the specific rules in each state vary, there are only two basic legal frameworks are fault and no-fault that control who pays (in legalese this is called "economic liability") for personal injury and economic damages resulting from automobile accidents. On the one hand, the fault system requires that "fault" be determined through an investigation by the insurance companies involved and/or by a court judgment before economic responsibility is apportioned. Normally, whomever is legally at fault pays for the damages for personal injury and automobile replacement or repair.
On the other hand, according to personal injury attorneys, the no-fault system is designed to simplify this process by providing every accident victim with immediate compensation, regardless of who is to blame. Since both systems are in operation throughout the country, and some states even have a blend of both, we need to address the ins and outs of each.
Personal injury attorney Andrew Alitowski explains that States like Florida and Kentucky are no-fault states. The issue of fault and negligence in any personal injury case is always an issue, however, in seeking money for a client who was the victim of a car accident caused by another. Being informed as to how insurance policy limits and fault impact a case is crucial to a clients overall understanding of their claim for damages and the litigation process.
-Dawn Turner

Understanding Car Insurance in Florida & Kentucky

Mon, 16 Aug 2010 17:19:32 -0500

Personal injury attorneys deal with insurance companies on a regular basis. Understanding how car insurance companies work is a matter of interest to both the victims of car accidents as well as the negligent driver who caused it.
When you buy your automobile insurance policy, you are paying your insurance company (also called your "insurer") to assume a limited monetary risk over any accident in which you are involved. The company can afford this type of economic roulette because it has millions of premium paying policyholders, only a small fraction of whom will be involved in accidents. Even then, the portion of accidents involving significant injury represents a small percentage of those accidents. Personal injury attorneys always look to the policy limits first when evaluating a claim.
You, understandably, obtain automobile accident insurance because the risk of going uninsured is too great. The hardship of an accident without insurance protection would be economically devastating which is why many states including Florida and Kentucky legally require at least minimum coverage.
Most insurance companies try to hedge the odds in their favor by screening their customers, accepting only good drivers, or charging young or high-risk drivers higher premiums. They then try to maximize their profits by wisely investing your premium dollars and carefully scrutinizing policy claims before paying out any money following a personal injury attorney or law firm submitting a demand for monetary damages. More information about understanding car insurance in Florida see Florida personal injury, for Louisville Kentucky, visit Louisville Insurance Claims.
-Dawn Turner

Fort Lauderdale Personal Injury Attorneys Caution Against Making Deals Immediately Following a Car Accident

Sun, 15 Aug 2010 09:39:41 -0500

Making a deal at the scene of a car accident resulting in personal injury is one of the biggest that a victim can make according to most personal injury lawyers. The fact is that you are permitted to wait until you get away from the accident scene and have some time to calm down before contacting your insurer. Ninety-nine per cent of the time there is no reason to make a quick cash deal with the other driver. If the other driver is clearly at fault, admits it, and offers a few hundred dollars to resolve the situation, injury attorneys’ suggest you do everything listed in the above sections and politely ask that you be given a day or two to consider the offer. You need to give your body and your common sense some time to relax and take inventory. If you leave with $200 dollars in your pocket and no information about the other driver, or even worse, no names of witnesses, you may be paying for your own medical treatment when your back starts to stiffen or your neck starts to hurt. Always take your time, and if a day or two later you are feeling fine, you can then decide whether a couple of hundred dollars is reasonable compensation. If the other driver really wants to keep his/her insurer out of the picture, the offer should still be available. If not, you have all the information you need to make an insurance claim. Of course the best cause of action in any automobile accident resulting in personal injury is to contact a qualified Fort Lauderdale personal injury attorney.

If you are at fault and want to settle the claim at the scene, the cash you give away will not necessarily stop the other person from making a claim against your insurance policy. The only way to bar future claims relating to the accident is to obtain an enforceable "release from liability" agreement that has been drafted by a law firm qualified to handle insurance settlements. A verbal agreement to forego future claims in exchange for a small amount of cash, made in the heat of the moment after the accident, is all to often difficult to establish in court, especially if the person later proves to be seriously injured and is represented by reputable counsel.
Contributed by Dawn Turner

Personal Injury Offices Now Open in Louisville Kentucky

Fri, 13 Aug 2010 17:08:02 -0500

The personal injury lawyers at Alitowski & Moore are now proud to announce the opening of their new office in Louisville Kentucky.

Personal injury attorneys often explain that the most distressing aspect of many accident recovery experiences is that most of the traumatic aftereffects could be mitigated, if not avoided altogether. Often the only barrier separating you from a safe, passage to health is information. It is no mystery why many of you sincerely feel that your victimization continued long after the broken glass settled. If only you knew what to expect of insurance companies, attorneys, physicians, and the myriad of others involved in the accident recovery maze; if only you knew how best to take control of your physical, economic, and psychological healing, much of your trauma could have been alleviated. The attorneys of Alitowski & Moore, P.A. are available to help you through this process and seek the maximum monetary award possible for your injuries. Our lawyers have offices in South Florida and Louisville Kentucky.

Florida Sex Discrimination and Retaliation of Female Florida Employee

Wed, 14 Jul 2010 19:45:49 -0500

Florida discrimination attorneys are faced with challenging cases on a daily basis. Unfair practices in the workplace are more common than one might think despite our legal systems best efforts to prohibit such behavior on the part of Florida employees.
In May of 2010, the United States District Court for the Middle District of Florida decided a sex discrimination and retaliation case. (See Smith v. Naples Community Hospital, Inc., 2010 WL 2026163 (M.D.Fla.))
This case is about a woman who felt that she was discriminated based on her sex and retaliated against. The division in the company where she worked was sold to another company and she was eventually let go. She felt that her firing was pretextual and in retaliation for her filing with the EEOC, but the Court did not agree and granted Defendant’s Motion for Summary Judgment. The reasoning is as follows.
The first issue in this case was with regards to Defendant’s Motion to Strike the Affidavits that were attached to Plaintiff’s Response. “Rule 56(e) state that an affidavit “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to matters stated therein.” Thus, conclusory arguments, statements based on information and belief, and inadmissible hearsay are subject to motion to strike.” (cites omitted). Id. Defendant argued that all 4 declarants were deposed and that Plaintiff is submitting affidavits to supplement their deposition testimony. Id. The Court ruled that the affidavits were allowable less those portions that were opinions or hearsay. Id.
This sex discrimination case began when Plaintiff began working for Defendant in July of 2001 as the Director of Radiation Therapy. Id. In February of 2002 Plaintiff was promoted to a new position. Id. This new position was in addition to her old job load. And then in 2007 Defendant started to negotiate to sell the radiation therapy practice. Id.
In early 2007, Plaintiff came under the supervision of Kevin Cooper. Id. On November 30, 2007, Plaintiff filed a sexual discrimination charge with the EEOC against Mr. Cooper. Id. Then in December of 2007, the other part of Plaintiff’s job closed so she was just back to doing her regular job. In February of 2008, Plaintiff learned that of the possible sale and in April of 2008 the sale went through. Id.
Plaintiff was told of her upcoming termination on April 8, 2008 when she met with HR and explained that her position was eliminated due to the sale and that she would stay on to help with the transition for 2-6 weeks. Id. On April 25, 2008 Plaintiff was fired and so then on June 2, 2008, Plaintiff filed a second charge alleging retaliation. Id.
Plaintiff filed a 6 count complaint alleging sex discrimination based on a hostile work environment, retaliation, sex discrimination under Title VII and parallel counts alleging the same violation under the Florida Civil Rights Act.
Title VII prohibits discrimination against individuals in part because of one’s sex. Title VII prohibits two categories of discrimination-disparate treatment and disparate impact. Id. “In disparate treatment situations, an employer discriminates against an employee because of the person’s membership in a protected group (e.g., women) disparate treatment discrimination can take two forms-a tangible employment action or creation of a hostile work environment.” (cites omitted). Id. Plaintiff alleged both types.
To prove a hostile work environment claim, plaintiff must show: “1) that he or she belongs to a protected group, 2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature, 3) that the harassment must have been based on the sex of the employee, 4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatory abusive working environment, and 5) a basis for holding the employer liable.” (cites omitted). Id.
Plaintiff’s allegations against Mr. Cooper were that on a few occasions he yelled at Plaintiff, went ballistic on one occasion and pounded on the desk once. In order to win under a Hostile Work Environment, the harassment must be based on the sex of the employee. This Court follows the precedent that “Title VII is not a ‘general civility code.’” (cites omitted). Id. Title VII does “not prohibit harassment alone, however severe and pervasive.” Id. But, as there was evidence that Mr. Cooper only acted this way in front of women and not men, up to this point, her claim could continue. But, the next prong was to establish the ‘severe or pervasive’ element. To do so, the court utilizes the totality of the circumstances approach. Id. The Court looks to see if the conduct “alters the conditions of the victim’s employment.” (cites omitted). Id. And to this prong, the Court held that no reasonably jury could conclude that the conduct in this case satisfied either the severity or pervasiveness requirements. “it appears that much of the conduct plaintiff alleges was harassment was in fact annoyances and communications issues that do not come close to creating a hostile work environment.” Id. This Court held that a few isolated screaming incidents are not sufficiently severe to alter the conditions of Plaintiff’s employment to create a hostile work environment. Id.
Next, as to the termination of her employment, Plaintiff claims that it was in retaliation of her complaining to the EEOC. “In order to establish a prima facie case of retaliation under Title VII, an employee must show that: 1) she was engaged in an activity protected under Title VII; 2) she suffered an adverse employment action; and 3) there was a causal connection between the protected activity and the adverse employment action.” (cites omitted). Id.
The Court was not convinced that the evidence of when Defendant received the EEOC charge (on November 30, 2007) to when she was terminated (April 25, 2008) was proof of temporal proximity. This was not proof that the adverse action was not wholly related. But, Defendant argues that even if the Court does find this to be enough to establish a prima facie case, that the Defendant has a legitimate non-retaliatory business reasons for the termination of Plaintiff. Id. Defendant sold the unit where Plaintiff was working. Thus it was not up to Plaintiff to show that this was really just a pretext for her being retaliated against.
“If the proffered reason was legitimate and nondiscriminatory, then the plaintiff must meet the proffered reason head on and rebut it, and cannot succeed by simply quarreling with the wisdom of that reason.” (cites omitted). Id. In the case at hand, Plaintiff did not do this. She could not fight and disprove the Defendant’s business reasons for her firing. Defendant sold the division Plaintiff worked in to another company. This is a classic ‘reduction-in force’ case. Plaintiff was not replace and her duties were redistributed to current employees, two of who are female.
If you have been involved in a sex discrimination and retaliation discrimination case that you would like to find out the answers to, please call and speak to sex discrimination and retaliation discrimination lawyers Andrew S. Alitowski or William Ryan Moore at 888-892-5164. We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!

Broward Personal Injury Attorneys: Loss of Consciousness While Driving

Wed, 14 Jul 2010 19:33:16 -0500

Negligence in Motor Vehicle Accidents Where Defendant Involuntarily Loses Control Due to an Unexpected Loss in Capacity or Consciousness

As a general rule, the operator of an automobile or other vessel, who unexpectedly loses consciousness or becomes incapacitated, is not chargeable with negligence as a result of his or her loss of control. It is not even simple negligence if one has a sudden
attack, loses control of his car, and as a result causes an accident if he or she had no premonition or warning. To establish the defense of sudden and unexpected loss of capacity or consciousness, the defendant must prove each of the following:

1. The defendant suffered a loss of consciousness or capacity.
2. The loss of consciousness or capacity occurred before the defendant's purportedly
negligent conduct.
3. The loss of consciousness was sudden.
4. The loss of consciousness or capacity was neither foreseen or foreseeable.

In Abreu v. F.E. Development Recycling, Inc., et al., the driver of a motor vehicle suffered a brain aneurism and lost consciousness causing a collision which injured the Plaintiff. Defendants in the action filed a motion for summary judgment based upon an affidavit from a medical expert that purported that “it would have been impossible for the driver to know prior to the accident that he an intercranial aneurism.” The trial court granted Defendants motion for summary judgment and Plaintiff appealed.

The Fifth District Court of Appeal reversed and remanded back to the trial court for further proceedings. The appellate court found that there was a genuine issue of material fact relating to whether or not Defendant driver’s loss of consciousness was foreseeable, how suddenly he lost consciousness, and whether he had any premonition or warning. Thus, summary judgment was inappropriate.

The trial court record indicated that there was medical documentation indicating that the Defendant driver suffered from a vascular disease and that he was not receiving proper care because he did not follow medical recommendations for medication and to stop smoking. Another medical report submitted to the trial court indicated that Defendant driver had a history of an aneurysm and that it was recommended that driver have an angiography due to “a known history of cerebral aneurysm.” Furthermore, on the day of the accident in question, Defendant driver had a headache for several hours preceding his loss of consciousness and reported that his head was spinning. The medical records indicated that Defendant driver tried to drive home but started having blurry vision that impaired ability to see and that he felt he may pass out.

A motion for summary judgment alleges that there is no genuine issue of material fact to be resolved by the trier of fact and that the moving party is entitled to a judgment as a matter of law. This evidence of Defendant driver’s medical history and symptoms which occurred on the date of the collision creates a genuine issue fact of whether or not the Defendant driver’s aneurysm was foreseeable. Thus, summary judgment was inappropriate.

South Florida Overtime Lawyers: Overtime & Retaliation

Wed, 14 Jul 2010 15:43:20 -0500

Florida overtime attorneys Alitowksi & Moore provide answers to questions about employment law.

Overtime case Regarding Dozer Operator in Florida.

Recently, in February of 2010, the United States District Court for the Middle District of Florida decided a case that dealt with the Fair Labor Standards Act (FLSA) for unpaid overtime wages and retaliation claim. (See Bond v. Ripa & Associates, LLC, 2010 WL 457324 (M.D.Fla.). In Bond, Plaintiff worked for a Tampa-based civil construction company from June 2002 through August 2008. He was a foreman then Assistant Superintendent then back to a Foreman and finally he was fired because of a valid reduction in force firing by the company because the business was slow. Id.
On October 15, 2008, Plaintiff filed his complaint for unpaid overtime and for retaliation. As stated, an employee is “generally entitled to receive overtime pay at one and one-half times their regular rate for all hours worked in excess of forty per week as provided by the FLSA.” (cites omitted). Id. “Exempted from overtime pay requirements is “any employee employed in a bona fide executive, administrative, or professional capacity.” (cites omitted). Id.
“To qualify for the executive exemption an employee must: 1) be compensated on a salary basis at a rate of not less than $455 per week; 2) be an employee who “primary duty” is management of the enterprise that employs him, or a customarily recognized department or subdivision thereof; 3) customarily and regularly direct the work of two or more other employees; and 4) have the authority to hire or fire other employees or whose suggestions and recommendation as to the hiring, firing, advancement, promotion or other change of status of other employees are given “particular weight.” (cites omitted). Id.
In this case, Plaintiff concedes that the first and third requirement are met. He does argue that the other two are not. Id. As to the “primary duty,” the factors to be considered include: “1) the amount of time spent performing management duties; 2) the relative importance of the management duties compared with other types of duties; 3) the frequency with which an employee may exercise discretionary powers; 4) the employee’s relative freedom from direct supervision; and 5) the relationship between the employee’s salary and the wages paid to other employees for the kind of non-management work performed by the employee.” (cites omitted). Id. One must look beyond the employee’s title and look at the specific duties performed by the employee. Id.
Pursuant to Plaintiff’s deposition, Plaintiff in this overtime case spent 80% of his time running heavy equipment, a non-managerial duty. Id. “An employee who does not spend more than 50% of their time performing exempt duties may, nonetheless, meet the primary duty requirement if the other factors support such a conclusion. (cites omitted). Id. “However, where an employee spends the majority of his time on non-exempt work and has admittedly few managerial-type obligations, there is at least a factual question as to whether the non-exempt duties are comparatively more important than the exempt duties.” Id. Plaintiff testified that his non-managerial duties took up most of his time and that he infrequently exercised his discretion. Id.
As to an Administrative Exemption for FLSA overtime, to qualify an employee must: “1) be compensated on a salary basis at a rate of not less than $455 per week; 2) be an employee whose primary duty is the performance of office or non-manual labor directly related to the management or general business operation of the employer or its customers; and 3) be an employee whose primary duty included the exercise of discretion and independent judgment with respect to matters of significance.” (cites omitted). Id.
As before, in the case at hand, Plaintiff argues that the Florida unpaid overtime wages he was entitled to were not defeated by the Administrative Exemption. He was not an Administrator. But, since there were questions of fact, the Defendant’s Motion for Summary Judgment was denied. Id.
As for the overtime retaliation claim, under the FLSA, “a plaintiff must show “1) that he engaged in an activity protected by the FLSA that was known to his employer; 2) that he suffered an adverse employment action, and 3) that there is a causal connection between his participation in the statutorily-protected activity and the adverse employment action.”” (cites omitted). Id. As to this FLSA claim, Plaintiff’s claim was dismissed because he did not put forth any evidence that showed that his protected activity was known to his employer or that there was a causal connection. Id. And, the Court when on to say, even if he could prove it, the defendant had a legitimate reason for firing him in that his job was eliminated or consolidated due to a severe decrease in work. Id.
If you have been involved in an Florida FLSA overtime unpaid wages case that you would like to find out the answers to, please call and speak to Florida FLSA overtime unpaid wages lawyers Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!

Florida Overtime Attorneys: Forklift Technician in Florida

Tue, 13 Jul 2010 15:37:06 -0500

Recently, in April of 2010, the United States District Court for the Southern District of Florida decided a case that dealt with the Fair Labor Standards Act (FLSA) for unpaid overtime wages and the issue of independent contractor versus employee. (See Olson v. Star Lift Inc., 2010 WL 17490694 (S.D.Fla.).

Florida overtime attorneys Alitowski & Moore provide updates to Florida employment law on a weekly basis. In Olson, the trial that was held was a bench trial. Id. The Court found for the Defendant and the reasoning is as follows.
Defendant is a forklift repair company. It’s sales were at least $500,000 for the relevant period of time. Id. One of Defendant’s clients is Caterpillar which ships products worldwide. Caterpillar had about 70-80 forklift which it used to load and unload the products it ships. The forklifts themselves were not moved in commerce. Plaintiff did not use the forklift to load or unload products, he just repaired and maintained the forklifts. Id. Further, Defendants did not produce or manufacture any goods. Id. None of the forklifts fixed by Plaintiff were ever shipped out of Florida and no evidence that Defendants bought or used parts purchased outside of Florida. Id. The Defendant provided all its workers, even clerical workers, with 1099 independent contractor tax returns rather than W-2’s. Id.
Defendants told Plaintiff where to work, when to work, and how to do the job. Id. The type of work Plaintiff did required skill but could be learned in 2 ½ months of on the job training. Id. No evidence that Plaintiff was involved in profit and loss and Plaintiff could not employee his own workers. Id. Defendant purchased the tools for the Plaintiff but Plaintiff would have to pay them back. Id. Also, Plaintiff had to wear a Defendant uniform. Id.
In the FLSA overtime case at hand, the time records were not correct. Plaintiff would put down times that were inaccurate because he was told to do so based on the job he was doing. Id. But, the Court surmised that this did not matter in that the evidence showed that Plaintiff never did work more than 40 hours per week. Id.
“The FLSA applies to any employees who is “engaged in commerce or in the production of goods for commerce,” regardless of whether the enterprise that employs him is engaged in commerce under the statute.” (cites omitted). Id. (known as individual coverage). “The FLSA applies to any employer engaged in “enterprise engaged in commerce or in the production of goods for commerce” (cites omitted). Id. (known as enterprise coverage). “For an employee to be ‘engaged in commerce’ under the FLSA, he must be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.” (cites omitted). Id.
“Where employees’ activities are related to interstate instrumentalities or facilities, such as bridges, canals and roads, courts have used a practical test to determine whether they are ‘engaged in commerce.’ The test is ‘whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity.’” (cites omitted). Id.
This Florida jurisdiction “has consistently held that the work of maintenance employees in the office buildings occupied by tenants a substantial number of whom are there engaged wholly or in part in interstate commerce, but who do not there produce goods for interstate commerce, is too remote from the ‘in commerce’ activities of such tenants as to cause such employees to be covered by the Act.” (cites omitted). Id. Thus, in that Plaintiff never operated the forklifts to load or unload; in that Plaintiff’s work was just to repair forklifts that did not move in interstate commerce themselves, it appears that Plaintiff’s repair and maintenance work represented an “isolated local activity” which indirectly affects commerce and does not entitle him to individual coverage.” (cites omitted). Id.
“For the purpose of enterprise coverage, the FLSA defines an “enterprise engaged in commerce or in the production of goods for commerce” as an entries that “has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and that “is an enterprise whose annual gross volume of sales made or business done is not less than $500,000.”” (cites omitted). Id.
Further, the FLSA overtime provisions only apply to employees and not to independent contractors. Id. The Courts use a 6 part test to determine if the person should be considered an employee instead of an independent contractor. The factors include: “1) the nature and degree of the alleged employees’ control as to the manner in which the work is to be performed, 2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill, 3) the alleged employee’s investment in equipment or materials required for his task, or his employment of workers, 4) whether the service rendered requires a special skill, 5) the degree of permanency and duration of the working relationship, and 6) the extent to which the service rendered is an integral part of the alleged employer’s business.” (cites omitted). Id.
In this Florida overtime case, numerous factors weighed in Plaintiff’s favor that he was an employee. Id. Defendants controlled the time he went to work and how long when worked. The Defendants made him wear Defendants’ uniform and provided him with a van and gas. Also, Plaintiff was unable to hire workers to help him and the skills involved were simple enough to be learned on the job; with these services being an integral part of Defendant’s business. After weighing the factors, the Court held that Plaintiff was in fact an employee. Id.
But, the Court held noted that it was Plaintiff’s burden in this Florida overtime FLSA case to prove that he performed work for which he was improperly compensated. And, the Court noted, that Plaintiff did not meet his burden, thus Court found for the Defendants and dismissed the case.
If you have been involved in a Florida FLSA overtime unpaid wages case that you would like to find out the answers to, please call and speak to Florida FLSA overtime unpaid wages lawyers Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!

Broward Injury Attorneys on Governmental Immunity for Ocean Drownings

Wed, 30 Jun 2010 20:41:59 -0500

The State of Florida, through its Legislature, has recognized that the varying conditions of Florida’s public beaches and coastal area can pose a significant risk to the safety of the general public. As such, legislation was passed in an effort to notify the public of dangers and to encourage beach-goers to exercise caution when certain conditions exist. The Department of Environmental Protections, through the Coastal Management Program, oversees the uniform warning and safety flag program at all areas of public access. The purpose is to encourage the display of uniform warnings and safety flags at public beaches.
The Florida Legislature has also enacted governmental immunity to protect the State of Florida from liability from accidental injury and death. Due to the inherent danger of constantly changing surf and other naturally occurring conditions along Florida's coast, the state, state agencies, local and regional government entities or authorities, and their individual employees and agents, shall not be held liable for any injury or loss of life caused by changing surf and other naturally occurring conditions along coastal areas. This immunity is preserved regardless of whether or not uniform warning and safety flags or notification signs developed by the department are displayed or posted.
For more information on personal injury matters, contact our Broward accident attorneys today.

Article contributed by attorney Denise Grass

Florida Racial Discrimination: Temp Male Nurse

Wed, 30 Jun 2010 20:35:54 -0500

Racial Discrimination of Temp Male Nurse.

For Florida race discrimination questions contact our employment attorneys today.

In April of 2010, the United States Court of Appeals for the Eleventh Circuit decided a case that involved racial discrimination under 42 USC 1981 claims based on race. This case was Williamson v. Adventist Health System/Sunbelt, Inc., 2010 WL 1444574 (C.A.11(Fla.)). In Williamson, the Plaintiff worked as a temporary licensed practical nurse for the named defendants. Plaintiff was a Jamaican-born black male. Id. Plaintiff was fired after he refused to perform janitorial duties. Id. Plaintiff claims he was subject to racial epithets before he was fired and that other supervisors commented on his race and national origin more than once. Id. Defendants claim that Plaintiff was fired for failure to procure prescribed medicine for a patient during his shirt. Id. Plaintiff claims this was true but that other non-minority nurses were not terminated when their performance was deficient. Id.
Plaintiff first contends in his race discrimination case that one of the defendants is liable under a “cat’s paw” theory. Id. A cat’s paw theory may apply when a biased actor recommends that an adverse employment action be taken against an employee, but the biased actor is not the ultimate decision-maker. (cites omitted). Id. As to the defendant that Plaintiff alleged this against, the Court held that there was no such evidence and thus dismissed the race case against this defendant. Id.
Title VII protects an employee from race discrimination. “When a Plaintiff uses circumstantial evidence in an attempt to prove discrimination or retaliation under Title VII, we may apply the burden shifting approach articulated in McDonnell Douglas. (cites omitted). Under this framework, “a plaintiff has the initial burden to establish a prima facie case of discrimination. To establish a prima facie case of race discrimination under Title VII, a plaintiff must show that 1) he is a member of a protected class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4) he was.. treated less favorably than a similarly-situated individual outside his protected class.” (cites omitted). Id.
Further, a plaintiff may establish his race discrimination case through direct evidence. Id. Direct evidence is evidence “which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Id.
As to the evidence presented in this race discrimination case, the Court held that the racial epithet did not constitute direct evidence. Further, the refusal to perform the assigned job duties was a legitimate non-discriminatory reason for Plaintiff’s firing. Also, the few jokes made did not rise to the level of direct evidence needed. Thus, the Court then looked to see if there was enough if looked at with circumstantial evidence. And to this the Court said no. In that the Defendant gave a legitimate non-discriminatory reason for the firing and in that Plaintiff could not rebut it, the Court held that Plaintiff failed to show by circumstantial evidence that the firing was pretextual and thus Plaintiff’s discrimination case was dismissed in its entirety.
If you have been involved in a racial discrimination case that you would like to find out the answers to, please call and speak to racial discrimination lawyers Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.

For Florida overtime compensation claims, please visit our website.

If you are injured…Ask Andrew!!!

Broward County Injury Attorneys Discuss Liability for Dog Bites Under Florida Law

Tue, 29 Jun 2010 20:38:18 -0500

The Broward County injury lawyers of Alitowski & Moore write articles on liability issues weekly. There is never a fee to discuss your case with us.

The Florida Legislature found that dangerous dogs are an increasingly serious and widespread threat to the safety and welfare of the people of Florida. This holds true because of unprovoked attacks which cause injury to both persons and domestic animals. These attacks can often be attributable to the failure of dog owners to properly train and control their dogs. As such, the Legislature enacted certain laws dealing expressly with the topic of dangerous dogs as referenced in Florida Statute Section 767.

Florida law makes a dog owner liable for damages regardless of the former viciousness or dangerous propensities of the dog and regardless of the owner’s prior knowledge of such viciousness. A dog owner can prevent liability for dog bites if the owner prominently displays a readable sign with the words “Bad Dog.” A dog owner is also protected against liability for trespassers who are not lawfully on the premises. These exceptions do not apply to persons under the age of six.

If the injured person was found to be negligent in any way that proximately contributed to the dog bite, the liability of the dog owner will be reduced according to the percentage of fault of the injured person.

In addition to civil liability, dog owners can be punished criminally with respect to injuries imposed by their dangerous dogs. If a dog that was previously declared dangerous attacks or bites a person or a domestic animal without provocation, the owner is guilty of a first-degree misdemeanor. If a dog that was previously declared dangerous attacks and causes severe injury or death of a person, the owner can be charged with a third-degree felony. If a dog that has not been declared dangerous attacks and causes severe injury to person, the owner can be charged with a second degree misdemeanor if it is proven that the owner had prior knowledge of the dog’s dangerous propensities and demonstrated a reckless disregard for its dangerous propensities. Under all instances, the dog must immediately be confiscated by animal control and placed in quarantine for ten business days. The owner must be given written notice and has then ten days to request a hearing. If the owner fails to request a hearing, the dog will be humanely destroyed. The owner is liable for all boarding costs in order to keep the dog during the appeal procedure.
The Legislature in Section 767.11 broadly defines a dangerous dog as one which:
(a) Has aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being on pubic or private property;
(b) Has more than once severely injured or killed a domestic animal while off the owner’s property
(c) Has been used primarily or in part for the purpose of dog fighting or is a dog trained for dog fighting; or
(d) Has, when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, provided that such actions are attested to in a sworn statement by one or more persons and dutifully investigated by the appropriate authority
It is important to note that a dog owner is not liable for injures that occur while the injured party is engaged in criminal activity or is attempting to engage in criminal activity at the time of the attack.

The Broward County injury attorneys of Alitowski & Moore are available to discuss your case at any time. Call us today.

Child killed in Diney World bus accident

Thu, 01 Apr 2010 23:16:14 -0500

Child killed in bus accident owned by Disney
A child was killed yesterday in an accident involving a Disney transport vehicle. Eyewitness accounts claim that the boy was crossing into the street from the sidewalk on which he was riding when he collided first into the side of the vehicle and then under. He was killed instantly at only ten years old. A friend riding with him just prior observed the accident and is said to be under sever emotional distress. A representative for Disney World stated publicly that steps will be taken to provide for the family despite the apparent lack of negligence on the part of any Disney employee.

Disney Bus Accident

City of Hollywood to Consider Allowing Dogs on Beach

Thu, 01 Apr 2010 18:01:33 -0500

Parks & recreation may possibly allow dogs on boardwalk area. Other animals will not be considered and will remain banned from the area. If approved, people will be allowed to dine with their pets at outside areas along the boardwalk.

Sun-Sentinel Article