May 13, 2015

Boating Accidents Surge in the Summer Months

Every year, boating accidents make headlines in the Jacksonville area as the waters get warmer and people head out for fun on our abundant waterways. Although boating accidents occur less frequently than automobile accidents, they tend to result in more serious injuries. With more than one million registered boats, Florida has the highest number of boating fatalities in the nation according to the Florida Fish and Wildlife Conservation Commission.

Just last month, a 9-year-old boy drowned when he was thrown from a boat into the St. Johns River during a fishing trip near East Palatka in Putnam County. The child and his grandmother’s boyfriend were knocked into the water when their 14-foot jonboat capsized after it was hit by the wake of a larger boat in the river near the U.S. 17 Memorial Bridge.

In 2009, a serious boating accident near Jacksonville left five people dead. The tragedy unfolded when an overcrowded 22-foot Crownline pleasure boat slammed into a moored 25-foot tugboat on the Intracoastal Waterway at Roscoe Boulevard South near Jacksonville Beach. The accident injured nine people, five from the Jacksonville area and four from California.

Personal watercraft, or jet skis, are among the most dangerous vessels. In 2010, a man from Jacksonville lost his life on a jet ski on Kingsley Lake, located about thirty minutes to the southwest of Jacksonville. The Florida Fish and Wildlife Conservation Commission indicated it was dark when Roche was riding and he he crashed the jet ski into another boat. Florida law prohibits the operation of personal watercraft from half an hour after sunset to half an hour before sunrise even if navigational lights are used. In addition, there are age restrictions that apply to PWCs that do not apply to other vessels.

Boating accidents can occur in a number of ways and a mistake can quickly become a disaster on a boat. They include:

• Inexperienced or negligent boat operation;
• Operating a boat under the influence of alcohol or drugs;
• Excess speed, leading to collisions;
• Capsizing or sinking of a boat;
• Being thrown overboard or falling overboard from a vessel;
• Distracted or careless boat driving;
• Gasoline fires or explosions; and
• Overcrowded vessels.

The rules for boating in Florida are established by the Florida Fish and Wildlife Conservation Commission which are intended to prevent the careless and reckless operation of vessels. Anyone found to be operating a boat with “willful disregard for the safety of persons or property” will be cited for reckless operation, a first-degree misdemeanor.

The commission points out all boat operators are responsible for operating their vessels in a “reasonable and prudent manner” with regard for other boats, posted restrictions, the presence of a divers-down flag and other relevant circumstances so as not to endanger people or property.

There are also rules about speed on the water. Any vessel operating in a speed zone that is posted with "Idle Speed - No Wake" must operate at the minimum speed that allows the vessel to maintain headway with the ability to effectively steer the vessel.

Vessels operating in a speed zone posted with "Slow Down - Minimum Wake" are required to operate fully off plane and with the boat's hull settled in the water. The commission states a vessel's wake must not be excessive nor create a hazard to other vessels.

Continue reading "Boating Accidents Surge in the Summer Months" »

May 7, 2015

Florida Lawmakers Seek to Enact New Laws to Improve Substandard Care at Assisted Living Facilities

In 2011, the Miami Herald’s investigative report "Neglected to Death" revealed the stark and horrific reality of life and death for many residents in Florida’s nursing homes and assisted living facilities.

Four years later, Florida legislators are still struggling to find a legislative framework to provide adequate oversight at the assisted living facilities that serve more than 86,000 Florida senior residents. In late April, the Florida Senate created a proposal to “improve enforcement and oversight” at assisted living facilities.

Enacting effective reform is a necessary task. The Miami Herald’s series, that followed a year-long investigation, was a stark indictment on Florida's assisted living facilities. Specifically, it turned up at least 70 questionable deaths in Florida over a 10 year period, including:

• A 71-year-old who was killed when left in a bathtub of scalding water.
• A 74-year-old woman who was strapped so tightly the restraints cut into her skin, causing a blood clot that killed her.
• A 75 year-old Alzheimer's patient who was allowed to walk out of a facility for the fourth time. His body was later found dismembered by an alligator.
• A number for residents who died because of under medication or over medication.

The elder abuse cases uncovered in the investigation stretched from Miami to Jacksonville and through the Florida Panhandle. Questionable deaths were found to have occurred in facilities of all sizes ranging from 100 bed to 6 bed facilities.

The new law would increase oversight at facilities with a poor record, although critics say it may lead to a more lax regime at other homes. Assisted living facilities in Florida are inspected every two years under existing laws. The new law would subject them to more frequent inspections if they are found to have a major violation. However, homes with a good track record will continue to be inspected only every two years.

Several issues raised debate and opposition from the the Florida Assisted Living Association. One of its strongest objections related to the initiation of a State rating system similar to the five star rating system used with respect to nursing homes in Florida. The idea behind the rating program was to help consumers pick the best assisted living facility for their loved ones in their twilight years.

Some resident care advocates voiced concern with the bill. Brian Lee, director of Families for Better Care, an advocacy group, warned that parts of the bill could shrink oversight of the industry. Lee said people who live in these specialty licensed assisted living facilities need many services to manage their care and cutting back oversight “would escalate their potential for harm.”

Reform is of interest to Jacksonville which has nearly 100 assisted living facilities and an aging population. Although most of these facilities provide appropriate care, elder abuse can and does occur. The types of abuse the can occur include infections, bed sores, falls, malnutrition, neglect, abandonment, sexual assault, physical and mental abuse and overmedication and undermedication.

The National Center on Elder Abuse estimates between 1 and 2 million Americans age 65 or older have been hurt, exploited, or otherwise mistreated by someone on whom they depended for care or protection and more than a third of the country’s nursing homes have violated the laws intended to protect elderly people. Florida has a large senior citizen population, making the issue of reducing nursing home abuse and neglect in Florida of the utmost importance.

Continue reading "Florida Lawmakers Seek to Enact New Laws to Improve Substandard Care at Assisted Living Facilities" »

January 19, 2015

"Left Turn" Accidents and Motorcycles: Yet Another Motorcycle Fatality in Jacksonville

Saturday night, a motorcyclist was killed on Jacksonville's westside when an on-coming sport utility vehicle turned left in front of the motorcyclist's path. The car vs. motorcycle accident happened at the intersection of Plymouth Street and Cassat Avenue.

Left turn accidents are the second most common type of car accidents that our law firm sees, with rear-end accidents, of course, being the most common. However, left turn accidents are usually much worse because the person going straight is hit head-on typically resulting in very serious injuries.

Approximately forty percent of the nearly six million car crashes that happen in the United States annually happen at intersections. In 2008 alone, over 7000 left turn accidents were fatal and over 730,000 resulted in personal injuries.

Motorcyclists get the worst of left turn accidents for two reasons. First, left turn accidents happen because the driver of the turning car fails to see the oncoming vehicle or fails to estimate whether there is sufficient time to make the turn in front of the oncoming vehicle. Motorcycles, being smaller, are harder to see. Also, it can be harder for drivers to appreciate how fast a motorcycle is traveling.

Second, motorcyclists almost always suffer devastating, if not fatal, injuries in a left turn accident. In such an accident, the motorcycle collides with the passenger side of the turning car. The long profile of the side of a car or SUV leaves little opportunity for the motorcyclist to swerve either left or right to avoid a crash. The impact between the motorcycle and the side of a car usually sends the motorcyclist head first into the car or over the car into the roadway and other traffic.

The driver making the left turn is almost always at fault for these accidents. This is because the turning driver is required to yield to oncoming traffic. Often, a the turning driver will claim that the oncoming vehicle was traveling much faster than the speed limit and that he or she would have otherwise had time to clear the intersection. This defense rarely succeeds, however, as the turning driver has to admit in such a circumstance that he or she saw the oncoming vehicle. Upon seeing the oncoming vehicle and observing it properly before making the turn should give the turning driver the opportunity to observe its speed.

Some intersections have a traffic control device that provides a "green arrow" signal allowing for a safe left turn by stopping oncoming traffic. Sometimes, the left turning driver will claim that he or she had a green arrow and will claim that the oncoming driver ran a red light. If it is a busy intersection, there will often be witnesses who can settle the dispute. Otherwise, it becomes a "he said, she said" type of dispute.

Engineers have struggled for years in an attempt to avoid left turns that cross oncoming traffic. Some of those efforts are chronicled in an article titled "Don't Turn Left!" However, the alternate designs are expensive and have other drawbacks that ensure that most intersections will continue to have left turn concerns.


Continue reading ""Left Turn" Accidents and Motorcycles: Yet Another Motorcycle Fatality in Jacksonville" »

December 18, 2014

Spate of Hit and Run Accidents in Jacksonville Highlights the Need to Buy Uninsured Motorist Insurance

Our news outlets have been reporting on an unusually high number of hit and run auto accidents in Jacksonville and Jacksonville Beach during the last few months. Hopefully, this is just a coincidence and not a long term trend. Just today, it was reported that a man received a sixty day sentence for a hit and run accident that caused a pedestrian's death on Jacksonville's northside.

Hit and run accidents result in a devastating circumstance for victims. There is, however, something you can do to protect yourself.

Drivers who leave the scene of an auto accident may do so for a myriad of reasons. The first that always comes to mind is that the driver was drunk or otherwise intoxicated at the time of the accident and fled to avoid manslaughter charges and a long prison sentence. Others may flee an accident because they were texting and driving, because there is a warrant out for their arrest or because they have no automobile insurance.

No matter what the reason, the victim and his or her family members are left in a horrible predicament. Without being able to identify the driver or owner of the car that caused the accident, the injured person is left without any ability to obtain compensation for medical bills, lost wages, disability and pain and suffering . . . unless, he or she purchased uninsured motorist coverage.

Uninsured motorist coverage is something you can select when buying car insurance. It is optional and not required by Florida law. Sometimes people think they have uninsured motorist coverage because they understand they purchased "full coverage." For some reason, the phrase "full coverage" gets used a lot, and it is really a dangerous misnomer. "Full coverage" almost means just the opposite, which is the absolute minimum coverage allowed by law - and does not include uninsured motorist coverage.

Uninsured motorist coverage (usually referred to as U.M. coverage) provides benefits to you in the event you are injured in a car accident caused by a driver that has no insurance or has too little insurance to cover your injuries. It also applies when the driver or owner of the at-fault car cannot be located. For hit and run accidents in which the at-fault driver is never located, uninsured motorist coverage is typically the only source for making a recovery.

I carry $1,000,000.00 in uninsured motorist coverage. The cost for this coverage for me is only a few hundred dollars per policy period. As a car accident lawyer, I see a lot of clients involved in accidents where the at-fault driver has no bodily injury coverage. In fact, some of the worst drivers, especially drunk drivers, have no insurance at all. Some of them do not even have a driver's license.

When a client comes to see me with serious injuries, mounting medical expenses and lost wages, it is very difficult to have to tell them that they have no claim to pursue when the at-fault driver cannot be located or has no bodily injury coverage. My advice is to purchase as much uninsured motorist coverage as you can afford.

Continue reading "Spate of Hit and Run Accidents in Jacksonville Highlights the Need to Buy Uninsured Motorist Insurance" »

November 19, 2014

Changes in Florida's Nursing Home Laws: Restricting the Ability to Transfer or Renew a Nursing Home License if a Judgment Goes Unpaid

According to the 2010 census, not surprisingly, Florida is the state with the highest percentage of senior citizens with 17.3% of the population over the age of 65. It would follow that Florida has progressive laws ensuring the safety of its nursing home residents. Unfortunately, this is not the case.

For example, Florida law requires that nursing homes carry liability insurance for injuries or death resulting from nursing home neglect. Sound like a good idea? It is, however, the Florida Statutes do not require a certain minimum amount of coverage. As a result, nursing homes often carry insurance policies with less than $10,000.00 in coverage per home. Technically, one dollar in coverage satisfies the requirement of the statute. Think about it: every single owner of a vehicle must carry a minimum of $10,000.00 in coverage in the event of an accident, yet nursing homes - being paid to take care of a hundred or more vulnerable adults - do not.

Earlier this year, Florida revised its nursing home laws in several ways that impact claims for negligence, abuse or wrongful death against nursing homes.

For years, nursing homes in Florida have engaged in a "shell game" of corporate ownership. The nursing homes are typically broken into many limited liability companies - one for the licensee, one for a management company, and another for the owner of the real estate, just to name a few.

The owners (called "members") of each LLC are themselves LLCs, which in turn have other LLCs as their owners. The result is a myriad of interwoven and related companies, none of which are individually and ultimately responsible for the residents' injuries or deaths. Even worse, a large judgment against any one of the LLCs will result in that LLC becoming insolvent. At that point, if necessary, the LLC holding the license with the State of Florida could simply transfer the license to a new LLC. Not surprisingly, the new licensee usually turns out to be owned by the same people as before.

What is really going on here is that, with large chain nursing homes, decisions about how well the nursing home is staffed - which translates to how much money is spent - actually come from the corporate owners of the entire chain. However, these individuals can make these decisions without regard for liability because they are shielded by the complex maze of LLCs.

In the event their "profits over patients" motive is exposed to a jury, the resulting verdicts can be huge. However, the owners and decision makers have effectively "walled off" the one nursing home at issue and insulated the rest of their businesses from liability. If the owners are then allowed to transfer the license from such a nursing home to a new LLC that they create, while leaving the judgment unpaid, there becomes very little incentive for them to hire more nurses and provide better care.

The new law takes steps to avoid this injustice. Florida Statute Section 400.024 titled, Failure to satisfy a judgment or settlement agreement, provides that a licensee must pay a judgment, arbitration award or negotiated settlement within sixty days, or else the Agency for Healthcare Administration can revoke the nursing home's license, deny its renewal application or deny a change of ownership application.

Despite statements to the contrary from some nursing home operators, nursing homes are very profitable in Florida. One reason for this is that the total number of nursing home beds in the state is highly regulated. As a result, nursing home occupancy rates are close to 100%. Because of this, the new restriction in renewing or transferring a license will either result in payment to the plaintiff or the closing of the nursing home.

Continue reading "Changes in Florida's Nursing Home Laws: Restricting the Ability to Transfer or Renew a Nursing Home License if a Judgment Goes Unpaid" »

October 8, 2014

Ebola Quarantines: What Power Does the Government Have to Quarantine You?

Following the discovery of Ebola in the United States for the first time, the four persons most directly exposed to the infected person were quarantined without objection. However, another forty-four persons with less direct exposure were not quarantined, but rather are being monitored for the three week incubation period for the virus.

Should one of those forty-four persons come down with Ebola, a massive quarantine will surely follow. Using less than direct contact as the measure for whom to quarantine results in an exponential increase - think hundreds, if not thousands, of persons.

We have a demonstrated lack of places to house such persons as the four people quarantined in Texas are staying in a private home donated by a good samaritan. For safety's sake, doesn't every single person have to be quarantined separately? What if they aren't? It does not seem they did so with the four people in Texas.

What right does the government have to quarantine you against your will? Historically (dating back to the 1800s), the legal authority to civilly confine someone for quarantine purposes was left up to the individual states and the federal government was only given the authority to "assist" if needed. As "assist" is not the same as "initiate," the federal government was left without legal authority to quarantine.

As a result, a federal law was enacted that allows the federal government to civilly confine persons to prevent the spread of communicable diseases. Under the principles of federalism established by our Constitution, the federal government has limited authority to regulate such issues. The "commerce clause" of the Constitution allows the federal government to "regulate commerce with foreign nations, and among the several States, and with the Indian Tribes."

What constitutes a regulation of "commerce ... among the several States" has been a topic of countless legal opinions. Clearly, "commerce" is not the major factor at issue in a quarantine scenario. However, ushered in by "New Deal" legislation, the courts have interpreted this standard very liberally, allowing the federal government to regulate things with only a distant impact on interstate commerce. Although the Rehnquist era of the United States Supreme Court reigned in the extremely broad reach of the commerce clause, it is still likely that the Unites States Supreme Court would find that preventing the spread of such a dreaded disease affects interstate commerce sufficiently to invoke the commerce clause.

Given the federal government's likely ability to quarantine persons against their will, the next layer of challenges will focus on the manner in which the quarantine is carried out. What if you dispute that even a tenuous connection to an infected person exists? For example, what if they confuse you with another person with the same name as yours? Can you be detained at gunpoint?

Let's hope this scenario does not play out. If it does, the government's authority to detain persons against their will, and the manner in which the government handles the quarantines, will face unprecedented legal challenges.

Continue reading "Ebola Quarantines: What Power Does the Government Have to Quarantine You?" »

October 2, 2014

Logging Truck Accident in Starke Highlights Dangers of Entrusting Trucks to Dangerous Drivers

On Monday, a logging truck owned by a Palatka company slammed into the rear of a school bus carrying children in Bradford County, near Starke, Florida. Seven children and the bus driver were taken to the hospital with injuries. One of the students' injuries was categorized as "serious," and the two occupants of the logging truck suffered serious injuries as well.

Witnesses say the truck did not apply its brakes prior to impact. The bus was stopped to drop off students at the time of the collision. The bus driver indicated she saw the logging truck coming at a high rate of speed and that she tried to avoid a collision by accelerating from the stop, but she was not able to avoid impact. The rear of the bus was demolished.

According the the Florida Highway Patrol, it received several calls before the crash that the semi-truck was being driven erratically for miles before the collision. In fact, Florida Highway Patrol officers were on the way to intercept the truck at the time the collision happened. A female passenger in the truck, believed to be the driver's wife, was found to have been naked at the time of the crash.

Earlier the same day, the truck driver was pulled over by the Nassau County Sheriff's Office. Several safety violations were found, but the violations were not serious enough to keep the truck off of the road.

The driver has a lengthy record of arrests in Putnam County, including theft, burglary and domestic violence.

Several Florida legal principles are highlighted by this incident. First, the driver of the truck was unquestionably driving while distracted. Driving while distracted can lead to punitive damages in Florida. For example, a vehicle driver who causes an accident while texting can be liable for punitive damages in addition to owing injured victims reimbursement for their losses. It seems that the driver of this truck was distracted much more so than a texting driver.

Florida law also provides that the owner of any vehicle involved in a collision is liable for injuries caused by the negligence of the driver. In this case, if a company owned the logging truck, it will be held liable for the injuries.

Furthermore, the person working for the company that made the decision to entrust the vehicle to this driver can have personal liability if the decision to do so was negligent. Given the arrest record of this driver, and the potential that he has a poor driving record as well, the person making the decision to entrust the truck to this driver will likely have personal liability for the injuries and other damages suffered in this collision.

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September 5, 2014

Florida Circuit Court Determines that Florida's Workers' Compensation Law is Unconstitutional

On August 13th, a Circuit Court judge in Miami ruled that Florida's workers' compensation laws are unconstitutional because they fail to provide compensation for permanent partial disability and require workers to pay a portion of their medical care after reaching "maximum medical improvement."

A person that is injured on the job in Florida receives workers' compensation benefits as the exclusive remedy against his or her employer. The remedy is exclusive as Florida's workers' compensation statutes replace an injured worker's ability to sue his or her employer for negligence. Of concern is that the workers' compensation statutory scheme strictly limits the amount of compensation provided for partial disabilities and resulting medical expenses.

The right to file a lawsuit to seek redress for any alleged harm is protected by the due process clause (the 14th amendment) of the United States Constitution and by the right to jury trial and access to courts provisions of the Florida Constitution. Before the enactment of Florida's workers' compensation statutes, injured workers had the right to sue their employers for negligence. Until 1970, an injured employee could "opt-out" of the workers' compensation scheme and sue in negligence. However, the statutes were amended in 1970 making workers' compensation the exclusive remedy for workers' claims against their employers.

In 1973, the Florida Supreme Court held that the right to file a lawsuit for injuries can only be taken away when a "reasonable alternative" is provided to take its place.

For example, a person that suffers a temporary injury in an automobile accident in Florida is not allowed to sue the at-fault driver for such injury because Florida's personal injury protection statutes provide medical and lost wage benefits via mandatory insurance coverage. The Florida Supreme Court has ruled that the loss of the right to file suit for such temporary injuries is constitutional because the mandatory insurance coverage provides a "reasonable alternative" to filing suit. While the "reasonableness" of this alternative is debatable, there is at least some alternative benefit provided by the personal injury protection scheme.

On numerous occasions, courts have held that Florida's workers' compensation scheme provides a reasonable alternative to litigation. However, major changes were enacted in 2003. Among those changes was the elimination of compensation for permanent partial disability. For example, if a worker suffers an injury that prevents his or her ability to continue performing physical labor, but does not prevent them from performing office work, then that worker is not provided compensation for that partial loss of earning power.

The ruling in the Miami Circuit Court does not have precedential effect on cases occurring in Jacksonville; however, it provides well reasoned support for the constitutional challenge of the workers' compensation statutes expected to be decided by the Florida Supreme Court in the near future.

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August 4, 2014

Jacksonville Court Decisions Regarding the Discoverability of a Personal Injury Client's Facebook Posts

The practice of law is ever-changing. An attorney must never sit on his or heels content that years of experience have provided the knowledge required to remain on top of the game. As technology progresses at an exponential pace, the law tries to keep up.

With the advent and popularity of social media - Facebook, Twitter, and Pinterest, to name a few - discovery issues regarding a defendant's ability to obtain information posted to these sites by an injured claimant have exploded. These issues often arise in personal injury cases in which defendants (those accused of causing the injuries) want to find out what an injured person has shared to his or her friends. This information can inform the defendant about the cause of an accident, and, more commonly, it can provide the defendant with information about the types of physical activities in which the injured person can still engage, and, more generally, about the quality of his or her life after the accident.

Not only are the defendants requesting screen shots of social media posts, they also commonly request passwords so they can access the person's page in the same manner as her or she would do. This type of request is clearly objectionable as the defendant would then be able to read private messages between the client and his or her friends, and, conceivably, his or her attorney as well.

In extreme instances, a defendant will request to examine the plaintiff's actual computer, telephone and any other device used to access the internet. The privacy implications are obvious. Although a plaintiff loses certain rights of privacy once a lawsuit is filed for injuries, such as those relating to medical records, private matters unrelated to the accident or injuries remain protected by Article I, Section 23, of the Florida Constitution.

What results is a balancing act through which judges must weigh these competing interests. Below, I have summarized some recent decisions addressing these issues.

A Duval County Circuit Court Judge recently held that a request for every single social media post made by a plaintiff before and after the accident was overly broad. In so doing, the Court indicated that a more narrow request that is tailored to the issues of the case accompanied with an agreement to keep the posts confidential would be permissible. In this regard, posts regarding the accident, resulting personal injuries or those relating to physical activities before and after the accident may be allowable.

In another case, a Duval County Circuit Court Judge ruled that all photographs posted by the plaintiff after the accident are properly discoverable. However, the Judge denied the defendant's request that the plaintiff produce his computer hard drive as this is a rather obvious infringement on the plaintiff's privacy rights. That the request for the hard drive was even made seems surprising, to say the least.

A Federal Magistrate for the United States District Court for the Middle District of Florida, Jacksonville Division, held that any photographs posted that depict the plaintiff after the accident can be obtained by the defendant. However, as with the decision regarding the hard drive discussed above, the Court held that the request for all devices is overly broad and would allow the defendant to "rummage at will through information that Plaintiff has limited from public view."

So far it appears that the Jacksonville area judges have come to the conclusion that a defendant is not entitled to all of the information an injured person posts to social media sites. Rather, photographs and other posts relevant to the issues of the case, especially those depicting physical activities, are discoverable. Personal injury plaintiffs should be made aware by their attorneys that such posts can give the wrong impression and should be avoided.

Continue reading "Jacksonville Court Decisions Regarding the Discoverability of a Personal Injury Client's Facebook Posts" »

July 17, 2014

Recent Florida First District Court of Appeal Decision Highlights Importance of Making Proper Objections at Trial

Florida's First District Court of Appeal hears the appeals for circuit court cases in Northeast Florida, including Jacksonville. It recently rendered a decision important for all trial lawyers in the state.

In a criminal case, dury jury selection, one of the venire (the pool of potential jurors) stated that he or she thought the accused had a prior criminal record. This was said in front of all of the other potential jurors. Obviously, for the attorney representing the defendant, this is an extremely damaging statement, whether it is true or not. Otherwise, the jury would most likely never be aware of the defendant's prior convictions. The prejudice that can result from this is obvious.

The defendant's attorney objected and asked the judge to strike the entire venire and start over with a new group of potential jurors. The court denied the motion. After the remainder of jury selection took place, the jurors were sworn in to serve. Prior to being sworn in the defense attorney did not renew the objection, perhaps believing that the prior objection sufficed.

Unfortunately for this defendant, the law in Florida requires that any objection to the jurors selected must be renewed prior to the panel being sworn in or else the objection is waived. As such, this jury was allowed to decide the case having heard that the defendant had a prior criminal record. The defendant was convicted. The appellate court held that the conviction could not be reversed because a second objection just prior to the jury being sworn in was not made. In my opinion, had that technicality been satisfied - the appellate court would have overturned the conviction.

This case highlights the many pitfalls in trying cases and the many hypertechnical details that can make the difference between justice and travesty. Trial is an extremely dynamic process that presents a minefield of potential errors that can subvert true justice from taking place. The burden on a trial lawyer is immense. The lawyer cannot lose focus for a second during trial - a difficult task, especially considering the long hours spent each day and night handling a multitude of details.

Because of these difficulties, we find the old adage "two heads are better than one" to be especially true in trial work. Any case worth trying is worth trying with two lawyers. There are always things one lawyer picks up on that the other attorney did not. When hiring a lawyer for your injury, insurance or nursing home case, ask whether he or she tries cases singlehandedly. Having more than one lawyer try your case could help prevent an unfortunate circumstance like the one experienced by the defendant in the above-referenced criminal case.

Having two lawyers does not increase the expense to clients in cases in which the clieint hired their attorney on a contingency basis - the percentage is the percentage regardless of the number of attorneys working on the case.

Continue reading "Recent Florida First District Court of Appeal Decision Highlights Importance of Making Proper Objections at Trial" »

July 3, 2014

Eleventh Circuit Court of Appeals in Boating Accident Case Allows Woman to Proceed in State Court

With the Fourth of July tomorrow, Jacksonville's waterways will be busy with boaters. With increased traffic comes the increased risk of boating accidents - especially since many boaters seem to think driving while operating a boat is appropriate. A recent decision by the Eleventh Circuit Cour of Appeals highlights the complexities of boating accident injury cases.

In its decision, the United States Eleventh Circuit Court of Appeals made an important ruling regarding maritime and admiralty personal injury cases. The Eleventh Circuit of appeals has apellate jurisdiction over cases originating in the federal district courts located in Florida.

The cases at issue originated from a boating accident that happened in October of 2011. A group was riding in a boat owned by a boat club. A boat club typically owns numerous boats and has many members. The members can reserve and use the boats for recreational boating.

On the day in question, the operator of the boat struck a large wake from another boat at a high rate of speed. The impact flung a woman passenger into the air. When she landed back on the boat, she suffered serious personal injuries.

After the women provided notice to the boat club of her intention to pursue a claim for her injuries, the boat club filed an admiralty limitation of liability act in federal court. Federal admiralty and maritime law allows the owner of a boat to limit exposure for injuries in a boating accident to the value of the vessel at issue. The approximate value of the vessel involved in this case was $95,000.00.

The admiralty limitation of liability laws are antiquated and especially out of place in the circumstances presented by this case. Nevertheless, the law stands and must be dealt with by any lawyer handling boating accident injury cases. After the initiation of the federal court action by the boat club, the injured woman’s lawyers sought to instead litigate the value of her case in state court.

Often, attorneys prefer to litigate personal injury cases in state court as opposed to federal court. This tends to be the case for several reasons. First, the ability to participate in who will be selected as jurors is extremely limited in federal cases. Further, in federal cases, expert witnesses that are going to be used at trail must provide detailed written reports. Any opinions not included in such reports will not be allowed at trial. This presents a mine field for a plaintiff’s attorney because at the time that the expert reports are to be produced, discovery is usually not complete and additional opinions may be necessary after additional discovery. In addition, as the defendant gets to disclose experts after the injured plaintiff, it gets the benefit of the plaintiff’s expert opinions before finalizing its own. It is much easier to include all necessary opinions upon first having the benefit of the plaintiff's expert opinions.

Given that the woman involved was the only person making a claim for personal injuries as a result of the boat accident, the federal court allowed the women to proceed in state court. The owner of the boat appealed, claiming that the action should proceed in federal court. The single claimant provision falls under the “saving to suitors” clause of the admiralty statutes. The appellate court held that the federal district court had broad discretion in remanding the case to state court.

In the event the injured woman received a judgment for her injuries that exceeded the value of the vessel, the federal case would then be reopened for determination of the applicability of the limitation of liability act.

This case highlights the procedural difficulties and pitfalls in handling personal injury cases resulting from boating accidents.

Recently, our firm handled a case of a young woman injured in an accident involving two jet skis operated on the St. Johns River in Jacksonville, Florida. The two jet skis, both owned by the same defendant, collided. The young woman who was injured was driving neither of the jet skis and, thus, bore no fault for whatsoever for her injuries. Unbelievably, the federal limitation of liability act applies to jet skis, which were valued at less than $10,000.00. However, the defendant failed to file its limitation of liability action in federal court within six months of being notified of the claim. In so doing, it waived its right to limit the value of her case to $10,000.00. By demonstrating this procedural deficiency to the federal district court, we were able to proceed with her claim seeking the full value of her injuries.

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May 22, 2014

Appellate Decision Clarifies Florida's Slip and Fall Statute

On April 30, 2014, the First District Court of Appeal reversed a trial court's ruling regarding the application of Florida Statute § 768.0755. This recently enacted statute essentially codifies Florida common law and requires that, in order to prevail on a personal injury slip and fall claim resulting from a "transitory substance" on the ground, the injured person must prove the defendant knew or should have known the substance was on the floor and should have cleaned it up before the fall occurred.

In almost all slip and fall injury cases that involve a slippery substance on the floor, there is no proof that the defendant was actually aware of the presence of the substance. This leaves the claimant with having to prove the defendant had "constructive notice," meaning the substance was present on the floor for a sufficient length of time that, had the defendant been properly inspecting the floors, it would have noticed it.

Typically, the "defendant" in a case like this is the owner or operator of a business open to the public. Supermarkets, restaurants, shopping malls, common areas of apartment complexes and retail stores are common locations where such falls occur.

In the case ruled upon by the First District Court of Appeal, the injured person fell on a drink that was spilled on the dance floor at a country club. As the injured person did not have a drink, the inference is that another patron spilled the drink on the dance floor. However, the claimant had no way to know or prove the length of time that the drink remained on the floor.

The trial court granted summary judgment in the country club's favor, ending the plaintiff's effort to seek compensation.

On appeal, the plaintiff argued that the club had knowledge of the dangerous condition long before the fall because the country club allowed people to carry drinks on to the dance floor, which would inevitably lead to spills. The plaintiff argued, that, although this particular spilled drink may have only been on the floor seconds before the fall, the country club could have prevented the fall by simply not allowing people to carry drinks onto the dance floor.

The appellate court agreed and reversed the trial court's ruling, which will allow the plaintiff to proceed with having a jury decide if the country club's practice of allowing drinks on the dance floor amounts to "negligence."

The "mode of operation" theory provides someone injured in a slip and fall the ability to bring a case in a situation where there is no evidence of how long a substance was on a floor prior to the fall, provided the plaintiff can prove that the defendant's method of operation is going to result in a slippery substance being on the floor.

For example, if a supermarket sells bagged ice, is should keep a mat in front of the ice cooler, because small pieces of ice often fall from ice bags when they are being removed from the cooler. If the ice lands on the supermarket floor, it will quickly melt causing anyone walking through the area to be exposed to a slip hazard. However, an unfortunate person injured in such a fall has no way to prove how long the ice or water was on the floor. Instead, that person can prove that the defendant was negligent in failing to place mats in front of ice coolers to catch any ice that falls from the bags and absorb the water when the ice melts.

The First District Court of Appeal handles the appeals from the circuit courts in north Florida from Jacksonville out through the panhandle including our area counties of Duval, Clay, Nassau, Union, Bradford and Baker.

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