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.

Continue reading "Logging Truck Accident in Starke Highlights Dangers of Entrusting Trucks to Dangerous Drivers" »

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.

Continue reading "Florida Circuit Court Determines that Florida's Workers' Compensation Law is Unconstitutional" »

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.

Continue reading "Eleventh Circuit Court of Appeals in Boating Accident Case Allows Woman to Proceed in State Court" »

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.

Continue reading "Appellate Decision Clarifies Florida's Slip and Fall Statute" »

May 13, 2014

Another Fatal Boating Accident in Florida

Unfortunately, another boating accident occurred in Florida over the weekend. Coincidentally, it happened in Biscayne Bay, the same location of a fatal boating accident handled by our firm that resulted from the collision of two high speed boats.

In the accident that occurred this weekend, a forty-foot outboard powered boat was being pushed off of a popular sandbar with the operator of the boat assisting by placing the boat in gear. Although the incident is still being investigated, it has been reported that one of the people helping to push the boat off the sandbar was struck by one of the boat’s propellers causing devastating wounds. Despite being rushed by helicopter to the nearest emergency room, the young man could not be saved.

The sandbar at issue is a popular spot for boaters to congregate. At times, it can have a rowdy atmosphere with drinking. It is currently unknown whether the operator of the boat was under the influence of alcohol, or any drugs, at the time of the incident. Blood alcohol testing was not performed as the Florida Wildlife Commission did not observe physical signs of intoxication that would provide probable cause to perform such testing. As a result, even if the operator of the boat was under the influence, a criminal prosecution is extremely unlikely.

This situation highlights one of the differences between civil claims for personal injury and criminal prosecution. Even if the state attorney does not charge the operator of the boat, a civil attorney will have the ability to gather evidence and bring a claim for wrongful death, including seeking punitive damages, against the operator of the boat if there are witnesses who observed the operator of the boat drinking alcohol prior to this incident. Even without intoxication, the operator of the vessel was probably negligent in running the engine while someone was near the area of the propellers. As such, the lack of a criminal prosecution does not stand in the way of civil justice.

Every year, there are fatal boating accidents in Florida. In April of 2009, Jacksonville was the scene of the worst boating accidents in recent Florida history when five persons died and others were injured when a boat carrying fourteen persons crashed into a dock on the Intracoastal Waterway in St. Johns County, Florida. While the operator of the boat was not intoxicated she did have alcohol in her system. Other persons in the boat with more boating experience let her drive because they were intoxicated.

Personal injury or wrong death claims resulting from boating accidents have a special set of laws that apply. These laws are referred to as “admiralty” or “maritime” claims and follow a separate set of rules, with a separate statute of limitations and potential limits of liability. As a result, any persons injured or seeking recovery for the wrongful death of a family member should hire an attorney experienced in maritime and admiralty claims.


Continue reading "Another Fatal Boating Accident in Florida" »

April 14, 2014

Florida Supreme Court Clarifies Exception to the Dangerous Instrumentality Doctrine Regarding Car Accidents

On April 10, 2014, the Florida Supreme Court issued an important ruling regarding Florida’s dangerous instrumentality doctrine as it applies to the owners of vehicles involved in auto accidents. Generally speaking, Florida's dangerous instrumentality laws provide that the owner or owners of a vehicle are responsible for any injuries caused by anyone else driving the vehicle with permission. The rationale for this rule is that the owners of a vehicle are in the best position to ensure that persons operating it are safe drivers.

There is an exception to this rule, commonly referred to as “beneficial ownership” exception. This exception applies when the ownership interest in the vehicle has been transferred from one person or entity to another but the title hasnot yet been changed when an auto accident occurs. This situation usually occurs when, in the sale of an automobile, the buyer takes possession the vehicle, yet the title has not been changed to reflect the new owner. In this situation, the seller no longer has the ability to control who is driving the car after possession is given to the buyer, so the rationale of the dangerous instrumentality doctrine is not undermined.

In the case ruled on last week by the Florida Supreme Court, a husband was placed on the title as co-owner with his wife. They later divorced . After the divorce, the husband did not have access to the vehicle nor did he have keys to the vehicle, yet his name remained on the title as a co-owner. The case proceeded to a jury trial and the jury determined that the husband was not a beneficial owner at the time of the accident, and, therefore, the husband was not liable to the plaintiff. Unfortunately, the car accident at issue caused the wrongful death of the driver of the other car. The appellate court held that the husband was still responsible as the owner of the vehicle. The issue was certified as one of great importance to the Florida Supreme Court.

The Florida Supreme Court ruled that the ex-husband still had the ability to exert control of the vehicle as an owner even though he chose not to do so. The ex-husband's subjective intent that the wife be the sole owner of the vehicle, and that he gave the vehicle to her as a gift, was not relevant. As a result, the Florida Supreme Court ruled that the ex-husband was responsible for the wrongful death damages resulting from the car accident.

In so doing, the Florida Supreme Court limited the beneficial ownership exception to Florida's dangerous instrumentality law to apply to the narrow circumstance where the ownership of a vehicle has been transferred, yet the title work has not caught up with such transfer. To rule otherwise would allow co-owners in all sorts of car accidents to avoid liability for injuries by claiming an intent to have no actual interest in the vehicle despite the fact that, legally speaking, he or she did have the right to exert control over the vehicle.

In short, the ruling was a victory for persons injured in car accidents as a co-owner will not be able to escape liability by merely claiming that he or she did not intend to exercise any control over who used the vehicle.

Continue reading "Florida Supreme Court Clarifies Exception to the Dangerous Instrumentality Doctrine Regarding Car Accidents" »

March 31, 2014

Florida Supreme Court's Ruling Clarifies Duty Owed to Prevent Injury by Third Parties

Last Thursday (3/27/2014), the Florida Supreme Court rendered an important decision regarding the duty to prevent harm by reason of the misconduct of a third person.

Generally speaking, a person does not owe a duty to prevent someone else from injuring another person. For example, the law does not require that you step in if you see someone assaulting another person.

The facts of the Supreme Court case; however, are intriguing. In that case, three men were at a bar drinking to the point of intoxication. One of the men, Dennis Dorsey, was critical of Robert Reider's boisterous behavior and he left the bar. Mr. Reider, and his freind Mr. Noordhoek, followed and trapped Mr. Dorsey between two vehicles. Mr. Noordhoek then retrieved a tomahawk from one of the vehicles. Mr. Reider prevented Mr. Dorsey from leaving, whereupon Mr. Noordhoek struck Mr. Dorsey in the head with the tomahawk, causing personal injury.

A trial was held and Mr. Dorsey was awarded in excess of $1,500,000.00 against Mr. Reider. In all likelihood, Mr. Reider had homeowner's insurance that would provide coverage for the personal injury claims against Mr. Reider. Mr. Reider appealed and the Third District Court of Appeal reversed the trial court and held that Mr. Reider owed no duty to Mr. Dorsey to prevent Mr. Noordhoek's actions.

The Florida Supreme Court noted the exceptions to the general rule that a person does not have a duty to prevent injury by a third party. Those exceptions provide for a duty where the defendant is in control of: the dangerous instrumentality (the tomahawk); the premises on which the tort occurred (the bar's parking lot); or the tortfeasor (Mr. Noordhoek). Since Mr. Reider was not in control of any of these three things, the appellate court ruled he had no duty to prevent Mr. Noordhoek's attack with the tomahawk.

The appellate court's result seems harsh and, frankly, absurd. Mr. Reider initiated a physical encounter and prevented Mr. Dorsey from being able to leave. While Mr. Reider may not have known Mr. Noordhoek was going to engage in such a violent attack, he had to know some degree of injury to Mr. Reider was possible at the hands of Mr. Noordhoek as the confrontation was certainly not friendly in nature.

The Florida Supreme Court referred to another exception that applies when a defendant creates a foreseeable zone of risk to someone. When this occurs the defendant has a legal duty to minimize the risk. Previously, the appellate court held that this exception only applies when the third person's (Noordhoek's) actions occur with such frequency that it can be expected to occur again.

This exception is commonly seen in injury cases involving crimes that occur at a shopping center, hotel, bar or apartment complex. In such cases, the reoccurring nature of criminal attacks on patrons creates a duty on the part of the business owner to take measures to increase security. Since there was no evidence that Mr. Reider was aware of any prior aggression by Noordhoek, the appellate court held that this exception did not apply.

The Supreme Court clarified that the zone of risk analysis only required that some degree of harm to Mr. Dorsey was foreseeable and the exception did not require that Reider was aware that Noordhoek was likely to strike Mr. Dorsey with a tomahawk. The Supreme Court got it right as Mr. Dorsey was prevented from leaving by Mr. Reider and Mr. Reider certainly did not do this with good intentions, despite the fact that Mr. Reider probably did not know that Noordhoek was going to engage in such brutality.

Continue reading "Florida Supreme Court's Ruling Clarifies Duty Owed to Prevent Injury by Third Parties" »

March 7, 2014

Doing Your Homework Before Entering an Assisted Living Facility in Jacksonville

Jacksonville has nearly one hundred assisted living facilities ("ALFs"). ALFs are a step between independent living and a nursing home. ALFs provide housing, food and personal services; however, they do not provide medical care. In limited circumstance, an ALF may provide some nursing care and assistance with medications. They allow for greater privacy, and are usually much less expensive, than a nursing home.

ALFs are licensed and inspected by Florida's Agency for Health Care Administration. Because they do not provide nursing or medical care, ALFs are not as tightly regulated as nursing homes. Unlike nursing homes, the State of Florida does not maintain a rating for assisted living facilities. This can make picking out an ALF a daunting task.

Floridahealthfinder.gov has a list of all licensed ALFs in the state broken down by region and county. Each ALF on the list has links to provide the types of licenses the ALF has, the number of beds, the name of the administrator and inspection results.

Fees for ALFs vary greatly depending mostly on the degree of services being provided. Generally speaking, Medicare or Medicaid will not pay ALF fees.

Other factors to consider when selecting an ALF include: whether the resident will have his or her own room; whether the resident will have to share a bathroom with one or more other residents; whether the resident has kitchen facilities in his or her room; and whether pets are allowed.

Of course, there are alternatives to assisted living facilities including adult day care centers and adult family care homes. Adult day care centers are a day time supplement for persons living at home. They provide opportunities for social activities, counseling, limited training for activities of daily living, and meals.

Adult family care homes provide a home environment for up to five adults who are not related to the owner of the home with the owner of the home residing there as well. These homes provide housing, meals and assistance with health care arrangements, transportation and medication administration.

If the decision has been made to move into an assisted living facility, we recommend the following actions be taken: find ten or more that are in a convenient area for family members to visit (remember that family members are the very best people to notice if an elderly person is experiencing unsatisfactory care or changes that require medical attention - the more convenient it is for family members to visit, the more often they are likely to visit); go to Floridahealthfinder.gov to learn more about the size of the facilities, whether they have special licenses necessary for your situation (for example, a limited mental health care license may be appropriate for a resident showing early signs of dementia) and view inspection reports; visit the facilities; determine cleanliness; evaluate the general condition of the other residents; consider the activities and services provided; and determine the exact room that is available. Meeting with the administrator and staff is also a must. If other resident's family members are present during your visit, ask them if they are pleased with the facility.

Continue reading "Doing Your Homework Before Entering an Assisted Living Facility in Jacksonville" »