Negligence

November 26, 2012

School Bus Shooting in Homestead: One Girl Killed

Tragedy struck a Dade County family, when a 13 year old girl was shot in the neck by another student on a school bus last week. According to reports by the Miami Herald and CNN, an unidentified, teenage boy was charged with manslaughter, after allegedly accidentally firing a concealed weapon on a school bus shooting Lourdes Guzman. The young girl was airlifted to Miami Children’s Hospital where she died the same day. (The Miami Herald) Lourdes Guzman was an innocent victim of a violent crime and the possible negligence of a bus company and driver, who took no action to prevent this senseless death. The crime victim’s younger sister, age 7, and seven other children were eye witnesses on this fateful day. The school bus was transporting children to 3 different schools. Guzman attended the Palm Glades Preparatory Academy.

This incident has shaken the community, and has made national news this week. Wrongful death cases should be litigated, and responsible parties should be held accountable. . The bus company owned and operated by Yelimar and Portieles might be to blame for this act, which could be judged as preventable and avoidable. Regulations for school buses should be improved, including video surveillance and possibly metal detectors are on board and other protections. Training school bus drivers how to manage children in a crisis such as this one would be helpful. Teaching school bus drivers how to intervene in potentially life threatening situations could save children’s lives. A child should never be allowed to bring a deadly weapon on board a school bus and action should be taken by the drivers in order to prevent this from ever happening! Hand gun owners and parents should be accountable too. There is no excuse for underage school children to leave home armed with a deadly weapon.

Personal injury attorneys can help victims and their families in seeking damages in a court of law. Settlements for death cases, sometimes can result in millions of dollars paid to a victim’s family. If a bus company is found to be a responsible party and is insured, attorneys for their clients can seek damages, for crimes committed against children being transported in these vehicles. Experienced attorneys at Gerson & Schwartz, PA are highly trained at handling wrongful death cases. Negligent school supervision and careless firearm safety have been the basis for successful recoveries for clients of the firm.

October 30, 2012

Gas Station Burn Victim Gets Go-Ahead to Press for Punitive Damages Against Circle K and Shell Oil

by Gerson & Schwartz, P.A.

A Palm Beach Deputy Sheriff severely injured in a fuel fire that broke out at a Marathon, Florida Circle K gas station will now be able to pursue punitive damages against Circle K Stores and the Shell Oil Corporation. Upon careful review of pre-trial evidence gathered by burn victim Richard Ragali’s attorney, a Monroe County Circuit judge has found enough evidence of conscious disregard by the fuel companies for the life and safety of their customers to entitle Ragali to add a claim for punitive damages to the lawsuit he filed.

The October 2, 2012 Sun Sentinel recounted, the 2009 incident that disfigured and disabled Ragali: While motorcycling his way to Key West in the company of other off-duty police officers, Ragali stopped at a Circle K station at 11100 Overseas Highway in order to refuel. As Ragali pulled his motorcycle up to one of the station’s fuel pumps, his bike slid on a standing puddle of gasoline, and within seconds, Ragali’s body was engulfed in flames. Either the bike’s hot exhaust pipe, or fumes coming from the pipe, made contact with the gasoline, and the resulting flash of fire instantly incinerated Ragali’s trunk, buttocks, right arm, and right leg. Six weeks at Miami’s Jackson Memorial Hospital could not restore Ragali to function sufficient to enable him to return to duty, and Ragali currently remains disabled and unemployed.

October 16, 2012

Florida Lawsuit Highlights Dangers of Automatic Gates

by Gerson & Schwartz, P.A.

On the morning of April 11, seven-year-old Zhanaye Williams and her brother climbed aboard the automatic gate located at the entrance to their Tampa, Florida apartment complex, hoping to pass the time as they awaited their school bus. Suddenly, the gate began to topple, and unable to escape, Zhanaye suffered a crushing and fatal blow to her skull. According to tenants of the complex interviewed for the April 11 edition of the Tampa Bay Times, the enormously heavy gate had been broken for at least four years, and by the time of the fatal accident, it was attached to its frame by only a chain. Earlier this month, attorneys for Zhanaye’s parents filed suit against the apartment complex owner and its management company, seeking damages for Zhanaye’s death, along with damages for infliction of bodily injury and emotional distress on Zhanaye’s brother, who survived the accident and witnessed Zhanaye’s deeply disturbing ordeal.
In this instance, the grossly neglected condition of an automatic gate is the focus of legal action, but property owners have been held accountable for automatic gate-related injuries even in cases in which the care and maintenance of an automated gate have not been challenged. This is because automated entrance gates are potentially very dangerous simply by virtue of their design and function, and as a result, property owners who choose to install them expose anyone entering their property to very well established risks.
Preventable Injuries Continue Despite Safety Standards

The power of automatic gates to cause serious injury and death has been recognized for many years. In March, 2000, the U.S. Consumer Product Safety Commission, in consultation with Underwriters Laboratories, developed specific standards aimed at reducing the risk of entrapment by automatic gates, basing this effort on documentation of approximately 25,000 gate-related injuries (9,000 of these involving children below the age of 15) during the ten-year period just prior to implementation of the new standards. The standards called for installation of both internal sensors, to reverse gate motion if the sensor directly encounters an object, and external sensors (such as electronic eyes), to reverse gate motion upon remote detection of an obstruction. The Commission also urged that gate controls, such as keypads, be positioned sufficiently far from gates so that users would not have to make contact with a gate while operating its controls.
The promulgation of these standards did not, unfortunately, put an end to maimings and deaths by automatic gates, in Florida or elsewhere. In September, 2000, a Miami woman coming to view a Coconut Grove condominium for possible purchase died from asphyxia after she operated the keypad of the automatic gate to the condo building by reaching through the gate’s bars, and got trapped in the moving gate before she had the chance to retract her arm. Zhanaye Williams’s fatal encounter with an inherently dangerous and poorly maintained automatic gate came over 12 years after gate safety standards were tightened; and less than a month after Zhanaye Williams was killed, a 12-year-old died when he got dragged into a vertical-rising, roll-up-style automatic gate at a Brooklyn, New York apartment complex.

October 2, 2012

Abuses at Florida Nursing Homes Continue

by Gerson & Schwartz, P.A.

The spotlight was once again on Florida’s nursing homes last month when WFTV 9 exposed the battering of a Southern Oaks Health Care Facility Alzheimer’s patient by one of the St. Cloud facility’s nurses. The nurse was arrested on felony abuse charges when police acted on an eyewitness account of the nurse delivering a belly blow to the helpless female patient. In its investigative reporting, WFTV uncovered a long history of patient-care and safety violations at this facility, some of which had resulted in a fine exceeding $25,000.

A disturbing case of extreme Florida nursing home neglect came to light in December, 2011, when the nursing director and a registered nurse at the Clermont Health & Rehabilitation Center were arrested on charges of failing to follow doctors’ orders for the care of an elderly patient who was recovering from a hip fracture. Regulatory enforcement documents in that case identified failures to treat ulcers over the patient’s limbs and tailbone as factors contributing to the patient’s ultimate death at the Clermont facility.

Last month, long-investigated conditions at the Ocoee Health Care Center finally became the subject of fines and a licensing downgrade after the Florida Agency for Health Care Administration documented that the facility had failed to ensure adequate and appropriate health care, protection, and support services to residents, breaching standards for provision of pain management, infection control, and wound care. Staff at the facility was found, among other infractions, to have disregarded a patient’s report of severe pain from both a fractured femur and pressure ulcers, and to have sloughed and bandaged this same patient’s wounds without maintaining sterile conditions, and without regard for procedure-related pain.

The Many Faces of Long-Term Facility Abuse

There are, very sadly, all too many ways in which a resident of a skilled nursing facility may be neglected or abused. The media-catching cases described here are examples of obvious intentional and negligent misconduct, but there are more subtle ways in which residents may suffer harm. Gradual malnourishment of a patient through failure to provide him or her with needed feeding assistance may not make the news, but it nonetheless constitutes a life-threatening form of nursing home neglect that must be redressed. Similarly, depriving a nursing home resident of devices he or she needs in order to maintain mobility may not produce bodily injuries, but this sort of misconduct constitutes a type of false imprisonment for which a facility must be held accountable.

September 12, 2012

Drunk Drivers Suffer Consequences for Driving Under the Influence

by Gerson & Schwartz, P.A.

A drunk driver, with his one year old child in the back seat, was arrested after being stopped by Boynton Beach police. Driving in the bicycle lane on North Federal Highway, Yair Espinsosa had a suspended license. His only identification was a Mexican passport. (sunsentinel.com) After police pulled Espinosa over, they found a bag of cocaine, as well as several open beer bottles.

In the state of Florida, drunk driving is a very serious offense. The legal blood alcohol level in Florida for drivers is .08%. Moreover, drivers are required to sign an “Implied Consent” when they sign their driver’s license. This law mandates that one has agreed to take drunk driving tests, if requested to do so. In Espinosa’s case, he refused the roadside sobriety test. Nevertheless, he later blew a .227 on a breath alcohol test which is almost three times the legal limit. Espinosa was transported to the Palm Beach County Jail; where, he still remains. He could not post the bail amount of $10,050.

The legal ramifications for drinking and driving are severe in the State of Florida, and laws vary depending on the age of the driver. For instance, there is a “Zero Tolerance Law” which applies to all individuals under the age of 21. According to this law , drivers who are found to have a blood alcohol level of .02% or higher are subjected to harsh penalties, including jail and a suspended license for 6 months.

September 5, 2012

Victims Still Seeking Product Liability Damages for Dangerous Drug

by Gerson & Schwartz, P.A.

A painful public memory was reawakened late last week when the Gruenenthal Group, which introduced the drug thalidomide in the 1950s, issued an apology to thousands worldwide who suffered severe birth defects after their mothers took thalidomide during pregnancy. The gesture brought no closure for thalidomide victims who have yet to be appropriately compensated for their injuries and disabilities, because the apology came with a reminder by Gruenenthal’s chief executive that the company has no intention of compensating victims for losses caused by the drug.

Thalidomide: Dangerous Drug
Prescribed until 1961 as a panacea for morning sickness, thalidomide interfered with fetal development, leaving its victims with shortened or completely absent limbs, and with other disabling, and often fatal, abnormalities of the heart, genitalia, eyes, and ears. The approximately 12,000 known victims of thalidomide were concentrated throughout Europe (including the U.K.), Australia, Japan, and Canada, where the drug had been approved for use during pregnancy. Even in the U.S., where thalidomide was distributed only on an ‘investigational’ basis, at least 17 children were born with the drug’s characteristic adverse effects. The accommodations those surviving thalidomide victims ended up needing simply in order to get through life turned out to be extensive and costly.

Despite Gruenenthal’s steadfast denial, over the years, of any obligation to compensate thalidomide victims for their injuries, advocates for compensation have never given up their fight, even as the population of thalidomide victims has aged. In the U.S., Gruenenthal, along with British firm GlaxoSmithKline and multinational pharmaceutical developer Sanofi-Aventis, have been named in lawsuits that seek damages based on these companies’ connections with the business entities that originally made thalidomide available to pregnant women in the U.S.

Dangerous Drug Claims
Thalidomide, which is used relatively safely, today, to treat a variety of conditions in non-pregnant patients, worked its notorious fetal harms through undetected or undisclosed side-effects. Also, many claims involve marketing practices that deprived thalidomide prescribers and users of clinical testing information that could have provided notice of serious risks.

Undisclosed dangerous side-effects, failures to limit drug use to safe contexts, and improper marketing are, in fact, often the bases for dangerous-drug damage claims against drug manufacturers and distributors. Manufacturing defects and drug tainting (which may occur during bottling and shipping) are yet another basis for liability recognized under drug product liability law.