Miami Accident Lawyer Blog

August 21, 2013

Florida Appeals Court Decision Demonstrates Application Of Comparative Negligence Doctrine

Last month, Florida’s Fourth District Court of Appeals issued a decision in the case of Disla v. Blanco, demonstrating how the application of the state’s comparative negligence doctrine can have a dramatic impact on a plaintiff’s recovery for injuries suffered in a car accident.

In Disla, the plaintiff, Mayuris Disla, was injured in a car accident when the defendant, Joseph Blanco, had a seizure and lost control of the vehicle while driving Disla home. In the ensuing crash, Disla suffered a broken neck which later required cervical fusion surgery. Disla sued Blanco for negligence, and following a trial, the jury found both parties to be the legal cause of damage to Disla, but apportioned 90% of the fault to Disla for failing to wear her seatbelt. The jury awarded Disla total damages of $205,325, which was reduced by the allocation of fault and PIP benefits to $10,532.50.

As this blog has discussed before, there are two doctrines under which the allocation of fault in a tort case can affect the recovery of damages. The first, referred to as “contributory negligence” has, for the most part, fallen by the wayside and is only still followed in five jurisdictions in the United States.

August 21, 2013

Pepper Spray Goes Off In Airport

by Gerson & Schwartz, P.A.

It was a regular Tuesday at Fort Lauderdale Hollywood International Airport. People pulling their luggage out of the trunk of loved one’s car, wishing farewells, and standing in line.

For ten travelers the security checkpoint was far from routine. According to the Sun-Sentinel, at around 5:45 p.m. at the Air Tran security checkpoint ten people experienced adverse reactions to what turned out to be pepper spray. Apparently, the canister was accidentally deployed in someone’s carry-on luggage. At least it happened in the security checkpoint area instead of on the flight. Nine people were treated in the airport at terminal one and continued to their gates, but one man wasn’t so lucky. Suffering from chest pains, he was taken to Broward Health Medical Center for treatment. It is unclear whether or not it was this man’s pepper spray, or how the pepper spray was deployed.

Personal injury laws such as common law negligence protect the rights of innocent injury victims. Liability for this incident could be based on an intentional tort or due negligence, carelessness, recklessness, or even an intentional act. An individual, establishment, or company may be held responsible for criminal acts of unknown this parties and for negligent acts of their employees under a theory called respondeat superior. In regards to the airport incident, important questions remain. How did the pepper spray deploy? How did is pass through security? Was there an altercation that security failed to identify and then escalated? Was the container deployed by an airport security officer? Do the other affected travelers know whose it was? Was the irritant passed through the x-ray machine? While the incident sounds only minor, the fact that such the incident occurred in the first place suggests a possible failure in the airport operations and duty to provide a reasonably safe premises. It also implies potential security vulnerabilities exist at one of our local major airports.

August 15, 2013

Carnegie Mellon Study Concludes That Talking On A Cell Phone Does Not Affect Ability To Drive

by Gerson & Schwartz, P.A.

According to a recently released study entitled “Driving under the (Cellular) Influence” conducted by Carnegie Mellon University and the London School of Economics and Political Science, the use of a cell phone while operating a vehicle does not correlate with a higher risk of causing a car accident.

The study sought to reconcile the conclusion that talking on a cell phone while driving increased the risk of crash with the fact that, although cell phone use has increased over the past few decades, the number of car crashes per mile traveled in the United States has decreased. The study gathered data from an unnamed cell phone provider which demonstrated a more than seven percent increase in call volume after 9 p.m., due to usage plans that offered free nights.

These figures were then compared to the rate of car accidents occurring before and after 9 p.m. Based on crash data gathered on eight million accidents in nine states and all fatal crashes across the nation, the study concluded that there was no correlation between cell usage during driving and incidence of car accidents.

August 7, 2013

Car Crashes Off Interstate

by Gerson & Schwartz, P.A.

Early Saturday, August 3 2013, morning a car heading northbound on interstate 95 crashed over the side of the elevated highway according to NBC Miami. When fire rescue arrived at the scene they had to pull one woman from the wreckage that landed in nearby trees. The other woman tragically had already died after being thrown from the car. Apparently, the car spun out of control after slamming into the median and continued on a trajectory that flung the car over the edge of the interstate. Although the exact cause of the accident is unknown, it is currently being investigated by the Highway Patrol.

Unfortunately, horrible car accidents like this one occur all too often. If you or a loved one is involved in an accident, no matter how severe, you can count on accident attorneys Philip M. Gerson, Edward S. Schwartz and Nicholas I Gerson to help you through the legal ramifications. They are experts in personal injury cases with specialization in car accidents as well as maritime law. It is always best to operate a vehicle while completely sober and to stay focused on the road. Checking in all of your mirrors frequently will keep you aware of your surroundings should another car with a dangerous driver approach your driving path. Being aware of other drivers’ around you is imperative to driving defensively and may save your life.

Always have an escape route planned. This way if a dangerous driver is close to hitting your car, you can quickly and easily move out of harm’s way. Often times, driving in the center lane is a good solution for this as it allows for lateral movement in either direction.

August 4, 2013

Workers Injured In Explosions At Florida Propane Plant

by Gerson & Schwartz, P.A.

Late Monday night, the Blue Rhino propane gas-filling plant in Tavares, Florida, was rocked by a series of explosions that seriously injured several of the facility’s workers. According to the Lake County Sheriff’s Office, there were no fatalities as a result of the blasts, however, eight of the estimated twenty four to twenty six man crew working an overnight shift at the plant were taken to local hospitals with severe injuries. Of the injured, at least three have been listed in critical condition.

The Blue Rhino plant, located northwest of Orlando, refills the 20-pound propane tanks used in gas grills and had over 53,000 on site at the time of the explosions. There were also three bulk storage tanks holding approximately 30,000 pounds of liquefied propane that were damaged by the blasts but did not explode. The plant passed inspections by the Florida Department of Agriculture and Consumer Services in March and July with no safety violations.

Tavares Fire Chief commented on the cause of the explosions, stating “We don’t think there was any act of sabotage or anything like that. It was probably a human or equipment error.” While there has yet to be any substantial investigation as to the cause of this accident, the initial reports indicate that there may have been some negligence on the part of the company or employees in the operation of the plant.

The injuries of those employees should be covered by workers compensation insurance. However, in the event insurance coverage doesn’t exist, or is insufficient to compensate the victims of this incident for their injury, the parent company of Blue Rhino, Ferrellgas, may be held liable if the plant was operated or managed in a negligent manner. Ferrellgas spokesman Scott Brockelmeyer admitted that Ferrellgas paid a $2,295.00 fine in November of 2011 after an Occupational Safety and Health Administration inspection discovered the absence of a component at the end of an air hose, but claimed that the problem was immediately corrected.

There are a number of negligent acts that could have caused this unfortunate accident. Poor design or improper installation of equipment and improper inspection or maintenance of the facility are just a few of the things that could have gone wrong. Ferrellgas owed their employees a duty to discover and take action to prevent dangers that were foreseeable and any failure to do so may result in civil liability.

If you or someone you know has been injured as the result of the dangerous condition caused by the negligent acts of another, it is important that you discuss your situation with a knowledgeable attorney as soon as possible to determine the merit and value of your claim, as well as to preserve any favorable evidence.

July 31, 2013

Violent Bar Fight at Dirty Blondes in Fort Lauderdale

by Gerson & Schwartz, P.A.

Patrons at a Fort Lauderdale bar, Dirty Blondes, recorded a video of a brawl that took place between bouncers and customers. The next morning, the video was seen on Instagram, Facebook and other news and social media websites. The viral footage of the incident attracted an audience worldwide, including the local Fort Lauderdale police. As punches were thrown, and men were assaulting each other, police arrived at the scene. Charges are pending due to the fact that, the case remains open. Subsequently, the crime victims involved have not yet decided whether or not they will press charges against the bar’s bouncers.

On Facebook, the bar posted a public apology for the behavior of their bouncers. Controversial Facebook Pages, like “Boycott Dirty Blondes” have popped up, as well. Miami personal injury attorneys at Gerson & Schwartz PA represent crime victims that have been seriously injured by bouncers and patrons at similar bars and night club establishments.

Most recently, the firm obtained a jury verdict of $950,000 on behalf of a patron that was severely injured at Club Nikki on South Beach. Premises operators at these establishments have a non delegable duty to maintain their premises reasonably safe. This legal duty includes providing adequate security. That does not mean bouncers can assault someone even in the event of an altercation. Many bars and night clubs employ in house security personnel. Under Florida law, private security guards must have a proper license issued by the state of Florida. But there are no such legal requirements for in house security guards. The result is that bouncers may have a lack of formal training and then cross the line by using unreasonable and excessive force. The excuse is usually that such force was necessary to get the job done.

July 27, 2013

Florida Supreme Court Addresses Prerequisites To Coverage Under Personal Injury Protection Insurance System

by Gerson & Schwartz, P.A.

As this blog has previously discussed on several occasions, Florida is one of twelve states that has adopted a “no fault” insurance scheme. Florida’s system requires motorists involved in auto accidents to submit claims for compensation to their own insurance company, regardless of which party is at fault for the accident.

Florida has further mandated that motorists must carry a minimum of $10,000 of personal injury protection (“PIP”) insurance which covers medical treatment and other economic damages that might arise from a motor vehicle accident up to 80% of medical bills, 60% of lost wages, and a $5,000 death benefit.

Florida’s PIP system has been the subject of much scrutiny over the last year as lawmakers continue to tinker with its provisions through new legislation. The PIP system is intended to provide benefits for to those injured in automobile accidents in an expedited manner. Recently, the Florida Supreme Court issued a decision in Nunez v. Geico holding that the placement of certain obstacles to obtaining recovery by insurers frustrates the purpose of the PIP system and are therefore unlawful.

In Nunez, Merly Nunez was injured in a car accident in September 2008 and sought PIP benefits from her insurance company, Geico. Geico denied Nunez coverage, claiming that she had to submit to an examination under oath, as required by her policy, prior to seeking treatment. Nunez sued Geico in a class action, arguing that Geico’s examination requirement violated Florida’s PIP statute.

After the federal district court dismissed the lawsuit, Nunez appealed to the 11th Circuit U.S. Court of Appeals, which certified the issue for resolution by the Florida Supreme Court. Before the Florida Supreme Court could decide the case, Governor Rick Scott signed into law amendments to the PIP statute that required any individual seeking benefits to comply with the terms of his or her insurance policy, including an examination under oath requirement. However, according to the Supreme Court, because Nunez’s policy with Geico was issued in 2008 and the accident was in 2008, the amendments to the PIP statute were inapplicable to Nunez’s case.
In ruling that Geico’s policy violated the provisions of the PIP statute, the Court recognized that the statute’s stated purpose is to provide for “swift and virtually automatic payment” to those eligible for PIP benefits and Geico’s examination requirement clearly frustrated that purpose by preventing Nunez from recovering in a “swift and virtually automatic” way.

If you or someone you know has been injured in a car accident you may need legal representation to protect your right to compensation. It is imperative that it your claim be evaluated by an experienced personal injury attorney as soon as possible after the accident to preserve your right to compensation.

July 18, 2013

Florida’s New Medical Malpractice Law Spurs Legal Challenges Days Hours After Taking Effect

by Gerson & Schwartz, P.A.

On July 1, 2013, Senate Bill No. 1792, codified in Florida Compiled Statutes at Ch. 2013-108, went into effect, and, within hours, spurred several legal challenges by Florida trial attorneys. The law allows physicians and defense attorneys to interview a physician regarding his or her patient’s treatment during the fact-finding period of a potential lawsuit without the patient’s presence, consent or knowledge. The statute also requires that any expert witness that testifies in medical liability must practice the same specialty as the defendant’s physician.

Physicians, hospitals, and other medical professionals owe their patients a duty to act with a certain level of care generally accepted within the medical industry. When medical professionals fail to satisfy this duty, the resulting negligence may result in liability for medical malpractice. As this blog has discussed before, between 1990 and 2010, nearly 10,000 medical malpractice judgments were paid out totaling $1.3 billion. In the cases underlying those judgments, death occurred in 6.6% of patients, permanent injury in 32.9%, and temporary injury in 59.2%.

The Florida Justice Association (“FJA”), a group comprised of Florida trial attorneys, is leading the challenge to the new law, claiming that it violates state privacy rights and the federal Health Insurance Portability and Accountability Act. According to the lawsuits filed by the FJA, allowing defense attorneys to contact nonparty physicians without patient consent will lead to illegal medical history disclosures. Critics of the law also contend that it will deter the filing of medical malpractice lawsuits for fear personal information will be improperly divulged.

July 10, 2013

First Lawsuit Regarding Miami, Florida Restaurant Deck Collapse Raises Premises Liability Claims

by Gerson & Schwartz, P.A.

Last month, thirty-three people were injured when the deck of North Bay Village waterfront restaurant Shuckers Bar & Grill collapsed while patrons watched Game 4 of the NBA Finals. According to Miami-Dade Fire Rescue Chief Dave Downey, there were more than on hundred people on the deck when it came down, sending dozens into Biscayne Bay. Of the injured individuals, twenty four were transported to local hospitals and two of them were in serious condition.

In late June, the first of what is likely to be several lawsuits against Shuckers was filed by a couple that claims they suffered bodily injury, mental anguish and disfigurement in the accident. According to the complaint filed in Miami-Dade Circuit Court, Shuckers had “a duty to properly maintain its property and to warn of dangerous conditions which it had actual constructive knowledge of” and to take action to remedy those hazardous conditions.

A North Bay Village Building Official indicated that a visual inspection of the deck revealed that the concrete surrounding the steel pilings that supported the deck had degraded. Although the Building Official had approved an inspection of Shuckers in January, the engineer who inspected the building admitted he did not inspect the deck.

July 1, 2013

AAA Study Concludes That Motorists Are Unable To Safely Multitask While Driving

by Gerson & Schwartz, P.A.

According to a recently released study conducted by the AAA Foundation for Traffic Safety, contrary to what many individuals might believe, motorists are incapable of safely performing both the various tasks necessary to safely operate a vehicle while engaging in another activity such as talking on the phone or texting.

The study, entitled “Measuring Cognitive Distraction in the Automobile,” sought to establish a method by which researchers could measure and understand “cognitive distraction” in motor vehicles by performing various experiments designed to assess the effect distractions had on the ability of participants to effectively operate a motor vehicle.
The study concluded that, as drivers were exposed to increased mental workload and distractions, their reaction time slowed significantly and their brain function became compromised. The detrimental effects of increased distractions resulted in driver’s scanning the road less and missing visual cues.
The study’s findings seem to debunk many motorists’ long-held belief that the use of hands-free technology to talk or text eliminates much of the danger associated with distracted driving. The study’s results indicate that the mental distractions caused by talking or texting are present even when motorist are able to keep their hands on the wheel and eyes on the road.
According to Gail Weinholzer, a AAA representative, a survey conducted by AAA found that “71% of all drivers believed that hands-free is risk-free and 50% of all drivers believed infotainment systems are not distracting. Both of those statistics could not be further from the truth.”
As this blog has discussed before, distracted driving is a serious problem plaguing Florida’s roadways. Of the more than 170,000 crash reports filed in Florida during the first ten months in 2011, over 100 involved motorists that were texting at the time of the accident.
Further, according report published by the National Highway Traffic Safety Administration, in 2009, 5,474 people were killed on U.S. roadways and another 448,000 were injured in motor vehicle accidents that reportedly involved distracted drivers. In distracted driving crashes that resulted in a death, 995 involved a cell phone as the distraction, and, of those accidents resulting in injury, more than 24,000 involved a cell phone.

The State of Florida has recently taken steps to curb the negative consequences of distracted driving, as Governor Rick Scott recently signed a bill banning motorists from texting-while-driving. The ban makes Florida the forty-first state to enact such prohibitions on the use of cell phones while driving. Although the ban on texting-while-driving may result in a decrease in distracted driving, the AAA study demonstrates that it will continue to be problem as long as motorists persist in using technological devices while operating their vehicles.