Miami Accident Lawyer Blog

January 17, 2013

U.S. Consumer Product Safety Commission Issues Press Release Regarding Potentially Dangerous Winter Products

Last week, the U.S. Consumer Product Safety Commission (“USPSC”), issued an advisory to consumers to check their homes for certain cold weather products which were previously recalled due to safety concerns.

According to the press release, consumers should be looking for four specific products which, although recalled over the summer, likely saw little or no use until the cold weather hit. Those products are ECHO Bear Cat log splitters, Big Lots portable ceramic space heaters, Harbor Breeze bath fans, and Snowpulse Avalanche airbags.

Each of these products suffers from a defect which renders it dangerous for use. For example, according to the press release, the ECHO Bear Cat log splitter suffers from a design flaw where the “end cap of the log splitter’s hydraulic cylinder can break away from the body of the log splitter, posing an impact hazard to the user or bystander.” At the time of the original press release in June of 2012, the manufacturer of the log splitter, Crary Industries, had received three reports of the hydraulic cylinder end caps detaching, with one of the instances resulting in an injury from the cylinder striking the user in the head.

January 8, 2013

Fatal Florida Car Accidents & Wrongful Death Lawsuits

by Gerson & Schwartz, P.A.

Recently CentralNY published a story on a tragic fatal Florida car accident that took the life of a college student. Details on the auto accident remain sparse, as authorities are still investigating to determine exactly what happened. What is known is that a 22-year old was on his way back to Santa Fe College in Gainesville after having spent the holiday season with his family. He was traveling south on Interstate 95 on Sunday when, for reasons that have yet to be determined, his car careened off the road. The vehicle eventually slammed into the concrete base of an overhead sign. The impact was severe, and the student did not survive the collision.

The Miami, Florida Auto accident attorneys at Gerson & Schwartz, PA say it is far too early to make any claims about whether or not there might be civil liability in this case. The road conditions may have been poor, items from another vehicle may have been in the road, his car could have malfunctioned, or any number of other factors may had led to the tragic accident.

January 7, 2013

What If I’m In a Car Accident And We Are Both At Fault?

by Gerson & Schwartz, P.A.

Car accidents strike countless times each and every day throughout Florida. There are many different types of accidents, from drivers failing to see a stop sign to drivers talking on a cell phone and drifting into a different lane. In fact, frequently the causes of an accident are myriad, many different factors combine to cause a collision, often with significant property damage and personal injury.

Because of this many community members who are involved in these Florida car accidents have questions about how the law deals with cases where different parties are both partially at fault for the accident. Can you still recover for part of your losses even if you weren’t driving perfectly at the time of the incident?

January 2, 2013

New Florida Motor Vehicle Accident Laws; Changes in Personal Injury Protection Now Effective

by Gerson & Schwartz, P.A.

New Personal Injury Protection Laws Now Effective

New motor vehicle accident laws go into effect today, (actually as of 1/1/2013)
along with many other new laws across the nation. Motorists in Florida should now be aware of how the changes will affect them in the event of a car accident. “Personal Injury Protection” is a type of insurance that all motorists in the state of Florida are required to purchase by law. The changes in PIP will now lower the amount of money injury and accident victims can obtain for medical treatment and compensation regardless of the fault paid for by their own insurance company. The laws now create additional obstacles to obtain the full benefits. The laws have been enacted to help combat the questionable medical care, medical bills, fraud, and other forms of what some consider to be questionable treatment such acupuncture. It’s not that you can’t still get this care, the only difference is in the amount of money your insurance will pay for medical treatment and how much they will have to pay. The new law can be found under , House Bill 119.)
Under the new PIP laws, if an insured does not seek medical treatment within 14 days of the accident, PIP will not pay any medical expenses. This is different from past PIP laws as there was no time limit to seek benefits until now.

Although there is medical literature that states it is not uncommon injuries to manifest after 14 days after an accident, it also not unusual for people who sustain serious bodily injuries in that time frame. But also, when you consider the the difficulty in obtaining an medical appointment some people may be out of luck under the now existing law in the state of Florida.

Drivers, medical providers, chiropractors, and attorneys handling car accident cases should familiarize themselves with the new provisions. The now current law is that unless the medical treatment is for an “Emergency Medical Condition,” PIP payments will be limited to $2,500. this differs from the prior $10,0000.00 one could obtain. Also emergency medical care is defined in the new legislation as: (1) Serious jeopardy to patient health; (2) serious impairment to bodily function; (3) serious dysfunction of any bodily organ or part.)

December 23, 2012

New Program Seeks to Minimize Florida Car Accidents

by Gerson & Schwartz, P.A.

Motor vehicle accidents can cause serious injuries and sometimes even lead to death. The situation is even more tragic when children are involved. Sadly, car accidents involving children strike time and time again throughout the state.

For example, on Saturday, December 1st a 14 year old girl died in a car crash in Baker County. Two other teenagers were injured. According to the Florida Times-Union, a vehicle overturned as the 17-year old driver attempted to pass another vehicle. The three teens in the car were all ejected with one suffering fatal injuries and the other two transported to a local hospital in critical condition.

This is one of many deadly accidents that occur each year in Florida that involves teenagers. Many safety advocates argue that programs exists that can help raise teen driver awareness and track traffic accidents. For example, Florida Highway Patrol Captain, Keith Gaston uses a program he developed in college to help collect accident information for specific areas in Florida. This “Signal Four Analytics” program can inevitably help police address high volume accident areas in hopes that less people will get hurt on the road.

According to Florida Today, this pilot program is able to compile information regarding traffic accidents that occur within the state including “basic collision facts to more detailed data available to traffic investigators and others.” This information can help law enforcement determine the time and location of accidents to see where and when these accidents frequently occur. Motor vehicle accidents can cause serious injuries and sometimes even lead to death. The situation is even more tragic when children are involved. Sadly, car accidents involving children strike time and time again throughout the state.

For example, on Saturday, December 1st a 14 year old girl died in a car crash in Baker County. Two other teenagers were injured. According to the Florida Times-Union, a vehicle overturned as the 17-year old driver attempted to pass another vehicle. The three teens in the car were all ejected with one suffering fatal injuries and the other two transported to a local hospital in critical condition.

This is one of many deadly accidents that occur each year in Florida that involves teenagers. Many safety advocates argue that programs exists that can help raise teen driver awareness and track traffic accidents. For example, Florida Highway Patrol Captain, Keith Gaston uses a program he developed in college to help collect accident information for specific areas in Florida. This “Signal Four Analytics” program can inevitably help police address high volume accident areas in hopes that less people will get hurt on the road.

Gaston suspects that the December 1st accident occurred at a high frequency time for teenagers, which is after school. Now that they are able to target the time and place, they can focus on enforcing safety measures among young drivers in that area by issuing warnings or when necessary, giving tickets. Gaston admits, however, that the goal of this program is not to give tickets but to decrease the number of accidents overall. Educating drivers and increasing patrol are among the safety measures Gaston intends to put in place.

This program may be an innovative step for law enforcement to use to decrease the number of accidents that occur within our state. In the past paper reports and simple intuition was used to target the areas of frequent car accidents. Hopefully, as other public agencies enter other information into the database, such as insurance details and data about which hospitals victims were sent, the program can be further useful to these agencies. Thus far the state has provided $179,000 to expand this pilot program so that it can be free to all public agencies such as emergency medical providers and traffic engineers. What started as a pilot program is now proving to be a helpful guide to law enforcement.

December 14, 2012

Sandy Hook Elementary Shooting

by Gerson & Schwartz, P.A.

News is still coming in today about about Sandy Hook shooting massacre. With eerie similarities to the Columbine and shootings at Virgina Tech it is unthinkable how and why heinous crimes at schools are becoming more and more widespread. The latest calculations are that nearly 100 rounds of ammunition were fired and up to 30 children and adults have been killed. Crime Victim Lawyers at Gerson & Schwartz, PA believe that this is should be another wake up call to everyone from Congress to the members of the public.

Though the right to bear arms is a “constitutional” right recurring crimes like these at our most scared institutions require immediate legal reform. ” How can someone just go and purchase 100 rounds of ammunition?” What does someone need a high powered machine gun for other than to kill and inflict serious bodily harm?, asked Nicholas Gerson

Though it is still unknown what other security and safety measures were breached, or if there even were any in place at Sandy Hook Elementary victims rights attorney Nicholas Gerson, believes people are still going to argue that this was just another isolated and unforeseeable incident. “We disagree.” Reasonable security measures need to be enforced on a national basis- even at elementary schools. Gerson said from his Miami, Florida offices that the attorneys and investigators at his firm were monitoring the situation and have started their own preliminary investigation to determine how this happened, and what could have been to prevent it from happening.

December 12, 2012

Florida Rear-End Collision Victims Face New Challenge As High Court Complicates Proof of Fault

by Gerson & Schwartz, P.A.

Most drivers who experience the misfortune of being struck from behind by another vehicle operate on the assumption that the other driver is likely to bear full responsibility for the injuries and damage that result. This assumption has generally been borne out in Florida rear-end collision cases. However, but a Florida Supreme Court ruling issued just last month has increased the possibility that even where a rear driver is overwhelmingly at fault, that driver may not have to compensate the front driver for all accident-related expenses. This development makes it more important than ever for Florida accident victims involved in rear-end collisions to be represented by experienced Miami personal injury attorneyslike the ones at Gerson & Schwartz, PA who know exactly how to analyze the many factors now deemed relevant to establish legal liability in these types of cases.

The Rear Driver Is No Longer Presumed Solely Responsible

Until the Florida Supreme Court’s ruling, last month, the prevailing principle, in rear-end collision cases, was that the rear driver’s conduct would almost always be presumed to be the sole (and most immediate) cause of injuries caused to individuals in the forward vehicle. This presumption could be lifted in only three scenarios: 1) Where the rear driver’s vehicle experienced an unpreventable brake failure, 2) where the forward driver stopped or changed lanes suddenly, and 3) where the forward vehicle was illegally stopped in the path of traffic. In 2010, a Florida appeals court challenged this prevailing analysis, holding that if the forward driver in a rear-end collision case was negligent in any manner, that negligence could be used to reduce the rear driver’s liability for damages. This, said the appeals court, was consistent with Florida’s ‘comparative fault doctrine’ , in which financial responsibility in personal injury cases is generally not assigned on an all-or-nothing basis, and is, instead, distributed among the parties according to the percentage of fault in relation to the extent of fault to which their conduct contributed to accident and resulting injuries.

The case decided by Florida’s Supreme Court, last month, was actually brought by the rear driver in a rear-end collision case, who hoped to benefit from the 2010 appeals ruling that recognized potential liability on the part of forward drivers in such collisions. The forward driver in that case had been using her cell phone while driving downhill at 45 mph, just before she collided with a vehicle and then got struck by the plaintiff from behind. The rear-driving plaintiff initially lost at the trial and appeal levels, but the Supreme Court sided with her in the end, granting her a chance to present her case to a jury. In the process, the Florida Supreme Court essentially confirmed that there is no longer a very firm presumption, in Florida, that the conduct of the rear driver in rear-end collisions is solely responsible for the forward driver’s injuries.

December 5, 2012

Charter Bus Barrels Into Concrete Overpass at MIA, Killing Two Passengers and Leaving Three in Critical Condition

by Gerson & Schwartz, P.A.

A private charter bus carrying 32 members of an assembly-bound church group inexplicably ended up at Miami International Airport, this past Saturday, where it rammed into an overpass, instantly killing one of its passengers and injuring many others. According to the December 2 Miami Herald, the bus was 11 feet tall, but, as shown in a December 2 Associated Press photo of the accident, the bus crashed only several feet away from two prominent signs that warned all vehicles taller than 8 feet, 6 inches to stop and veer left. An Airport spokesman stated that the bus was traveling at about 20 mph at the time of the accident, and that any bus driver familiar with the Airport would have known that tall vehicles are prohibited in the area.

A tourist who witnessed the incident reported that the damaged bus resembled a peeled-back “can of sardines.” In fact, because the bus’s roof crumbled at its point of impact with the overpass, metal and debris fell on to passengers from above, causing many head and facial injuries. Passengers were also thrown from their seats into the center aisle at the time of impact. Miami resident Serfin Castillo was killed immediately, and a second passenger, Fancisco Urana, also of Miami, died after reaching Jackson Memorial Ryder Trauma Center. Three other passengers were admitted to hospital in critical condition, with another eight hospitalized in stable condition. The bus was owned and operated by Miami Bus Service Corporation, a small company that, according to the Miami Herald, often provides transportation for University of Florida students.

Getting to the Bottom of the Tragedy

Pending investigation, it is too soon to say what factors may have contributed to this tragic collision, but driver error will most assuredly be among the causes explored. Bus drivers may err in many different ways. They may fail to understand posted warning signs, or may disregard these, as a result of fatigue, poor reflexes or cognition, intoxication, or distraction. A bus driver may take passengers into harm’s way by speeding or by failing to exercise proper technique in steering and handling. If a bus company hires a driver likely to be impaired in ways that interfere with proper heeding of warnings, or with proper vehicle handling, then that company will share responsibility for injuries that follow.

Failure of a bus company owner to provide drivers with appropriate drug and alcohol education and testing, or to require necessary driver skills, may contribute significantly to accident risk. In addition, bus company failures to maintain brakes and other systems on vehicle fleets have resulted in liability for the neglectful fleet owners, as have company failures to correct defects in steps and seats that have collapsed on to passengers during unexpected impacts.

Bus Accident Liability
When it comes to shouldering responsibility for injuries to bus passengers, even municipalities and agencies that regulate traffic flow are not excluded. There have been instances in which these entities have been found liable for injuries resulting from defective road design (including design defects that provide too little time for drivers to act on posted warnings), and resulting from inadequate road signage or dangerous road obstructions.

November 29, 2012

Prescription Overdosing in Florida Hospitals

by Gerson & Schwartz, P.A.

Hospitals Overdosing Patients on Drug Already Infamous
For Causing Liver Failure

Findings published in the November 12 edition of Archives of Internal Medicine reveal that hospitals may be overdosing a significant number of their patients who are being treated with the drug acetaminophen. More specifically, researchers found, in two carefully studied inpatient facilities, that overall, 6.6% of patients on acetaminophen received more than the recommended daily dose of the drug. Among older patients and patients already suffering from chronic liver disease, between 18% and 22% were given more acetaminophen than is deemed safe for these high-risk populations.

These statistics indicate a gravely serious breakdown in the care of inpatients, but they are particularly concerning in light of the fact that acetaminophen, best known as the active ingredient in Tylenol, poses unusually high risks for liver damage at any dose. Acetaminophen’s infamous capacity to poison the liver has been the foundation of many liver-injury lawsuits brought against Tylenol’s manufacturer over the years, and news of institutional acetaminophen overdosing lends a new urgency to claims such as those raised by Charlotte Lee Thompson, a Floridian who suffered serious liver damage while taking Tylenol in 2008, and whose case against Tylenol’s manufacturer was very recently moved from a Florida state court to a Florida federal District Court.

The Well-Known Dangers of Acetaminophen

As stated in Ms. Thompson’s lawsuit filing, acetaminophen is the leading cause of acute liver failure in the United States. The above mentioned Archives of Internal Medicine report confirms this, and adds that acetaminophen is linked not only to liver injury, but also to blood clotting disorders and deafness. It is particularly easy to overdose on acetaminophen because the drug is a common secondary ingredient in many other drug products, and patients who are unaware that one of their medications contains acetaminophen may add Tylenol (or a store-brand equivalent) to their drug regimens, unwittingly exceeding safe dosage levels. This accidental overdosing can become chronic or “staggered,” and according to the February 2012 edition of the British Journal of Clinical Pharmacology, staggered acetaminophen overdosing is particularly likely to cause liver toxicity with life-threatening effects such as multiple organ failure.

In 2009, the U.S. Food and Drug Administration (FDA) recommended that acetaminophen manufacturers place stronger warnings about the risk of severe liver damage on their products. In 2011 the FDA directed manufacturers of combination drugs containing acetaminophen to limit acetaminophen content to 325 mg per unit. Effective earlier this year, in response to FDA pressure and high rates of acetaminophen-related liver failure, Tylenol’s manufacturer lowered the maximum daily dose for Regular Strength Tylenol.

The Consumer’s Right to Adequate Warning
Lawsuits filed on behalf of acetaminophen victims are generally framed as product liability claims, in which injured individuals focus on the unusual dangerousness of the drug and the inadequacy of warnings placed on product packaging. In the Florida case brought by Charlotte Lee Thompson, Ms. Thompson explains that in February of 2008, she took Tylenol for several days, all the while keeping her dosage within the limits recommended on the product packaging. During this period, she was admitted to hospital, on an emergency basis, for severe liver damage. She required over 10 days of hospitalization, enduring substantial pain and suffering, and later suffered a loss of earning capacity.

Ms. Thompson asserts that Tylenol is defective, unreasonably dangerous to consumers, and not safe for its intended use. Her complaint also states that she should have been warned that Tylenol should not be taken on an empty stomach, and that at the time she took the Tylenol, the manufacturer-recommended dosage was too high. In addition to these claims, Ms. Thompson has alleged that Tylenol’s manufacturer breached the implied warranty of safety that goes with consumer products like Tylenol. Ms. Thompson hopes to recover damages to cover her medical expenses and economic losses, along with damages for physical and emotional injuries and punitive damages.

November 26, 2012

School Bus Shooting in Homestead: One Girl Killed

by Gerson & Schwartz, P.A.

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.