Civil Law

Published on: June 5, 2020

Proving Constructive Knowledge in a Florida Slip-and-Fall Lawsuit

Florida slip-and-fall lawsuit Guests who are injured on someone else’s property may have the option of filing a claim to be compensated for injuries by the property owner. These are a type of premises liability claims, and one example is if a patron at a grocery store is injured in a slip-and-fall accident on a “transitory foreign substance”. To prevail in a Florida slip-and-fall lawsuit, F.S. 768.0755 requires the plaintiff’s needs to show the defendant property owner/manager had either actual or constructive knowledge of the slipping hazard. A “transitory foreign substance” was defined by the Supreme Court of Florida as “any liquid or solid substance, item or object located where it does not belong.” Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 317 (Fla. 2001)

Actual knowledge means the property owner was fully aware of that particular danger at that specific place and time. Proving this can be tough. Constructive knowledge is how most of these cases are established.

Constructive knowledge can be established by laying out circumstantial evidence that shows:

The hazardous condition existed on site for so long that the business establishment should have known of it were they exercising ordinary care;
The dangerous condition occurred with such regularity that it was foreseeable.

This element is critical. Recently, Florida’s Fourth District Court of Appeal upheld the dismissal of a Florida slip-and-fall lawsuit of Oliver v. Winn-Dixie Stores, Inc. on the basis that the plaintiff had failed to establish defendant’s constructive knowledge of a slip hazard. Continue reading

Published on: May 21, 2020

Assumption of Risk Not Complete Defense in Florida Premises Liability Cases

by Leland Garvin

Florida premises liability Property owners in Florida are expected to maintain their site in a condition that is safe for patrons, guests, and residents. However, in premises liability cases where an injured person knew or should have known the potential for danger, property owners often raise something called the “assumption of risk defense.”

Assumption of risk is a legal doctrine that holds that a person cannot recover compensation for injuries they suffered by voluntarily exposing themselves to a known hazard. In other words, the property owner argues that the person who was injured knew about the risk but took the chance of being injured anyway.

In some states, if a property owner can prove the assumption of risk, the plaintiff will not be allowed to recover any damages for their injuries. In Florida though, it works a little differently because of something called, comparative fault; as outlined in F.S. 768.81. Comparative fault allows individuals to pursue claims for damages – even if they are partially to blame. However, the amount they can collect will be reduced by their percentage of fault. So if a plaintiff wins $100,000 in damages, but the court finds the plaintiff was 30 percent at-fault, the most plaintiff will be awarded is $70,000.

Published on: February 19, 2020

Botched Plastic Surgeries Lead to Medical Negligence Lawsuits, Florida Law Change

by Leland Garvin

Florida medical negligence The notion of the “ideal” body shape is ever-changing, and in Florida, plastic surgeons are in high demand. However, it appears the lure of steep profit margins has led some physicians who are not uniquely qualified, experienced or careful to offer complex medical procedures at rock-bottom prices – often with tragic results. A recent series of botched cosmetic surgeries in South Florida has led to a spate of medical negligence lawsuits, a change in Florida law (effective 1/1/20) and a pending Florida Supreme Court ruling.

Our South Florida medical malpractice attorneys know the one procedure sparking the greatest concern of late is the “Brazilian butt lift,” or BBL. The procedure, which aims to enhance one’s rear with a transfer of fat to the gluteal region from the abdomen, lower back, thighs and/or hips, requires precise and careful application. The greatest risk is the possibility of a heart or pulmonary fat embolism. This happens when the fat is accidentally injected deep into the muscle tissue, making its way into the bloodstream and causing obstruction of major blood vessels of the heart or lungs. Another potential danger is that of punctured internal organs. Both have proven life-threatening and/or fatal.

NBC-6 reports more than a dozen women have died in South Florida in recent years during or shortly after having a BBL. Several of their families have filed medical negligence /wrongful death lawsuits. They assert that the deaths and injuries that occurred were not the result of unavoidable complications, but rather serious mistakes by the medical professionals involved.

Factors that led to a higher risk of complications in BBL procedures included:

Performance of the procedure by an unlicensed practitioner;
Using injectables and fillers instead of fat;
Unsterile instruments/operating area;
Intramuscular injection of fat.
Continue reading

Published on: February 11, 2020

Tourist Injury Lawsuits Against Theme Park Possible After Electric Shocks at Water Attraction

by Leland Garvin

Fort Myers tourist injury lawyer Federal job site safety regulators declined to fine an Orlando water park after closing an investigation into a series of electric shocks sustained by guests and workers earlier this year, but personal injury lawsuits could still be filed if any guests were hurt. Five lifeguards were reportedly hospitalized and several visitors were shocked, but media reports do not indicate anyone suffered a serious or lasting injury.

Florida theme parks are a significant draw in the Sunshine State, and owners/operators owe their guests a substantial duty of care to ensure they are not faced with unreasonable danger.

In this case, guests and lifeguards at Universal Studios’ Volcano Bay water park reported feeling the shocks – in the water and on the wet pavement near it – for hours before the park shut down.

The Occupational Safety and Health Administration (OSHA) concluded the danger arose from a grounding rod that was mistakenly driven through an electrical conduit way back when the park was being constructed. This led to damage to the electrical wiring, resulting in an electrical current being fed through the ground – ultimately reaching water and wet ground surfaces. Electrical readings on the sidewalk’s edge of the water measured between 20 and 30 volts of electricity.

Even 2nd graders know water-plus-electricity is a dangerous combination. This can be true even at relatively low voltage. As explained by The Ohio State University’s Department of Physics, the body’s actual resistance to an electric shock depends on the point of contact (where on the body it happens) and the condition of the skin (whether it’s wet or dry). That is why a 75-volt shock can be just as deadly as a 750-volt shock. Continue reading

Published on: January 3, 2020

Fla. 2nd DCA Urges State Supreme Court to Revisit Limited Damages in Florida Medical Malpractice Wrongful Death Lawsuits

by Leland Garvin

Fort Myers medical malpractice wrongful death The Florida Second District Court of Appear recently urged the Florida Supreme Court to revisit the question of whether a largely debunked “insurance crisis” still justifies limiting – or altogether prohibiting – damages to survivors in some medical malpractice wrongful death cases. As we will further detail in our post, the FL 2nd DCA sent a certified question to the Florida supreme court that centers around FL statute 768.21 and the Florida wrongful death damages cap.

As our Fort Myers medical malpractice attorneys can explain, state law currently bars adult children from recovering any non-economic damages in wrongful death medical malpractice lawsuits; this specific Florida wrongful death damages cap can leave families suffering and give bad doctors a free pass for wrongdoing. The effect of our law is that a negligent doctor or hospital may be held liable to pay non-economic damages for a patient who lives, has minor children and/or a surviving spouse, but not if that same patient dies with only adult children as survivors. This raises equal protection of constitutional concerns.

The 2nd District Court of Appeal has asked the state high court to reconsider this, calling it “a matter of great importance,” after ruling it had no choice but to dismiss the wrongful death lawsuit filed by the surviving adult children of a woman who allegedly died as a result of medical malpractice. Continue reading

Published on: October 19, 2018

Florida Supreme Court Rejects Daubert Expert Standard, Returns to Frye

by Leland Garvin

UPDATE: Since this writing, the Florida Supreme Court has done an about-face, deciding the more rigorous Daubert analysis will in fact be the new evidentiary standard in Florida cases, both civil and criminal. This will mean the bar to bring – and prevail – in Florida injury lawsuits is raised. In its May 23, 2019 decision In re: Amendments to the Florida Evidence Code, No. SC19-107, the court (now with three new governor-appointed justices since the last ruling) held Florida’s evidence standard should align with that used by federal courts and most other states. The court previously rejected adoption of Daubert following a 2013 legislative amendment, citing procedural issues and “grave constitutional concerns.” In this 5-2 ruling, the court now says those concerns are unfounded.

On October 15, 2018, the Florida Supreme Court, settled the long-running debate about the appropriate admissibility standard for expert opinions thought Florida state courts. In a case that began with a plaintiff who developed mesothelioma after years of exposure to asbestos, the Florida Supreme Court held that Frye, not Daubert, is the appropriate test.

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A sharply divided Florida Supreme Court on Monday said a controversial 2013 law about expert-witness testimony was an unconstitutional infringement on the court’s authority.

Published on: February 26, 2012

Increased Damage Caps on Governmental Wrongdoing in Florida

by Leland Garvin

The State of Florida can now be liable for up to $200,000 per person and $300,000 per tort claim, effective Oct. 1, 2011. That’s up from the $100,000 and $200,000 caps that had been in existence for lawsuits against the state, its agencies or political subdivisions.

While the increase is welcome news to victims of governmental negligence, the new caps may still be woefully inadequate when it comes to compensating a victim for a personal injury, wrongful death, or other injuries caused by t. Suing the State of Florida is a complex process, which includes extensive pre-suit requirements and as such; Government liability claims in Florida require an experienced law firm. As these relatively modest caps indicate, identifying other entities that may be liable for damages can be critical when it comes to securing a victim adequate compensation in the wake of a serious injury or fatal accident. The sovereign immunity limits in Florida apply to schools, police departments, counties, and many other offices and agencies under state jurisdiction.

Florida Statute 768.28 sets the still relatively low damage caps, which were previously unchanged for nearly three decades. Lawmakers contend the caps have deterred claims against the state as there is also 25 percent cap on attorney fees which provide for a maximum fee of $25,000 (or $50,000 under the new cap). While that may sound adequate to some, bringing a serious personal injury, auto accident, or wrongful death lawsuit to trial can cost a law firm hundreds of thousands of dollars. Whether in Fort Myers, Naples, or Fort Lauderdale, finding a firm with the resources to properly handle your case is an important consideration when choosing an attorney. Injured claimants must also consider that their lawyer will only get paid if they are successful in making a recovery on behalf of a client.

Published on: November 21, 2011

Florida Supreme Court to Rule on Medical Malpractice Damage Caps

by Leland Garvin

2012 could be historic for injured patients if the Florida Supreme Court follows the lead of Georgia, Illinois, and other states who have declared caps on damages in medical malpractice cases to be unconstitutional. The courts have reasoned that limitations on damages violate an individual’s access to the courts, treat the medical profession different from all others, and often force the state taxpayers to absorb the cost of future care.

Medical malpractice law has always been a hot topic, especially in Florida, where extensive lobbying by hospitals, doctors, and the insurance industry has led to major changes affecting the rights of injured victims. While medical professionals have argued that malpractice lawsuits have caused billions of dollars to be wasted on unneeded medical tests; yet privately, they admit that these same tests would be ordered if the patient was their family member.

As Florida medical malpractice attorneys we have been closely monitoring the debate over medical malpractice caps, which is set to come before the Florida Supreme Court next year.

Published on: October 8, 2009

Medical Malpractice Recovery Rights for U.S. Soldiers?

by Leland Garvin

The United States House of Representatives yesterday (10/7/09) took action that will hopefully lead to the end of discriminatory treatment of soldiers injured by medical malpractice.

Since the Feres decision by the United States Supreme Court in 1950, soldiers have not been able to bring actions for medical malpractice against the government; this is true irrespective of the level of disregard for their well being. Since the 1950’s untold numbers of soldiers after serving acting duty have been subjected to substandard treatment in military medical facilities. The House Judiciary Committee has now approved the Military Medical Accountability Act which would allow soldiers the same rights as private citizens injured by medical malpractice.

The bill named after Marine Sgt. Carmelo Rodriguez, who served his country with honor for nearly a decade, including a tour of duty in Iraq, and died as a result of preventable medical negligence. A blotch on his buttock went untreated and misdiagnosed multiple times by military doctors. By the time Sgt. Rodriguez learned it was a cancerous melanoma the damage was done. Sgt. Rodriguez, the father of a 7 year old son passed away shortly after a proper diagnosis.

Published on: April 29, 2009

Palm Beach Appeals Court Affirms $6.4 Million Verdict in Med Mal Case

by Leland Garvin

Back in June of 2007 attorney Jeff Garvin of Fort Myers and Wilton Strickland of Fort Lauderdale successfully argued that medical malpractice was committed when a Broward County otolaryngologist (ENT) failed to diagnose tongue cancer.

A Broward County Jury awarded the Garvin Injury Law client $6.4 Million Dollars after hearing two weeks of testimony. Garvin argued that the Pembroke Pines Doctor was negligent when he failed to notice several recognizable symptoms of tongue cancer. This argument was strengthened when evidence was presented that the client sought a second opinion and this doctor noticed cancer almost immediately. Unfortunately for the client, the cancer had already spread and required extensive surgery to remove the growth.

After this surgery, which required the removal of most of his tongue, the client was left with a difficulty speaking, can’t swallow, and is forced to eat blended food through a tube in his stomach.