Author: Gary Drucker

CAN I BE FOUND PARTLY AT FAULT IN AN ACCIDENT CASE IN FLORIDA? WHAT IS COMPARATIVE FAULT IN FLORIDA? HOW DOES IT WORK?

In the last blog, I discussed premises liability and specifically slip and falls and trip and falls accidents cases. 

When people fall and are injured, and assuming a jury later finds that the landowner or business is negligent for the fall, the question commonly raised by the defense is that the injured person is also at fault for the fall.  This is called comparative fault.  

The general argument made by defense counsel is that the plaintiff bears the burden of caring for themselves and they were negligent in doing so which caused the injury.  With a liquid on the ground type of case the defense position would be:  look the liquid was right there in front of the plaintiff and had they simply looked to the ground, they would have seen it and avoided it.  Let’s say that someone goes to a business and there is a leaky air conditioner that the business owner has known about but has not fixed.  If the plaintiff falls in that liquid on the ground, this would generally make for a pretty strong negligence liability case against that business owner.  If a jury in court would find that the business owner was negligent, the next question would be whether they also find that the injured person was also at fault (comparatively at fault) for the fall.  If the jury would answer that question also in the affirmative, then they would have to apportion fault between the two parties, i.e. x percentage to one party and x percentage to the other party and the numbers must equal 100 percent.  So a jury could find 10 percent on the injured party and 90 percent on the business owner, or it could find 90 percent on the injured party and 10 percent on the business owner.

How does this comparative fault generally work out in a slip and fall case?  Generally, if the injured persons damages are $50,000.00 between medical bills, lost wages and pain and suffering and the jury found that the plaintiff was 10 percent comparatively at fault, then the jury award would be reduced by 10 percent and the judgment would be for $45,000.00.  On the other hand, if the jury found plaintiff was 90 percent comparatively at fault, then the jury award would be reduced by 90 percent and the judgment would be for $5,000.00, and so forth. 

In working on these cases, trying cases and reading jury verdicts, it is very common for juries to find comparative fault in slip and fall cases as usually the thing that the injured person is falling on is not hidden and right in front of them, so the argument that if they would just look down is very persuasive to juries and hence you see this type of findings by juries.  Usually, the counter-argument to this defense position is that when the client is in the business, the business is usually doing things to encourage their customers to look around the store, like sales signs and so forth.  Also, people generally do not look to the floor when they walk and they generally assume the area inside a business is safe to walk without slipping and falling.

All of these examples are of course very case specific and every case needs to be legally analyzed, by an injury attorney  or an accident attorney, as there may be specific laws that apply to a certain case.  Please feel free to call with any questions on this topic or any topic

IN FLORIDA, DO YOU WIN A CASE SOLELY BECAUSE YOU FALL IN A BUSINESS?

A few times a year, someone will call me and advise that they want to hire me to get them money as they fell at a store; however, the client did not go to any doctor and the client is not claiming any sort of injury.

Slip and Fall accidents happpen in people homes, in local businesses, in strip malls business, in retail mall outlets and essentially at any property.  My law firm can help when someone is INJURED in a fall and where there is liablity against the landowner/land occupier.  This area of law is called premises liability, meaning liability of the landowner or occupier of someone that is on those premises.

The first thing that is important to understand in this area of law is that Florida law is clear that the owner or occupier of property is not automatically responsibly just because someone is injured on the property.   This seems to be one of the most common misconceptions of this area of law.  People believe that SOLELY because they were injured on the property, that business owes them for medical bills and so forth.  i can tell you that the law states, generally, that negligence must be proven before a business owes someone for medical bills, pain and suffering, etc.  For example, if someone trips on their own shoe laces at a business and thus it is the person’s fault as opposed to the fault of the business, they would generally not have a case to recover money resulting for that fall AS THE INJURY IS NOT THE BUSINESS’S FAULT!

People ask me: if there is water or some liquid on the floor, does that mean that the business owes them for medical bills, pain and suffering, lost wages, etc.? Again the answer is maybe.  If the water is leaking from a refrigerator or air conditioner that the business knew about, then this would be a strong case for liability against the business.  However, if there is videotape (and nowadays video is very common) and if two minutes before the person fell, another customer spilled some liquid on the floor and this is what caused the fall, then this would be a much more difficult case.  The reason this case would be more difficult is that, as against the business, they would be able to argue that there was nothing that could be done to prevent the accident and therefore they are not liable.  In general, fall cases on transient liquids are “failure to warn” cases, unless it can be shown that the business or one of it’s employees put the liquid on the ground, knew about it or the liquid came from an air conditioner in the business, etc.  So if the video would show that the spill was just a few minutes before the fall, then it would be hard for the injured person to argue that the business “failed to warn” as likely it would be determined that there was not enough time for them to warn.

Another issue in the slip and fall cases is what is known as comparative fault, which is the legal position that while the defendant (landowner or business in the cases I am discussing here) is at fault, the plaintiff (the injured person) is also at fault and thus fault should be apportioned.  I will discuss this issue further in another post, so please look out for other posts on comparative fault.

There is obviously a lot of information here and of course every injury case is unique.  My law firm offers free consultations on accident cases like the ones described above and for car accident cases.   This advise is based on Florida law and other states laws may vary significantly from Florida.

¿Tengo que llevar protección contra lesiones personales (PIP) en la Florida?

Esta es una pregunta muy difícil de contestar. Hay dos razones generales para tener cobertura de lesiones corporales – legales y morales. Desde una perspectiva moral, es bueno tener cobertura de lesiones corporales de manera que si usted fuera a herir a alguien no habría cobertura para eso. Desde esa perspectiva, debe llevar consigo todo lo que puede pagar. Legalmente, es más importante tener límites más altos si usted tiene altos ingresos y activos. Obviamente, si usted fuera a tener límites más altos, esto más lo protege si usted fuera a ser demandado. Por otro lado, si usted no tiene ingresos y a prueba de juicio, entonces no habría pocos motivos para llevar a límites altos de lesiones corporales, legalmente. En general, es aconsejable consultar a un abogado, su asesor financiero y otros profesionales de averiguar una cantidad adecuada de cobertura de lesiones corporales para su situación.

WHAT IS THE SEAT BELT LAW IN FLORIDA? HOW DOES THE SEAT BELT LAW APPLY IN A CASE?

As a personal injury lawyer, I commonly get asked the question about the requirement of wearing a seat belt and how this plays out in an accident.

The seat belt statute provides, in part:

(4) It is unlawful for any person
(a) To operate a motor vehicle unless each front seat passenger of the vehicle under the age of 16 years is restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable, or
(b)To operate a motion vehicle in this state unless the person is restrained by a safety belt.
(5) It is unlawful for any person 16 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion.

Subsection ten (10) of F.S. 316.614 discusses how the seat belt statute should be used in a civil action:

A violation of the provisions of this section shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action. 

Clearly, this statute requires the use of a seat belt and makes some penalties if you do not wear the seatbelt.  However, while the statute does not make the failure of wearing a seatbelt negligence automatically, it can be used as evidence of comparative fault, in any civil action.

An example would be as follows.  Robert is a front seat passenger in a vehicle.   As a result of the negligence of the other vehicle, there is a car accident.  Robert is not wearing his seat belt.  He goes through the front windshield, causing significant scarring to his face along with some other injuries caused solely from the impact.  The other front seated person was wearing their seat belt and has minor injuries.  The defense may argue in the case that had Robert been wearing his seat belt, that he would not have gone through the front windshield and would not have the scarring on his face.  The suggestion by the defense would be that the jury should not award Robert the damages for his scarring but only the damages for the other injuries, due to his comparative negligence.  Of course, this would ultimately be decided by a jury and the facts of every case are different.

Common sense suggests that everyone should wear their seat belts.  There are cases reported in the newspapers where in major accidents when people where seat belts, the injuries are generally much less.  There are accidents where the only people in major car accidents with life changing injuries are those who were NOT wearing their seat belts.

If you have been in an accident, please feel free to call me for a free consultation.  I work on a contingency fee basis which means that I only charge a fee or recoup costs if money is recovered for you.

Does my health insurance have to pay medical bills related to an accident case?

It is common that private health insurance, MEDICARE, and or Medicaid pays medical bills stemming from an accident. The good news is that since the bills are paid the client is obviously not put in collections by the provider. However, generally most health insurance policies have subrogation clauses. This means that when health insurance pays medical bills related to a case they are entitled to reimbursement to the extent that the client recovers money. If the client never recovers money or loses the case in court, then they don’t have to pay the money back. This legal process is called subrogation