Tag: personal injury law

We wanted to start this blog on verdicts and settlements as a tool to assist attorneys value their cases. These awards do not mean that your personal injury case will have the same value as each of the cases mentioned below, but, by aggregating these verdicts and settlements, we begin to get a general idea what juries and adjusters may do. We also learn about some of the defense verdicts out there, which helps us understand which arguments and factual combinations are least effective.  Today we bring you a negligent security verdict.

Trying cases to a jury is an art, not a science. Therefore, what you are able to obtain for your client is largely related to your jury, the facts of your case, and your ability to put together a passionate and persuasive story. May we all try more cases to juries, for receiving an award from your peers is the best kind of justice.

PREMISES LIABILITY-NEGLIGENT SECURITY

NEARLY $1,000,000 AWARDED BY FLORIDA JURY TO A MAN ROBBED AT WAFFLE HOUSE

Facts: On April 19, 2014, Steve Long was at a Waffle House in Ft. Myers when he was attacked and robbed by three assailants. Plaintiff argued that Waffle House lacked security in an area known for rampant crime. The restaurant argued that Mr. Long was negligent for refusing to give the assailants his money or car keys, and denied that the area was known for crime. The Defense also raised questions as to Mr. Long’s credibility as a result of some contradictory testimony about the incident.

Injuries: Mr. Long suffered facial fractures and minor traumatic brain injury.

Award/Settlement: The jury found Waffle House liable for the Plaintiff’s injuries and awarded $907,212.

Venue: U.S. District Court, Fort Myers

Cause of Action: Negligent Security

Case: Long v. East Coast Waffles, 2:16-cv-00322-PAM-MRM

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Recently, a Miami jury awarded $27.7 million in punitive damages to the Pereira family after Judge Schlesinger allowed them to consider whether punitive damages should be awarded in a hit and run accident as a result of a defendant’s failure to stay on scene; a novel concept being that most behavior warranting punitive damages occurs before the wrongful conduct.

It was a Monday night on a one-lane road on Northwest 12th Avenue and Northwest 108th Terrace just before 9:30 p.m. Sixteen year-old Cash Pereira was skateboarding down the street when he was suddenly struck by the defendant, Gabriel Fleuricourt, from his skateboard. While the defendant claims it was an accident, and that he was just trying to pass the car ahead of him, the defendant’s next actions are what contributed to the punitive damages award and young Cash’s death.

The defendant, Mr. Fleuricourt, did not stop. He did not try and help. He did not stay and call the paramedics. Knowing that young Cash did not have anything to stand between his young body and the metal frame of his vehicle, Mr. Fleuricourt still made the wilful and deliberate decision to flee the scene where he had just struck young Cash off his skateboard. He never stopped to render aid to young Cash as he laid on the one-lane road. Stopping to render aid could have made a difference to Cash Pereira’s life. Stopping to render aid could have at least provided young Cash a chance.

In the Daily Business Review published on October 16, 2017, it was reported that prior to allowing the Plaintiff to move forward on punitive damages, Judge Scola, who was substituting for Judge Schlesinger, informed the plaintiff’s attorney that he needed to demonstrate that there was a connection between young Cash dying at the scene, and the defendant’s decision to flee rather than stop and render aid. Judge Scola wanted more support because there is no case law explicitly stating that leaving the scene of an accident warrants punitive damages as a matter of law.

Under Florida law, for punitive damages to be awarded, the plaintiff must prove that defendant “had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage…would result” or “that the defendant’s conduct was so reckless or wanton in care that it constituted a conscious disregard of indifference to life [or] safety.” In the plaintiff attorney’s second motion for punitive damages, he argued that a lack of timely medical treatment was the nexus between the defendant fleeing the scene and Cash’s death. This was corroborated by one of the detectives, who told the court that there were approximately ten minutes that passed between the crash and the arrival of the first responders. The detective stated that those minutes are critical and possibly could have saved Cash’s life. Judge Schlesinger granted the second motion for punitive damages, and at trial, the jurors awarded $37 million dollars to the Pereira family, which included $27.7 million in punitive damages.

Take away

When there is no case law on whether punitive damages are permitted as a matter of law, as an advocate, you cannot back down from arguing why you believe your specific case warrants punitive damages. It requires more work. It requires more analysis, but in the end, your ability to think outside the box and think through the facts of your case is absolutely necessary to help your client, and the greater community at large. While compensatory damages are meant to pay your client for what he or she specifically suffered, punitive damages are meant to tell your surrounding community that the conduct in question, like leaving the scene of an accident, will not be tolerated.

Tip your cap to attorney Justin Shapiro for his great work for the family of young Cash Pereira and for the great work that he has done for plaintiff’s all over Miami and Florida. As s result of his passionate and zealous advocacy, plaintiff’s attorneys around the state, and possibly the country, can use Judge Schlesinger’s order as persuasive authority when advocating for punitive damages in hit-and-run accidents.

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When you are injured through the negligence or wrongdoing of another, it can be a pretty traumatic event. Undoubtedly, your injury involved pain and suffering, mental anguish, and other terrible inconveniences. In Florida, if you or a loved one has been injured in a motor vehicle accident, a recovery for pain, suffering, mental anguish, and inconvenience may be obtained. However, under Florida law, in the great majority of motor vehicle accident cases, in order to make a recovery for pain and suffering, the permanent injury threshold must be satisfied.

Specifically, Florida Statutes § 627.737, provides that in any tort action brought against a person legally responsible for his or her actions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury … arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

  • Significant and permanent loss of an important bodily function;
  • Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement;
  • Significant and permanent scarring or disfigurement;
  • Death

Accordingly, in a great number of motor vehicle accidents, if a doctor or medical expert does not make a finding that your injury consists in whole or in part of one of the 4 (four) above-mentioned elements, then it is likely you cannot recover damages in tort for pain and suffering.

However, in the law, because everything always seems to “depend” on something else, it should be noted that you do not always need to have a permanent injury to recover pain, suffering, mental anguish, and inconvenience. Knowing as much could make a world of difference for your case.

In Utvich v Felizola, 742 So.2d847 (Fla 3d DCA 1999), a taxi driver (Felizola) was injured after being rear-ended by another car (Utvich). The tax-driver sued the other car for his injuries, and at trial, the jury awarded the taxi-driver damages for past lost wages, past medical expenses, past pain and suffering, and loss of future earning capacity. The attorneys for the other car argued that the taxi-driver could not recover damages for pain and suffering because the tax-driver did not prove a permanent injury.

The court, however, held that “taxis are definitionally excluded from the no-fault law,” citing Florida Statutes §627.733(1). The court went on to say that in Lasky v. State Farm Ins. Co., 296 So. 2d 9, 21-22 (Fla. 1974), taxis, motorcycles, buses, and commercial vehicles do not come within the provisions of the no-fault act. As such, such vehicles do not fall within the scope of the statutes requiring claimants to prove permanency.

For most involved in a motor vehicle accident, this caveat might not mean much. But when you have been injured in an accident involving one of these types of vehicles, knowing you may be entitled to pain and suffering damages regardless of proving permanency could go a long way for you and your family.

If you or a loved one has been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.

Give us a call or fill out the contact form for a free consultation.

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Insurance companies will use everything they can to reduce your amount of recovery. A few common tactics insurance adjusters and defense attorneys will use when building their case against you are the following: 1) hire investigators to take pictures/video of you if they suspect you are not as injured as you claim; 2) run a variety of background checks to uncover prior accidents, and 3) request your prior medical records to discover whether you had a prior accident or condition that could have been the cause of your present injury claim. As a result, when you are treating for injuries you sustained from an accident, providing a full and accurate medical history to your doctor is very important.

Why an Accurate Medical History is Important?

By thinking through your medical history chronologically to ensure your doctor has the most accurate and complete record, you can take a lot of steam out of the defense’s case. When insurance companies and defense attorneys receive your medical records, they closely analyze them with the hopes of minimizing or completely destroying your right to recovery. They look for inconsistencies, contradictions, or any other explanation to say they are not responsible for your claimed injuries or condition. If you have a prior injury, and you failed to mention it, they will say your claimed injury and pain and suffering did not result from the incident with their insured, but from some prior event which you failed to disclose to your treating physician.

When your doctor has an accurate account of your past it reduces the ability for the defense to: 1) hurt your believability in front of the jury; 2) argue that you were purposely hiding your medical history just to make a recovery for an unrelated accident; and 3) argue to the judge that you are attempting to commit fraud upon the court. While fraud on the court takes more than a few inconsistencies[1], some insurance companies and defense attorneys will try and make such an audacious claim to reduce your legitimate right of recovery.

It is understandable you may be worried to mention that prior accident or surgery. You have a high medical bill. You are in pain because the defendant re-aggravated a pre-existing condition, and you are scared to death the insurance company will try and use your prior injuries to deny compensating you when you are in worse pain as a result of their insured’s negligence. Just relax, take a deep breath, and know that the law provides you protection.

Why the Prior Accident or Injury does not Ruin Your Case—the Eggshell Doctrine

Wrongdoers and their insurance companies do not get to pick and choose who they harm. As a result, your preexisting injury or condition is no defense to the harm someone causes you. This is known as the eggshell doctrine, and it essentially means that the defendant must take you as he finds you. While a preexisting injury can cause someone to be more prone to future injury, it is still no defense. If you have been hurt as a result of a prior accident, and your condition worsened as a result of a subsequent accident, you should be compensated to ensure your present and future care is paid for by the negligent party and/or his insurance company.

Conclusion

Intimidating? Perhaps. Should you be? Not if you are up-front with your doctor and your attorney. The most important piece of advice when treating with your physician is to be up-front about your medical history (particularly prior injuries you’ve claimed) and to not hold anything back from your attorney about your prior accidents/injuries. Sometimes you forget and sometimes you simply do not remember…small mistakes won’t be the end of the world, but failing to think about that prior collision or rollover where you were taken to the hospital could really hurt your case. It is bad enough that you have to wait for a recovery while you treat for your injuries, and incur unwanted medical expenses. Let’s not make it easier for the billion-dollar insurance companies to avoid giving you what you deserve when the wrongdoer is still responsible for aggravating your pre-existing injury or condition.

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[1] “Fraud . . .  is more than a simple assertion of facts in a pleading that might later fail for lack of proof.” Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012).“Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim.” Howard v. Risch, 959 So.2d 308, 311 (Fla. 2d DCA 2007).

 

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If a person is injured by the fault of another that person is entitled to money in order to make them whole.  The idea is that even though the wrongdoer cannot take back the injury caused, he can be made responsible for providing money to improve the quality of life of the person he or she injured.  This is an area of the law known as torts in the legal community and more commonly referred to as personal injury.

There are three general ways that a person can be responsible for injuries caused to another under the law.  One such way is when the wrongdoer does an intentional act that causes an injury to another.  The second way is when the wrongdoer does some act or fails to do an act without the intention that injury occur but which a reasonable person should have known would cause injury to another, this is negligence.  The third way is when a wrongdoer does some act that is not negligent or is not intended to cause injury, but is some act that has been deemed by the legislature to bring about “strict liability.”  Strict liability is a doctrine that makes a person responsible for the consequences arising out of performing certain acts, regardless of whether the person was acting within the proper standard of care.  In essence, these are activities that the lawmakers have deemed so dangerous that whoever is doing them proceeds at their own risk because they will be held responsible for any injuries arising out of the activity even if they exercised the outmost care in performing the activities.

Examples of intentional acts:

  1. Someone stabs another at a bar.
  2. Someone is pushed off a ledge intentionally.
  3. Someone is intentionally run over with a car.
  4. Someone is punched in the face.

Examples of negligent acts:

  1. Car accident where the driver who caused the accident was distracted.
  2. Slip and fall where the owner of the premises failed to remove the danger that caused the slip and fall. (Puddle of water, banana peel, newspaper).
  3. A person is victimized by a third party in a place because the owner of that place failed to provide an adequate amount of security to prevent crimes from happening at his locale.
  4. A medical professional is careless when doing a procedure and the patient is injured as a result.

Examples of strict liability:

  1. A person is injured by someone else’s wild animal where the injury caused results from the dangerous propensities that are characteristic of that animal.
  2. Injuries caused from the storing of ultra-dangerous products like uranium.
  3. Injuries caused from ultra-hazardous activities like demolition work or hauling of dynamite.

What remedy do I have if I have been injured?

If you have been injured through the acts of another you may able to received money damages.  The amount of money that you are entitled to varies depending on the nature of the injury, the extent of the injury, and factors such as loss of wages, loss of consortium, etc.  If you’d like to know more about the types of damages available to you in Florida see our article on damages.

If you have been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.  Give us a call.

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