Tag: personal injury

If you’ve been shot in Miami you will find yourself in a roller-coaster of police, medical providers, pain, suffering, and medical bills.  Most people who are shot in Miami know that there will be a criminal investigation, and hopefully the person who shot them will be held accountable in the criminal justice system. Other than that, most people do not know what other remedies are available to them if they are shot in Miami.

Here are some things that you should know if you’re shot in Miami.

The police and prosecution can only help you as far as the criminal justice system goes

The prosecutors and the police will do what they can to help you get justice in the criminal justice system. In laymen terms that means that they will prosecute the person who shot you and try to put them in jail for what they did to you. While that is definitely a helpful measure of justice, that will do nothing to help you regain your mobility, pay your medical bills, and compensate you for the pain and suffering that you went through and may continue to go through. This is because the criminal justice system isn’t set up to make you whole, it is set up to punish the person who injured you. In the best of cases in the criminal system you can expect that the person who shot you will be punished to some extent, and nothing more than that. Your medical bills, your loss of employment, your lack of mobility, and every other aspect of your injury will be something that you would have to deal with, without any help from the police or prosecutors. The system is just not built for that.

If you were shot in Miami on private property, the property owner may have to compensate you for what happened to you

All is not lost, however. If you were shot in Miami while on private property, like for example, a Walmart or McDonald’s, or even a housing complex, the property owner may have to pay you for your losses. This is because Florida law requires that property owners take reasonable measures to keep these kinds of incidents from happening on their property. If you’ve ever been somewhere and you’ve seen security guards, prominently displayed cameras, lighting, etc., you have witnessed the kind of reasonable measures that property owners are expected to take. The most common example is that of a night-club or bar where you have one or more bouncers to ensure the safety of the customers.

Unlike the criminal system, the civil justice system is perfectly equipped to hold the property owner accountable for his/her failure to provide adequate security. Under the civil system you are entitled to receive money for pain and suffering, medical bills, and lost wages. This means that if the property owner’s failure to establish reasonable security measures contributed to you being shot, you should receive money from the property owner to make you whole.

Your shooting was likely preventable and avoidable, if the property owner had done the right thing

Unfortunately, the great majority of shootings in Miami could have been avoided or prevented had the property had the property owner put on reasonable security measures. There are way too many shootings happening on or around the same properties. If these property owners spend some of their business profits to add security guards, cameras, and proper lighting, a lot of these shootings would never take place in their property.

Most property owners do not do the right thing when it comes to protecting their patrons and tenants

Most property owners, however, do not do the right thing when it comes to protecting their patrons and tenants. This is because additional security measures affect their bottom line. If they have to pay a security guard, that is money that has to come out of the business profit margin. More money for security means less money in the pocket of the property owners. It is sad that we live in a world where people and companies are willing to risk people’s life and limb in order to save a couple of bucks, but that is the world we live in. This profits-over-people mentality leads to countless deaths and shooting injuries.  

While the prosecution and police are there to hold the shooter criminally accountable, there is no government body that is set up to help you hold the property owner civilly accountable

If you’ve been shot in Miami, you know that the police and prosecutors are available to help. In fact, those two bodies are designed for the purpose of investigating and prosecuting crimes. But you’d be surprised to learn that there is no government body that is set up to help you hold the property owners accountable if you are shot in Miami. There are no government civil prosecutors or police for that. You’re literally on your own.

But that’s not entirely accurate. While there are no government bodies that are set up to help you get the money that you deserve for your loss, there are civil lawyers who sue on behalf of people who are injured in shootings. We at Cornish Hernandez Gonzalez handle these kinds of injury cases and have recovered millions of dollars for our clients.

If you find yourself in the unfortunate position of being shot while on private property, we can help. Do not hesitate to give us a call or fill out the form.

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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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One of the lessons I have had to learn as a civil plaintiff’s attorney is how difficult it can be to collect money from defendants … even after they signed a written settlement agreement. My goal in this article is teach you how to properly close a lawsuit (pursuant to a settlement) so that you can easily file a motion and have the judge enforce the settlement.

Jurisdiction

If you want the judge to be able to enforce the judgment, you must close the case in a way where the judge retains jurisdiction. If the Plaintiff dismisses his/her own case with prejudice (as many settlement agreements demand), then the judge forever loses jurisdiction on that case and CANNOT enforce that case’s settlement. MCR Funding v. CMG Funding Corp., 771 So.2d 32 (4th DCA 2000); Dandar v. Church of Scientology Flag Service Organization, 190 So.3d 1100 (2nd DCA 2016). So, DO NOT dismiss your own case with prejudice unless you want to have to file a whole other lawsuit (breach of contract) to enforce your settlement.

Here is the simplest and easiest way to ensure that the judge retains jurisdiction to enforce the settlement:

  1. Have the judge enter an order of dismissal.
  2. Include the following language in the order of dismissal “This Court reserves jurisdiction to enforce the terms of the settlement agreement.” Dandar, 190 So.3d 1100.

Here is a more complicated (and therefore less desirable) way to ensure that the judge retains jurisdiction to enforce the settlement follows:

  1. Bring your settlement agreement to the judge for her to review.
  2. Have the judge enter an order of dismissal.
  3. Write the order of dismissal in a manner that incorporates the settlement agreement into the order. MCR Funding, 771 So.2d 32;

Motion to Enforce Settlement

The motion itself is fairly simple and straightforward. You need to make sure you include the following three (3) items in your request for relief: (1) enforce the settlement agreement, (2) movant interest, and (3) attorney’s fees associated with bringing the motion to enforce (assuming your settlement agreement allows for attorney’s fees to enforce the agreement).

The body of the motion can be pretty short. You must state (1) what you and the defendant agreed to (the part the defendant breached) and (2) that the defendant breached your agreement and how the defendant breached the agreement.

I like to include a Statement of Facts that includes a timeline of the end of the case, the settlement agreement, and the breach. I make sure to include dates that I contacted the defendant to ask them to perform their portion of the contract for two reasons: (1) because professional courtesy demands contacting opposing counsel before getting the court involved (it’s always possible that opposing counsel made a good faith mistake) and (2) because, if it does go to the judge, you look good because your were being courteous and professional.

Illustration

I recently went through a situation where the defendant and my client agreed to settle a case for a certain amount of money. We announced it in open court. The judge entered an order dismissing the case with prejudice. And then we waited for the defendant to pay us. And we waited. And waited.

The settlement agreement called for us (the Plaintiff) to dismiss the case with prejudice once the settlement agreement was executed. However, the judge became impatient and entered the order of dismissal on her own initiative. Luckily for us, her order specifically reserved jurisdiction to enforce the terms of the settlement agreement. So, after an inordinate amount of time and many unreturned emails and phone calls, we emailed the defendant our motion to enforce and let them know we would file it within a week if we did not have checks in hand. And wouldn’t you know it, the check miraculously appeared after three (3) days.

All in all, it took a number of months from the day we announced in open court that we had settled the case to the day that the defendant paid what they agreed to pay.  I had always thought that, as a lawyer, the legal work was the most difficult part of the job. I have since learned that collecting money from defendants can be even more difficult.

In conclusion, if you are going to dismiss your case pursuant to a settlement agreement, have the judge enter an order of dismissal. Make sure that order of dismissal specifically reserves jurisdiction to enforce the settlement agreement. And be courteous to opposing counsel. Chances are you will be able to work the issue out without having to involve the court.

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How do you get the money you deserve from an insurance company?

Insurance companies want to make and keep as much money as they possibly can. That means they are happy to take your monthly premiums but are loath to part with any of that money to pay Plaintiffs on insurance claims. They will do everything they can to avoid paying all of what they owe.

Insurance companies pay a fraction of what they owe by betting against the Plaintiff’s lawyer. They bet that the Plaintiff’s lawyer would rather settle the case for a quick buck than fight for the amount that the Plaintiff deserves. So, they offer a fraction of what the case is worth and bet that the lawyer settles it. The insurance company dares the lawyers, “We dare you to walk away from this small settlement off and fight for you client.”

The sad part is, most lawyers nowadays back down from that dare. They accept easy money and leave their clients out in the cold. What’s worse is that the more often lawyers back down, the less the insurance companies are willing to pay. The insurance companies thinks: if I can get $30,000 lawsuits to go away for $2,000, why not make them go away for $1,000.

A few reasons why some lawyers don’t fight for their clients:

  • Many law firms are “mills,” high volume practices that make little bits of money from lots of cases. They don’t practice law, they practice advertise and settle. These law firms sign up clients, beg the insurance company for money, and accept whatever they get. Working up cases goes against their business model. So when they have a client that won’t settle for the crumbs an insurance company offers, the “mill” will usually fire their own client!
  • Filing a lawsuit and litigating a case is difficult and can take up a lot of time. If you file a lawsuit, you have to pay $400 just to file it, you’ll have to write motions, find and speak to witnesses, go to court, and deal with unpleasant people on the other side. Most lawyers would prefer not to go through that headache (forgetting that all of the above is their job description). So they take a discount on justice, their clients suffer, and they call it the price of not having to work.
  • Most lawyers are afraid to go to trial. Once you file a lawsuit, the natural endpoint of that lawsuit is a trial. Trials have high-stakes and require tons of preparation and time without any guarantee that you will win. Plus, to be any good at trial, you have to have a healthy amount of trial experience. The sad truth is that trials are so rare nowadays, that most people who call themselves “trial lawyers” haven’t even tried 10 jury trials. So, when the case starts getting close to trial, most lawyers will try every way they can to get out of trial; typically that means settling for less than the client deserves.

At CHG, we believe it’s time to change the paradigm. A lawyer’s default position shouldn’t be to settle a case, it should be to go to trial. The best way to deal with insurance companies is the same way you deal will bullies: fight them. Dare us to walk away from a crumby settlement offer and fight? Gladly. That’s the only way to ensure that our clients get their full measure of justice.

Put six in the box.

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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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In a Florida personal injury case a person may be entitled to receive money meant to compensate many of the negative impacts that the injury caused the person in his or her every day life.  The money is meant to be a way for the wrongdoer to put the injured person back in the position that he or she was in at the time of the injury, also known as making the injured person whole. But sometimes, when the wrongdoers’ act is specially outrageous, the injured person is entitled to damages meant to punish the wrongdoer.

Here is a brief explanation of the many possible things you may be entitled to recover money for in Florida if you have been injured.

Economic Damages

Economic damages are those that can be quantified in a dollar value and are easily measured.  These are things like past and future medical expenses, loss of wages, loss of earning capacity, etc. This category of damages is meant to pay you for money that you spent (or are going to spend) as a result of the injury, and also money that you would have earned had you not been injured.

Non-Economic Damages

Non-economic damages are damages that cannot be measured in dollar amounts at the outset.  They are the kind of thing about which reasonable minds may differ and for which there is no readily available market for in everyday life.  These include pain and suffering, mental anguish, loss of enjoyment of life. In Florida the jury is free to award as much or as little as it deems appropriate for non-economic damages.

Punitive Damages

The purpose of personal injury law is not to punish the wrongdoer, but rather to make the injured person whole.  Under the law, however, there are times when the wrongdoer’s conduct is so outrageous that the law allows for money awards that are meant not to make the injured party whole, but rather to punish the wrongdoer and also send a message to those who are in the same position as the wrongdoer that this kind of conduct will not be tolerated.

There are limited ways to recover punitive damages in Florida and a specific set of rules that must be followed in order to be able to recover these damages.  If you’d like to know more about punitive damages see our punitive damages article.

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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