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Recently, a federal jury in Florida awarded $27 million to four claimants alleging medical device failure related to vaginal mesh implants produced by Boston Scientific. A few days later, federal jurors in West Virginia awarded $18.5 million – including $4 million in punitive damages – to four women for the same issues involving the same product. onyourown

These products, which were not thoroughly tested before being rushed to the market through a U.S. Food & Drug Administration loophole, have caused tens of thousands of women to suffer excruciating pain and irrevocable harm. The products were produced by some 30 companies, all of which are now facing litigation.

These woman, usually implanted with the device in order to treat pelvic prolapse or incontinence issues, end up suffering painful and debilitating side effects, often requiring additional surgery.

But these consolidated cases aren’t the only ones making it to trial. Our experienced Tampa medical malpractice attorneys understand many cases are successfully being brought by individual plaintiffs.

One of those most recent was Scott v. C.R. Bard, Inc., before the California Court of Appeal for the Fifth Appellate District. Here, both plaintiff and defendant appealed a verdict for $5.5 million in favor of plaintiff. Defendant asserted theories of negligence asserted at trial were erroneous as a matter of law. Plaintiffs argued apportionment of fault (40 percent to a surgeon who was not a named party to the case, therefore reducing the award by 40 percent) was based on an incomplete jury instruction.

Ultimately, the appellate panel affirmed the judgment. The outcome illustrates how important it is for plaintiff attorneys to ensure they have done all proper research and name all relevant defendants in the action, or else lose the opportunity to seek compensation from them forever – regardless of what the court finds. (A non-party defendant found liable can’t be compelled to pay unless a separate action is brought; However, by the time a case like this reaches its conclusion, more than likely, the statute of limitations on the underlying action has run out.)

According to court records, plaintiff and her husband filed a lawsuit against the mesh manufacturer – the wife for injury, pain and suffering and husband for loss of consortium. The woman suffered form pelvic organ prolapse, or a weakening of vaginal walls, often resulting in incontinence, pelvic pressure and pain. It can significantly impact one’s quality of life, and in severe cases, cause the woman to become disabled.

The woman underwent mesh implantation surgery to correct the problem. However, the mesh was created with a material not known to be safe for long-term implantation in the human body. As it began to erode, plaintiff suffered painful symptoms and infections ultimately requiring eight revision surgeries. She was often in excruciating pain and suffered nerve damage. She lost the ability to control her bowels or have sexual intercourse.

When she and her husband later filed a lawsuit, they did not name the surgeon in the case.

However, the surgeon’s role was relevant because she reportedly attended a one-day seminar on implantation of the device. Although she watched a video on implantation, she did not read the instructions given on each packet, and was not informed on how to recognize problems with the device or how to correctly remove it.

After numerous delays at trial, the court issued a directed verdict, finding manufacturer negligent and the negligence being a substantial factor in the couple’s harm. However, it also assigned surgeon 40 percent fault, which reduced plaintiff’s damages to $3.6 million.

Defendant argued it was denied a fair trial because the trial court erred on several decisions as a matter of law. The appellate court rejected this argument, as substantial evidence supported the verdict as it related to negligent design, negligent training and negligent misrepresentation. However, the court also rejected the assertion by plaintiff the trial court erred in its instruction on the doctor’s degree of fault because the issue of instruction was not raised until after trial, thus failing to properly preserve it for appeal.

Still, plaintiffs will receive $3.6 million in damages.

If you have been a victim of a defective medical device, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Scott v. C.R. Bard, Inc.,Nov. 19, 2014, California Court of Appeal, Fifth Appellate District

More Blog Entries:

Workers’ Comp Attorney Fee Caps at Issue Before Florida’s Supreme Court, Nov. 20, 2014, Tampa Injury Lawyer Blog

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The Florida Supreme Court will hear oral arguments this month in a case that asks whether fee caps for those who represent employees in workers’ compensation laws are legal. balance2

The case before the court is Castellanos v. Next Door Company, and it goes to the very heart of fairness in workers’ compensation proceedings.

While it may seem irrelevant to you what your lawyer is paid, here’s why it matters: In some cases, attorneys are making far less than minimum wage to represent workers, while employer attorneys are not limited by what they can be paid by their clients.

Our Fort Myers work injury lawyer know this has the potential to create a serious imbalance in the courtroom.

In the instant case, the workers’ compensation attorney representing an employee who suffered a work-related injury obtained an award for his client of $822, which the employer initially denied. Because fee caps limit the percentage the lawyer is allowed to collect, he was only awarded $165 for his 107 hours of service. That breaks down to $1.53 an hour.

Just to give you a comparison, an entry-level minimum wage high school student at the local fast-food chain makes $7.93 an hour by law in Florida.

As a result, the Judge of Compensation Claims, who noted the workers’ compensation attorney was skilled and worked hard on the case, certified it to the First District Court of Appeal. The appellate court affirmed the ruling of the JCC, but certified the question of attorney fee awards to the Florida Supreme Court. Specifically, the question is whether the fees are adequate and constitutional with regard to guaranteeing access to the courts.

Indeed, if an attorney knows he or she will not be paid a fair rate for his or her work, what incentive is there to take such cases? That directly limits worker access to the courts in cases where employers deny their claims.

The state Legislature passed sweeping reforms to the workers’ compensation system in 2003 – including the attorney award caps. It should come as no surprise that since then, the rates of workers’ compensation claims has plummeted by more than 50 percent. Even worse, the Office of Insurance Regulation last month agreed to reduce those fees even further.

The state high court has weighed this issue before. Back in 2008 with the case of Murray v. Mariner Health. But rather than deciding the issue of constitutionality, the court focused on the ambiguity of the statute that called for strict fee rate structures, while also demanding the amounts be “reasonable.” The pro-business legislature at the time simply struck the word “reasonable” from the law in 2009.

As it now stands, workers’ compensation lawyers are entitled to 20 percent of the first $5,000 secured, 15 percent of the next $5,000 and then 10 percent of the remaining amount in the 10 years from the date the claim was filed and 5 percent in the years after that.

It seems highly plausible the courts will be swayed in favor of workers, if its March 2014 ruling on non-economic damage fee caps in wrongful death cases is any indication. There, justices ruled such caps were unconstitutional.

Justices were scheduled to hear the Castellanos case Nov. 5, 2014.

If you have been a victim of a work accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Castellanos v. Next Door Company, Amicus Brief, Jan. 21, 2014, Florida Supreme Court

More Blog Entries:

Curtis v. Lemna – Co-Worker Causes Crash, Workers’ Compensation is Remedy, Nov. 4, 2014, Fort Myers Work Injury Lawyer Blog

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The young Tampa mother-to-be wanted a little girl more than anything, and family members say she was doing everything right. She was eating healthy, abstaining from alcohol and keeping all her regular prenatal visits. handsonbelly

In fact, she was on her way to an obstetrician appointment when it happened. As she crossed a St. Petersburg street, a tow truck came barreling into the intersection. Witnesses told authorities the woman had just moments to react, and with those few seconds, she turned to shield her belly from direct impact.

Miraculously, the fetus survived. Still, her mother was in critical condition, having suffered a traumatic brain injury that left her in a coma.

Our Tampa injury attorneys understand that for weeks, the mother was unresponsive. But although her body was broken, it continued to nurture the child inside her, until just recently, when doctors made the decision to deliver the child about one month prior to her due date.

The girl weighed 6 pounds and was doing well, despite the early delivery.

However, her mother is still in critical condition. Doctors believe now that her body is no longer burdened with pregnancy, it may heal faster.

In the meantime, her husband says he is struggling financially. They weren’t prepared for any of this. They didn’t have much savings stockpiled. They hadn’t even bought the essential baby items yet. Now, medical bills are quickly mounting, and his health insurance is only going so far.

Family members have established a account to help cover medical bills, and so far, $9,000 has been raised.

This is a situation where civil litigation would likely be a worthy pursuit, particularly as it does not appear the tow truck driver is going to face any criminal charges. Authorities say he was at-fault for failure to yield to a pedestrian in a crosswalk. However, he wasn’t drinking at the time, nor was he driving recklessly, investigators report. He also had a valid driver’s license. That means the most he could probably face is a civil infraction. That could affect his commercial driving license, but if it’s his first offense, it probably won’t.

However, he and and possibly his employers and relevant insurance companies could be required to pay compensation to the family for the enormous damages incurred. We’re talking about huge medical bills covering everything from surgery to rehabilitation, lost wages and pain and suffering. This family has effectively been robbed of what should have been one of the happiest times in their life.

Although the woman has since awoken from the coma, has her eyes open and is responding to stimuli, doctors believe it’s going to be a long and arduous recovery.

If the woman and/or her husband carried any type of underinsured motorist coverage, that too might be worthy of pursuit. UM coverage is applied when the at-fault driver’s insurance policy limit does not cover all damages, or if the other driver doesn’t have any insurance. It can be used even when the injured insured was not driving, so long as the injury was the result of a vehicle accident.

An experienced injury lawyer can help individuals in these situations explore all potential avenues of recovery.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Woman hit by tow truck gives birth to ‘miracle baby,’ Oct. 30, 2014, By Katie Mettler and Tony Marrero, Tampa Bay Times

More Blog Entries:

Pope v. Babick – Third Party Driver Sued in Crash Case, Nov. 2, 2014, Tampa Car Accident Lawyer Blog

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At both the national and state levels, databases of sexually-motivated criminals (particularly those who target children) are amassed and publicly distributed with the hope of reducing the chances of a predator striking again.

But what duty do individuals have to warn of the danger of a sexual attack posed by others in their household?

According to a new ruling by the South Carolina Court of Appeals: Not much. girl1

In general, a person doesn’t owe a duty to prevent or warn of danger posed by a third party except in limited circumstances. One of those involves the establishment of a special relationship between defendant and victim and another involves an ability to control the third party.

However, as our Fort Myers child injury lawyers understand, the appellate court in South Carolina did not believe either was the case for a neighbor whose husband was previously convicted of molesting their daughter, and two girls who years later lived next door and frequently visited with the couple’s granddaughter.

In Roe v. Bibby, the neighbor girls’ parents, after learning the couple’s granddaughter had been abused, learned their own daughters had been sexually assaulted too. They filed civil actions against both the husband and wife. Against husband, they alleged assault, battery and intentional infliction of emotional distress. Against wife,  they alleged negligence and wrongful infliction of emotional distress on a bystander.

A default judgment was entered against husband. However, the claim against wife was vigorously defended.

Plaintiffs alleged wife had a duty of care to their girls to warn the parents of the man’s violent past and sexual propensities toward children. Citing the 2007 case of Doe v. Marion, plaintiff asserted defendants have a common law duty to warn potential victims under the special relationship exception when defendant has ability to monitor, supervise or control an individual’s conduct and when individual has made a specific threat of harm directed at a specific individual.

However, trial court did not find defendant had the ability to monitor, supervise or control her husband, particularly given defendant was mostly at work when alleged abuse occurred. Additionally, the court found she had no knowledge of a specific threat to minor children. A divided appellate court affirmed on this issue.

So too did judges affirm the trial court in finding no liability through premises liability law. Plaintiffs were required to establish duty of care owed by defendant to plaintiff, breach of that duty by negligent act or omission and damage proximately resulting from that breach. Plaintiffs contend they were licensees on defendant property, and defendant had duty to warn of any concealed dangerous condition. Specifically, defendant knew of her husband’s past actions, knew he was watching child pornography again and knew there was a likelihood of danger to the children’s safety.

However, both the trial and (divided) appellate court disagreed. The court could find no prior cases recognizing a duty to warn a licensee about prior criminal acts committed by a third party living on the property. Further, the court noted as an untrained lay person, defendant had no understanding of the high recidivism rate of child sexual offenders, and believed he was “cured” after the counseling he received nearly two decades earlier for molesting his own daughter.

Disappointing as this ruling was, it’s noteworthy that victims of child sexual abuse do in some instances have other avenues of recompense. There is the possibility to seek damages from abuser directly (as as the case here).

Other cases have been brought against social services agencies that failed to protect vulnerable children living in abusive homes or subjected to abusive individuals.

Employers may be potential defendants as well if the abuse occurred in some capacity within defendant’s work, particularly if defendant was placed in a position of trust over victim (i.e., teacher, coach, priest, juvenile officer, health care worker, etc.).

An experienced plaintiff attorney has the ability to review a number of relevant legal theories that could potentially further your claim.

If you have been a victim of abuse, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Roe v. Bibby, Oct. 1, 2014, South Carolina Court of Appeals

More Blog Entries:

Vicarious Liability of Florida Hospitals for Medical Negligence, Oct. 20, 2014, Fort Myers Injury Lawyer Blog

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A Florida worker who was assaulted on the job is entitled to compensation for those injuries – even if his employer neglected to notify the company’s insurance provider immediately after the incident. hospitalroom1

In Fortune v. Gulf Coast Tree Care, the First District Court of Appeals reversed the Judge of Compensation Claims’ denial of reimbursement for medical expenses, mileage and co-payments occurred in treatment following the May 2011 incident. Although the JCC had deemed the injury compensable, the worker sought follow-up care from Veteran’s Affairs, rather than requesting care from either his employer or carrier.

While it’s true an employer/insurance carrier would have some say over where a worker obtains medical treatment, in this case, neither the employer nor insurer directed him to receive care from any certain provider. The worker did his due diligence in notifying his supervisor right after the attack. The fact that his employer failed to notify the insurer was not a mistake for which the worker should be made to pay.

Our Cape Coral workers’ compensation lawyers know the statute the employer/insurer argued to invalidate coverage was F.S. 440.13. The law says it is the duty of the employer to furnish medically necessary remedial treatment, care, attendance, medicines, supplies, prostheses and anything else a physician deems medically necessary. The law says the carrier has the right (except in emergency situations) to review the proposed course of treatment and determine whether it’s recognized as reasonably prudent.

However, the law also says that if the employer does not provide initial treatment or care as required and the care is compensable and medically necessary, the worker can obtain this treatment at the expense of the employer. There has to be a specific request for initial treatment or care and the employer/insurer has to give a reasonable amount of time in which to provide the treatment or care.

While there are many legal demands made on workers who have suffered injuries if they hope to retain coverage, the bottom line is that a worker shouldn’t be punished just because an employer failed to notify the insurance company.

In this case, the worker was a lawn maintenance professional who was waiting at the entrance of a gated community in order to provide an estimate when he was accosted by a resident of the community (coincidentally, a dentist). It’s not clear from records what the altercation was over, but we do know the dentist reached in and punched the worker in the shoulder.

Worker immediately notified his employer that he was on his way to the hospital after what had happened. Doctors at the emergency room, where his shoulder was placed back into alignment and he was advised to seek follow-up care.

His supervisor even came to the scene and followed claimant to the hospital. However, employer did not complete a notice of injury to the carrier.

Approximately 11 days later, worker sought follow-up care at the V.A. He underwent surgery two months later. During this time, he continued to work for the company.

Sixteen months later, the carrier first received notice of injury.

While it’s true the employee did not seek follow-up medical care guidance from either the employer or the insurer, the 1st DCA found a plain interpretation of the law indicated it was not the worker’s fault the employer did not notify the carrier. The employer knew of the injury, of the surgery, of the worker’s need for limited duties. There is an exception to the rule when employers fail to provide initial treatment.

Plus, if the employer had notified the carrier, the worker would have been provided with statutorily-required informational brochures containing important information about his rights and where he should seek treatment. That did not happen, and thus, worker was entitled to seek treatment elsewhere – and be reimbursed for it.

If you have been injured at work in Florida, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Fortune v. Gulf Coast Tree Care, Oct. 13, 2014, Florida’s First District Court of Appeal

More Blog Entries:

Gaytan v. Wal-Mart – Work-Related Fatality Claim to Proceed, Oct. 16, 2014, Cape Coral Workers’ Compensation Lawyer Blog

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In recent weeks, two cases have come to light in which students with special needs choked while at school because, according to lawsuits and news reports, their special dietary needs weren’t explicitly followed. fellowship

This is not only tragic, it’s unacceptable. Where schools take on the duty of caring for children with special needs, there must be firm practices and protocol in place to ensure the child’s mental, emotional, physical and educational needs are met while under the school’s supervision.

While choking is a possibility for any child, those with special needs are at especially high risk, as they may already have trouble eating, swallowing or breathing.

Our Fort Myers child injury lawyers know that often, parents and medical teams develop very specific, specialized eating plans for each child in order to minimize the risk. When those plans aren’t followed and the child suffers harm as a result, that is the basis for a negligence action.

One recent case to arise was that of Lyons v. Richmond Community School, a case heard recently by the Indiana Supreme Court. Here, the state high court court reversed a trial court summary judgment in defendant school’s favor. This case stemmed form a child who choked to death during lunch time in a high school cafeteria.

According to court records, the 17-year-old female decedent was severely disabled. She had trouble eating and sometimes failed to chew her food or took two many bites before swallowing. Safety plans were developed to help reduce the risk. Those included having staff monitoring every meal and snack and never leaving her alone with a meal or snack. The dining plan specifically indicated the girl could not chew her food well, sometimes not at all. The note indicated she chokes with too much food in her mouth, yet tends to eat fast and needs verbal prompting to slow down. Additionally, her food needed to be cut for her.

Despite this, the staffer assigned to supervise the girl during lunch that particular day was not made aware of the plan. She did not cut the girl’s sandwiches into pieces. The girl began to choke. The assistant sought help. Efforts to save the girl were ultimately unsuccessful. She died the next day.

There were numerous missteps in the school’s handling of the case beyond that, presumably in a protect to shield itself from litigation. For example, surveillance video of the incident was downloaded, but later lost. Staffers told medical personnel she had only been without oxygen “a very short time” when in fact it was five to 10 minutes.

Finding sufficient questions of fact, the appellate court remanded the case for trial.

In another recent incident chronicled in The New York Times, a 21-year-old student with autism choked to death on a muffin at a Brooklyn school during lunchtime. The student was non-verbal and wore diapers, according to her 70-year-old adoptive mother, who had taken the girl in when she was just 3. The girl was supposed to have full-time supervision on the bus and at school. Staffers were required to cut up her food because she would otherwise put too much in her mouth.

There is no indication staffers gave her the Heimlich maneuver before contacting 911. She was declared dead at the hospital.

According to the Times, that was the second time in a single year that school system had to investigate the death of an autistic student. The earlier incident involved a 14-year-old who walked out the door of his school unnoticed. It was months before police found his remains.

Our personal injury attorneys are committed to fighting to defend your child’s rights and dignity, and to hold accountable schools that fail to meet the appropriate standards of care.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Lyons v. Richmond Community School, Oct. 28, 2014, Indiana Supreme Court

More Blog Entries:

Report: Doctors Continue to Practice Despite Numerous Malpractice Payouts, Oct. 28, 2014, Tampa Personal Injury Attorney Blog

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In some cases, car accidents are just that: Accidents. That is, those involved didn’t intend for them to occur.

However, that doesn’t mean by-and-large they aren’t preventable. When drivers adhere to all traffic laws, safety signals and responsible behind-the-wheel behaviors, the risk of a crash  decreases. bigtruck

There are, however, those rare instances when drivers might be doing everything right, but circumstances beyond their control result in a collision. In cases where those circumstances amount to a “sudden emergency,” the civil courts have found it appropriate to limit liability.

Our Tampa injury lawyers know it’s important to understand the circumstances under which the “sudden emergency doctrine” is applicable in car accidents. The reality is, this defense is only valid in a small number of cases.

Of course, that certainly doesn’t stop defendants from trying to use it. Take for example the recent case of Wright v. Carroll, weighed by the Kentucky Supreme Court.

This was a truck accident case with which the lower courts struggled. It went to trial twice, though on the final appeal the state supreme court held the trial court should have issued a directed verdict in plaintiff’s favor, as the “sudden emergency doctrine” defense should never have been applied and the weight of the evidence supported her claim.

According to court records, defendant was a trucker, operating a tractor-trailer, who was approaching a blind curve closely followed by an intersection. The trucker knew this path well, as he’d traveled it a number of times in the past. Still, he testified that he did not expect vehicles to be stopped at the intersection after he rounded the curve.

He was surprised to find there were several vehicles stopped at a red light in his lane. In order to avoid a collision, he swerved and slammed on the brakes. He avoided striking the cars directly in front of him, but the trailer swung around and struck plaintiff’s vehicle, causing her to suffer severe leg injuries.

When she sued defendant and his employer (for vicarious liability), he asserted the sudden emergency doctrine defense. This defense argues that when circumstances outside of defense control occur rapidly, the individuals involved shouldn’t be held to the same level of care as those who are acting without the time pressure of an emergency situation. So in other words, a defendant faced with a split-second decision on how to avoid harm in a situation he didn’t create shouldn’t be held to the same standards of reasonable prudence as a driver who has time to contemplate his or her actions.

But here’s the problem with that defense in this case: The trucker couldn’t reasonably argue that vehicles lawfully stopped at an intersection constituted as a “sudden emergency” that he would have had no opportunity to avoid. Yes, it was a blind curve, but having traveled that route before repeatedly, he knew there was an intersection immediately following. Thus, the sudden emergency doctrine does not apply here, according to the Kentucky Supreme Court.

For the plaintiff, that means liability is not limited.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Wright v. Carroll, Oct. 23, 2014, Kentucky Supreme Court

More Blog Entries:

Mercury Casualty v. Chu – Auto Insurance Contrary to Public Policy, Oct. 16, 2014, Tampa Car Accident Lawyer Blog

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In Florida trip-and-fall cases, proving liability of the premises owner usually means showing defendant was aware of the danger and did nothing to address it. But one of the ways defendants can circumvent responsibility for this is by countering the danger was open and obvious, and plaintiff did not take appropriate action to avoid it.

Our Naples premises liability lawyers know this is not a catch-all defense, but it can be successful if defendant can show the condition was so blatantly obvious that a person must reasonably be expected to discover it and protect himself against it. brokensidewalk

In Bruns v. City of Centralia, this was the defendant’s strategy, and it was successful after numerous appeals, the final one before the Illinois Supreme Court.

According to court records, plaintiff was just days from her 80th birthday when she drove to an eye clinic for an appointment. Rather than use the center’s parking lot, she parked the vehicle on a public street in front of the building, as she had done on numerous previous visits. While walking to the entrance, she stubbed her toe on a large crack in the sidewalk, causing her to fall and in turn injure her knee, leg and arm.

When she fail, plaintiff was looking toward the door and steps of the clinic. She testified later she “definitely noticed” the crack in the sidewalk on previous visits, because “You couldn’t help but not notice it.”

Sidewalks are public property, maintained by the city. The defect had developed over a number of years, and there was evidence city officials were aware of the problem as well. The crack was caused by roots from a tree nearby that caused the sidewalk surface to become uneven.

Prior to the woman’s fall, an employee with the clinic notified the city of the problem, and even offered to remove the tree at the clinic’s own expense. However, the city refused to authorize this removal because the tree was more than 100 years-old, and had historical significance. Another clinic worker contacted the city again about the problem after learning someone else had fallen prior to the plaintiff’s fall. Again, the city declined to act.

Plaintiff asserted the city negligently failed to maintain, inspect or repair the sidewalk and allowed it to remain in a dangerous condition to pedestrians.

The city filed a motion for summary judgment, not disputing the defect, but rather arguing it was open and obvious and the city was not required to foresee and protect pedestrians against injuries from a condition that was open and obvious. Plaintiff countered a label of “open and obvious” didn’t shield the city from liability when it should have assumed pedestrians may become distracted and fail to protect themselves. She argued that looking up at the clinic doors was a reasonable thing for a pedestrian to do.

The trial court granted the city’s motion for summary judgment, noting that the mere existence of a building entrance didn’t create a universal distraction exception to the open and obvious doctrine, and to accept it as such would be beyond the scope of the court’s authority.

The decision was reversed on appeal, with the appellate court finding it was reasonable for the city to foresee that an elderly eye clinic patron would have her attention focused on the pathway to the door, rather than the steps immediately in front of her. Therefore, the court ruled, the city had a duty to remedy the defect.

On appeal to the state supreme court, the trial court’s issuance of summary judgment to defendant was reinstated. While noting a danger that is open and obvious is not an automatic bar to finding defendant legally responsible for injuries, here, the distraction exception to the rule did not apply.

The court ruled that “the mere fact of looking elsewhere does not constitute a distraction.” Although there is no exact definition for what constitutes a “distraction,” case law was guiding here. In one case, a plaintiff leaving a store carrying a large mirror was injured while tripping on an uneven sidewalk. The court concluded defendant should have known patrons, even in using reasonable care, might be distracted while carrying large items out of the store. In another case, a plaintiff was injured at a construction site when he fell on deep tire ruts as he exited a portable bathroom. He was looking up at the time because workers had previously thrown large construction material off a nearby balcony, and he didn’t see the ruts as he exited. So while the danger was open and obvious, his distraction was reasonable.

The court noted in each exception, there was some circumstance requiring plaintiff to divert his or her attention from an open and obvious danger, thereby creating an exception. Simply looking somewhere else, however, did not constitute a “distraction” under the law.

If you have been injured in a Naples trip-and-fall accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Bruns v. City of Centralia, Sept. 18, 2014, Illinois Supreme Court

More Blog Entries:

Henkle v. Norman – Adequate Warning in Premises Liability, Sept. 6, 2014, Naples Premises Liability Attorney Blog

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Golfing is a year-round recreation in Florida, and many businesses take advantage of it to gather staff and customers for retreats, sales outings and other events. However, when golf cart accidents occur in the course of such an event, can an employee claim workers’ compensation? Should he file litigation instead? Can a worker collect both?

Our Fort Myers workers’ compensation lawyers know the answer depends on a multitude of factors, specifically focused on whether the event leading to the injury was indeed work-related. golfcart

In the recent case of Curtis v. Lemna, the Arkansas Supreme Court held that an employee who suffered injuries when a co-worker drove a golf cart over a retaining wall during a work sales function that the event was covered under the exclusive remedy of workers’ compensation. Therefore, his third-party lawsuit against the co-worker was dismissed.

That means he is free to continue collection of workers’ compensation benefits for his injuries, but he won’t be able to pursue personal injury litigation directly against his allegedly negligent co-worker.

According to court records, both plaintiff and defendant were employed at a large corporation headquartered in Arizona when they attended a sales meeting held at an Arkansas golf course, where a couple of their largest clients were based. The two attended the sales meeting with the client before heading out to the links, with defendant driving the cart. Defendant accidentally drove the vehicle over a retaining wall, and both were ejected from the cart.

Plaintiff suffered a shoulder injury in the crash. Plaintiff then filed for workers’ compensation benefits in Arizona, which he received. Later, plaintiff filed a personal injury action against defendant, asserting his negligence proximately caused injury.

Defendant responded with a motion to dismiss, asserting the two were co-employees at the time of the accident, and the Arkansas state workers’ compensation commission had exclusive jurisdiction to determine whether he was entitled to immunity from the tort action. The trial court agreed, dismissing the case without prejudice (meaning plaintiff could re-file if the commission determined a tort action was allowable).

Plaintiff sought determination from the Arkansas workers’ compensation commission, not for benefits (as he was already receiving those) but as to whether his co-worker was entitled to tort immunity. Such immunity would be granted if the pair were acting within the scope of employment at the time of the accident.

The commission determined the two were acting within the scope of employment at the time of the golf cart accident, and therefore, the defendant co-worker was entitled to immunity. That decision was upheld by the full commission and again affirmed by the court of appeals.

Plaintiff appealed again to the state supreme court. He alleged commission lacked jurisdiction over the issue, because he wasn’t seeking benefits, and even if it had jurisdiction, the evidence to support the conclusion was lacking. He further asserted his co-worker was a third party under state worker’s compensation law, and therefore was not entitled to immunity.

The state supreme court disagreed. The court noted first that plaintiff sought relief from the commission, and when he did not prevail, argued the jurisdiction wasn’t proper. However, the court ruled the commission did have subject matter jurisdiction in this case.

Secondly, the court found the pair were acting within the scope of employment at the time of the crash. The test for this determination is whether the injury occurred within time and space boundaries of employment, when the worker was carrying out the company’s purpose or advancing the company’s interests, directly or indirectly. Here, while the sales meeting was required, the golf outing was not.

However, almost all who came to the sales meeting attended the golf outing, which was intended as a team-building exercise. The company paid for all expenses related to the outing, which was inherently beneficial to the company. Immunity to co-employees is extended under Arkansas law when the actions arise from the alleged failure of that co-worker to provide a safe workplace.

Here, the co-worker drove the golf cart for the purpose of the men to participate in the team-building exercise, and therefore, the court held, the golf cart was considered a “work vehicle” and the duty held by the co-worker was to provide safe transportation on behalf of the employer. Therefore, he was immune from the tort action.

This case shows there is sometimes a fine line with regard to liability in work-related claims. It’s important to consult with an experienced work injury attorney before pressing forward with a claim.

If you have been injured at work in Fort Myers, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Curtis v. Lemna, Sept. 18, 2014, Arkansas Supreme Court

More Blog Entries:

Arvizu v. Heights Roofing Inc. – Culpable Negligence in Workplace Injuries, Sept. 16, 2014, Fort Myers Workers’ Compensation Lawyer Blog

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Our Tampa car accident lawyers know that in any case, it’s important to look beyond the immediate actors involved in determining the full scope of liability.

In cases where multiple vehicles may have been involved, it is especially important to examine all evidence for potential liability.  In the recent case of Pope v. Babick, a couple seriously injured in a California crash took to task not the driver who struck them, but a third driver who reportedly made a negligent lane change that set off a chain reaction, causing the other driver to strike them. Plaintiffs also sued vehicle owner for vicarious liability.brokencar

According to court records, the crash occurred in the summer of 2008 on the highway, when a couple in their 50s in one vehicle was struck by a 19-year-old driver, carrying three passengers. The evidence would later indicate that driver had been drinking the night before on vacation, and hadn’t slept much that night. A third car was driven by a 47-year-old transporting the vehicle to his brother’s home.

On the westbound lanes of the interstate, according to a crash report, the driver of the third car began to change lanes into the lane of the second driver, causing her to swerve to her left. However, to avoid another car, she swerved back to the right. This caused her to lose control of the vehicle, which spun and at some point impacted plaintiff’s vehicle, causing plaintiff vehicle to flip.

The driver of the third vehicle was not involved in the actual impact, and he did not stop at the scene.

Others would later testify the younger driver was speeding, and she too conceded to this fact. However, other drivers who witnessed the incident were concerned enough about the actions of the third driver to write down the license plate and report the information to police.

The accident report indicated the 19-year-old driver caused the crash by initiating an unsafe lane change. Plaintiffs later settled with her and her insurance company.

They they initiated a lawsuit against the third driver. Prior to trial, a judge granted a motion to exclude certain testimony by officers indicating causation. However, that order was violated when defense lawyer when the officer was on the stand. The officer was pressed for information about what he thought caused the crash, and following plaintiff objection, a curative instruction was given to the jury not to consider that information.

Further, the plaintiff’s expert witness, an accident reconstructionist, concluded the young driver had caused the crash by overreacting, due to her inexperience.

The jury found the third driver not negligent.

Plaintiffs appealed to the California Court of Appeal for the Fourth Appellate District, Division Three, arguing the conclusion was not supported by the evidence, and that defendant’s attorney’s actions warranted a mistrial.

Appellate court affirmed. The defense attorney had been sanctioned, and the jury was given a curative instruction. However, the court declined to find the action so prejudicial as to warrant a mistrial or new trial. Specifically, the testimony given by the plaintiff’s own witness supported the jury’s conclusion.

If you have been a victim of a traffic accident in Tampa, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Pope v. Babick, Sept. 18, 2014, California Court of Appeal for the Fourth Appellate District, Division Three

More Blog Entries:

Boozer v. Stalley – Florida Court Declines Attorney-Client Privilege Exception in Bad Faith Insurance Claim, Sept. 20, 2014, Tampa Car Accident Attorney Blog

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