Unsafe places: Customer’s knowledge of “open and obvious” condition spells victory for store in court

      A Winn-Dixie customer who tripped and fell over a pallet placed in a hazardous location lost his case when the supermarket won a summary judgment because the injured man had seen the pallet before and had even walked around it.
      The court ruled that the condition was open and obvious, and that because the plaintiff had previously noticed it, there was no duty on the part of the supermarket to warn of a condition when the supermarket’s knowledge of the condition was not superior to the plaintiff’s.  For these reasons, the supermarket could reasonably expect the customer to protect himself from the purported danger.
     This case is emblematic of an increasing trend in Florida courts to strictly enforce the requirements for proving negligence in slip-and-fall cases.  Undoubtedly the second most common type of injury case, slip-and-falls in retail settings can sometimes be very difficult to prove legally, and each requires careful investigation and analysis from the beginning.

In court: When the PI lawyer chooses the client’s doctor

     If your lawyer sends you to a hand-picked doctor, does the defense have the right to know?  No, says the Florida Supreme Court which
recently held that an attorney’s referral of an injured client to a doctor or clinic is privileged information, and may not be discovered by the defense.
     This controversial issue has been around for years, and different courts have viewed it differently.  On one hand, the referral can speak to a cozy relationship between the attorney and the doctor, and thus compromise the doctor’s credibility.  On the other hand, the confidential relationship between attorney and client-intended to create a safe place for the client to speak freely-should be held sacrosanct.  The high court has now embraced the latter principle in favor of the former.

Med mal update: Damage caps struck down

    In the mid-1980’s, as part of an effort to crack down onlawsuits against doctors and hospitals, Florida enacted “tort reform”–intended to alleviate a “crisis” in high insurance premiums that was supposedly driving doctors away from practice.
     Among the “reforms” were caps on the amount of money damages that could be awarded to a victim of medical malpractice.  No matter how severe the damages, no claimant could recover more than $500-thousand for pain and suffering.  And no doctor could be held liable for more than $500-thousand for pain and suffering–no matter how severe the injuries.
     So when the Florida Supreme Court ruled 4-3 this summer that these damage caps violate the Equal Protection Clause of the Florida Constitution, the decision has been hailed as a victory for fairness and justice.
     “It imposes an unfair and illogical burden on injured parties,” held the Court, resulting in saving a modest sum for many by imposing devastating costs on a few, and arbitrarily punishing the most seriously injured.  Those who are slightly injured stand to recover the full measure of their damages, while the severely injured may never recover the full measure of their damages.
     What’s more, the Court held, the idea that such a “reform” results in a reduction in insurance premium has not been fully supported factually.

On the road: The black box in your car

      You may not know it, but your late model car contains a data retrieval system similar to the black box on jumbo jets that can reveal pre-crash circumstances.  The black box in the car is contained within the airbag control module, and can reveal pre-crash speed, braking actions, seatbelt use and more.
     So in cases where the injuries are serious and where the facts are in dispute, we make it a practice to attempt when feasible to secure the data from our client’s back box, and at the same time, place the opposing driver and his insurance company on notice to secure data from the opposing driver’s vehicle.  These steps need to be taken promptly to preserve the data.

3 Keys to getting your medical records

 Most responsible physicians cooperate with a patient’s request for their medical records, but sometimes, patients can have difficulty getting their doctor’s office to give them their records.  When that happens, bear in mind:

     The doctor’s office must also protect your privacy, and if you are next of kin, provide you with records of your deceased loved one.  Be sure to make your requests in writing, get a receipt for the copying costs and if a doctor refuses, you can report the problem to the Florida Board of Medicine.

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What if I’m injured in an Uber?

     Uber states that while the vehicle is on a trip (starting when the driver accepts a trip), Uber provides $1-million in coverage for liability to its riders, and $1-million of uninsured motorists coverage if another motorist causes the accident but doesn’t have adequate insurance.

     For passengers, this level of financial responsibility compares favorably with the $100.000.00 of liability insurance that Florida statutes require taxi cabs to maintain.

     The level of insurance which Uber provides is different when the vehicle is not on a trip, but just on the Uber platform. In that instance, Uber states it provides liability of coverage of $50,000.00 per person and $100,000.00 per occurrence.

    If the vehicle is neither on a trip nor on the Uber platform, the individual owner/operator’s insurance is the coverage that applies.

     Like Uber, the “cab company”–such as “Yellow Cab”–does not own or operate the taxis. It is well established that the “cab company” acts only a dispatcher of independent owner/operators. As such, the “cab company” is rarely if ever liable for the carelessness of the owner/driver of the taxi.

     Unfortunately, some taxi cabs in Miami-Dade are controlled by owners who pass the vehicles around to unqualified drivers, effectively evading financial responsibility. In one scenario, the cab is owned by a shell corporation, and insured as required by state statute. But if the vehicle is being operated by a driver who is not named on the policy, coverage will be denied. And the shell corporation that owns the taxi has no assets. Under these circumstances, chances of finding a financially responsible party capable of paying for the damages caused to an injured passenger can be slim to none.

     As in any other type of case, accidents involving taxi cabs and ride sharing services require careful investigation to identify not only the culpable parties, but also where the money can be found to pay for the injuries and damages.

     From our firms offices in North Miami, we have handled hundreds of motor vehicle accidents of all kinds throughout South Florida, including car crashes, bus accidents, bicycle accidents, pedestrian accidents and motorcycle accidents. Every client and each case is different and unique. If you are injured any kind of a car crash, we are available to consult with you at our offices in North Miami or in your home or hospital. For more, check out our website, and check out “How much is my case worth?” on YouTube.


Products liability: Has your car been recalled?

        With the number of recalls soaring–one in five cars in the U.S. this year–U.S. transportation officials have put up a search tool that lets you check to see whether any recalls have been issued on your car.  Go to SaferCar.gov ,chose the tab “Vehicle Owners,” and put in  your car’s VIN (vehicle identification) number.

Elder law: When you die are your “digital assets” accessible?

Your bank accounts are on line.  So are your photos, your credit card charge accounts, your e-mail and social media.

But when you die, or become incapacitated, will the people responsible for looking after your estate be able to locate and access all these “digital assets”?  Lawyers are concerned not only about  identifying all one’s “digital assets”, but also making sure that once they’ve identified them, and have the passwords, that the people responsible for your estate can access them lawfully.  In one case, a family was tied up in court with Yahoo for years to obtain access to a deceased’s e-mail.

A model law adopted in Delaware will come before the Florida Legislature in May, when Florida is expected to enact  the Uniform Fiduciary Access to Digital Assets Act (UFADAA).  In the meantime, common sense dictates that one list all one’s electronic accounts, along with their passwords, user names and so forth, and put away somewhere people will know to look.

3 things every woman (and man) needs to know about cyberstalking

It’s a crime and a court can intervene to stop someone from harassing you through “cyberstalking.”  What’s cyberstalking?

  • The use of e-mail or other electronic communication (like Facebook) to communicate images or language,
  • Directed to you,
  • Causing you substantial emotional distress, and
  • Serving no legitimate purpose

Some examples of conduct that may entitle you to an injunction include:

  • Prior threats, harassment or physical abuse;
  • Threats to harm you, your relatives or associates;
  • Killing or injuring a family pet;
  • Threats to use a weapon such as a gun or knife;
  • Destruction of your personal property such as your cell phone or clothing

When these occur, a judge can order the offender to stop, and set terms and conditions that the judge thinks may be necessary for your protection, including giving orders and directions to police.  Violation of the judge’s order can result in arrest and jail for the offender.

Not all electronic mischief rises to the level of cyberstalking.  When a wife changed her husband’s password, took his e-mail’s, and used them against him in a divorce, that was not cyberstalking, because there was no threat of imminent violence, merely “uncivil behavior that can cause distress or annoyance.”

© 2010 Mark Wolin | All rights reserved.Toobular