South Florida Injury Lawyer Blog

Explaining the Alcohol Defense in Florida Injury Lawsuits

February 23, 2022 | by David J. Halberg, Esq.

Florida personal injury lawsuits are efforts to compel a negligent party (defendant) to pay monetary compensation for causing some preventable harm to the person who was hurt (plaintiff). There are, however, a number of legal defenses that can be raised to either prevent the defendant from being found legally responsible (liable) or reduce the amount of money they have to pay. One example is called the “alcohol defense.” It was recently raised in the case of Mainstreet Entertainment Inc. v. Guardianship of Jacquelyn Faircloth before Florida’s 1st District Court of Appeal. The court tossed a $28 million+ verdict against two bars because the lower court improperly prohibited one of them from asserting the alcohol defense. Florida injury lawsuits

As West Palm Beach injury lawyers can explain, the alcohol defense is outlined in F.S. 768.36. It states that in civil actions, a plaintiff can’t recover for any damages for loss or injury if the court finds that at the time the plaintiff was injured:

They were under the influence of any alcohol or drug to the extent their normal faculties were impaired OR their blood alcohol level was 0.08 percent or higher AND
As a result of that intoxication, the plaintiff was more than 50 percent at-fault for their own injuries.

This is especially noteworthy in Florida because our courts otherwise abide by a system of pure comparative fault, per F.S. 768.81. What that means is a plaintiff’s financial damages will be reduced by whatever percentage of the fault they shared – up to 99 percent. So if you’re 75 percent liable, you can still collect damages for the other 25 percent that is someone else’s fault. Many other states won’t let a person recover any damages at all if they are more than 49-51 percent liable for their own injuries. A few states won’t let you recover anything at all if you are even 1 percent at-fault. In Florida, you can theoretically be 99 percent at-fault and still recover on that 1 percent of damages (though that scenario isn’t ideal).

The alcohol defense, however, can eliminate your right to compensation entirely if you 51 percent or more at-fault for what happened because of alcohol or drug intoxication.

So that brings us to the Mainstreet Entertainment case. This was a drunk driving tragedy involving two young people – one a pedestrian and one behind the wheel – both allegedly intoxicated. The question was apportionment of liability. Continue reading

South Florida Teacher Sexual Abuse Case Alleges School’s Negligence

February 15, 2022 | by David J. Halberg, Esq.

Sexual abuse in Florida schools can be the basis for both criminal charges and civil claims. A recent example involves a Naples elementary school teacher convicted last month of more than 20 counts of child molestation (sexual assault of a child under 12). He’s now serving a 25-year prison term. South Florida sexual abuse lawyer

Based on the number of survivors (20), this was the second-largest case of sexual abuse by an educator in Florida since 2014. Last year, parents filed lawsuits accusing the Collier County School District of mishandling the sexual abuse allegations and failing to protect their children from years of molestation despite blaring red flags – including a specific allegation from a student to half a dozen employees three months before the offender was removed from school.

The district told The Naples Daily News that as soon as it learned of the allegations, the teacher was expelled from campus and later fired by the school board upon his arrest. The police say the teacher sexually abused young students from the day he started work until the day he was removed from the school – in the classroom, on school grounds, in the soccer field, in his car, and in the homes of children he tutored.

Sworn statements made to law enforcement indicate that six school employees – including teachers, administrators, and a school recess monitor – were informed of allegations made by a girl three months prior to the teacher’s removal from the school. The girl told the recess monitor that the teacher had sexually abused her friend. That information was then passed on to the five other employees. Yet it appears nothing was done, the NDN reported. In that three-month window, the police say, the teacher continued to abuse students – and even started molesting three more. Yet in response to a lawsuit filed by one of the survivor’s parents, the school insists it could not have known about the teacher’s “propensities” prior to the date of his arrest. Continue reading

Explaining Florida’s Three Strikes Rule for Medical Malpractice

February 10, 2022 | by David J. Halberg, Esq.

As experienced Palm Beach medical malpractice lawyers, we’re closely familiar with the 2004 Florida law passed overwhelmingly by voters with the intention of preventing dangerous doctors from practicing medicine. It’s a “three strikes” rule for medical malpractice that seems fairly straightforward: A doctor with three “strikes” of medical malpractice will lose their license to practice. Unfortunately, we know all-too-well how ineffective it is, thanks to follow-up efforts by the state legislature, which made it nearly impossible for the state board to actually levy a strike. Palm Beach medical malpractice lawyer

The “Three Strikes Rule” was passed as an amendment to Chapters 458 and 459 of Florida Statutes. The law holds that if a physician has three or more incidents of medical malpractice (as established by a standard of clear and convincing evidence), they will be forbidden from the continued practice of medicine in Florida. A “strike” can be derived from a finding of medical malpractice by one of the following:

A final order by an administrative agency following a hearing.
A final order by a judge/jury in a civil case.
A binding arbitration decision.

It should be noted that medical malpractice isn’t as easy to prove as the typical negligence case. It’s not enough to show the absence of ordinary care. Rather, one must prove – via expert witness testimony from a similarly-situated professional – that the physician failed to abide the applicable standard of care, which depends on that doctor’s education, skill, specialty, and resources. But even with this higher standard and even with the three strikes law, doctors with checkered professional histories continue to practice.

Numerous journalistic deep-dives and scholarly studies in recent years – from NBC-5 in West Palm Beach to The Palm Beach Post – have highlighted this legal loophole. Yet as our medical malpractice lawyers can attest, the problem persists, with Florida doctors who’ve paid out 3+ medical malpractice claims continuing to practice, often with patients none-the-wiser. News outlets have reported there are hundreds of still-practicing doctors who have collectively paid out hundreds of millions of dollars in Florida medical malpractice lawsuits stemming from the deaths of more than 1,000 patients over 10 years. Continue reading

Florida Trip & Fall Lawsuit Alleges Dangerous Sidewalk is Fault of Restaurant and City

February 2, 2022 | by David J. Halberg, Esq.

Can a Florida restaurant be liable for the dangerous condition of an adjacent sidewalk, even if the portion of pavement in question is technically owned by the city? In a pending South Florida trip-and-fall lawsuit, the answer is: Maybe. As our Palm Beach injury lawyers can explain, more than one entity can be liable for a dangerous walkway condition. Here, the final ruling is likely to come down to the level of control the restaurant had over the sidewalk. Palm Beach restaurant injury lawyer

Gass v. Chops City Grill, Inc., is a case out of Naples recently weighed by Florida’s 2nd District Court of Appeals. Both the original plaintiff – a woman who was injured after tripping on a section of sidewalk – and the City of Naples, a co-defendant in the case, appealed the lower court’s summary judgment in favor of a local restaurant. The restaurant had successfully argued it had no duty of care to the woman or responsibility to maintain the sidewalk, which it didn’t own. But the appellate court reversed, finding the restaurant hadn’t met its proof burden. The case will now proceed against both defendants.

According to court records, plaintiff was with her then-boyfriend in 2015, on their way to meet another couple at a Naples restaurant. Her boyfriend dropped her off in front of a different restaurant (defendant’s) before driving away to find a parking spot. After plaintiff got out of the car, she stepped off the street and onto the sidewalk. Within a couple of steps, she fell to the ground and was hurt. She wasn’t sure the exact spot where she fell, but it was an area with pavers in front of the defendant’s restaurant. At the time she fell, she said she wasn’t paying close attention to the ground, as she was looking around at which direction she needed to go.

In her subsequent premises liability lawsuit, she initially named only the city. Later, she added the restaurant as a co-defendant. She alleged that as a business invitee to the City of Naples, the city owed her a duty of care to maintain the premises/sidewalk in a way that ensured the walkway was safe. Instead, it was defective/dangerous. The city’s failure, she asserted, amounted to negligence and was the proximate cause of her injury.

She lodged a similar complaint against the restaurant, which she said had negligently or incorrectly installed the pavers, making them unsafe, defective, and dangerous, resulting in a public tripping hazard. She further alleged the restaurant knew about this dangerous condition and failed to remedy it. Continue reading

South Florida Negligent Security Claim Targets Store, Storage Unit Owner

January 30, 2022 | by David J. Halberg, Esq.

South Florida negligent security lawsuits involve allegations that a property owner failed to use reasonable care to protect lawful guests from foreseeable harms – including crimes committed by third parties. The occurrence of a criminal act resulting in injury on its own doesn’t open the door to a civil lawsuit against the property owner. Some very specific boxes need to be checked to proceed with this type of premises liability claim. Palm Beach negligent security lawyer

One recently-filed negligent security claim accuses a store and storage unit of failing to protect a South Florida surgeon who was kidnapped, beaten and threatened with death by two attackers.

According to the civil complaint, the incident occurred three years ago. His kidnappers, armed with guns and tasers, accosted him at a Hallandale Beach store parking lot, stunned him with a taser and then threw him into the rear of a cargo van before driving him to a local storage unit. There, he later told law enforcement, he was bound to a rolling chair and burned with metal cutters heated by blow torches, slapped, punched, threatened, coerced into giving his home access code and forced to drink alcohol until he passed out. The motive, authorities say, was robbery. The two assailants dumped him – tied up – in the back seat of his car early the next morning. That’s where police found him.

One of the men was sentenced to 11 years in prison after pleading guilty to federal kidnapping and conspiracy charges. The other, whose estranged wife was a patient of the doctor’s, was extradited from Spain and convicted last month on the same charges as the other. He faces a possible sentence of life in prison.

But as our South Florida negligent security attorneys can explain, that’s not the end of the ordeal. Entirely separate from the criminal proceedings is the civil case, which alleges both the store and the storage unit failed in their legal duty to take reasonably prudent measures to protect people on their respective properties. Plaintiff asserted both businesses had a history of prior violent crimes on site and failed to take adequate measures to keep people safe. Continue reading

How Hard is it to Get Punitive Damages in Florida Medical Malpractice Lawsuits?

January 23, 2022 | by David J. Halberg, Esq.

Punitive damage awards – which can potentially triple the monetary damages to which you are entitled in an injury lawsuit – are notoriously tough to obtain in Florida medical malpractice cases. Even getting judicial approval to request them requires proof of gross negligence and/or intentional misconduct – rare in any medical negligence case. The West Palm Beach medical malpractice attorney you hire should be able to tell you whether it’s at all a possibility after a careful assessment of the facts of your case.

There are two basic types of damages you can seek in a Florida injury case: Compensatory and punitive.

Compensatory damages are paid to compensate someone for specific losses, injuries or detriments. There are actual (aka “special”) compensatory damages (medical bills, lost wages, transportation, rehabilitation, property replacement, etc.) as well as general compensatory damages (pain and suffering, emotional distress, loss of consortium, loss of life enjoyment, etc.).

Punitive damages, meanwhile, are intended to punish the defendant for egregious negligence or intentional wrongdoing and/or to serve as a deterrent. It is paid to you, but the driving factor is the outrageousness of the defendant’s wrongful conduct. Punitive damages are capped in Florida to be either three times the amount of the compensatory damages OR $500,000, whichever is greater.

Medical malpractice claims in Florida are tougher than the average tort case as it is because it’s not enough to show the health care provider simply failed to use reasonable care (the standard for typical negligence claims). What must be established – by expert witness testimony of a similarly-situated medical professional – is that the health care provider failed to follow the applicable standard of care for their specialty, region, and circumstances. Doing so would entitle the claimant to collect compensatory damages for their injuries.

But punitive damages would only be allowed, per F.S. 768.72, if there was proof the health care provider in question engaged in intentional misconduct or gross negligence. Continue reading

Florida Sexual Abuse Settlements May Absolve Future Defendants, Should Be Drafted With Great Care

January 14, 2022 | by David J. Halberg, Esq.

When negotiating Florida sexual abuse settlements, one must exercise great care and use precise language. Failure to do so may unintentionally absolve other responsible parties of future accountability. West Palm Beach sexual abuse attorneys

Recently, defense attorneys for Britain’s Prince Andrew, attempting to get a federal civil sexual abuse lawsuit tossed in New York, cited a prior settlement agreement signed in Florida. The prior settlement agreement in question was signed by alleged sexual assault victim, Virginia Giuffre (who has agreed to make her identity public) Andrew’s one-time associate, Jeffrey Epstein. The latter was a jet-setting financier with many high-profile friends who died in 2019 while awaiting a criminal trial for decades of alleged sex trafficking of minors – including Giuffre.

At issue in the pending civil litigation of Giuffre v. Prince Andrew is a $500,000 Florida sexual abuse settlement agreement Giuffre and Epstein signed in 2009. The question is whether it released others – like Andrew – whose purported sexual encounters with underage girls were allegedly arranged and/or facilitated by Epstein.

The prince has vehemently denied Giuffre’s allegations that he sexually abused her when she was a minor. Regardless, his attorneys argue that he’s shielded from civil litigation by that 13-year-old settlement agreement because it contained a provision indicating Giuffre would not bring any future claims against other “potential defendants.” Continue reading

Can I Collect Punitive Damages for Palm Beach DUI Injuries?

January 5, 2022 | by David J. Halberg, Esq.

Drunk driving injuries can be horrific, perhaps the more so because they are always wholly preventable. For this reason, people who have suffered West Palm Beach DUI injuries may be entitled to pursue punitive damages on top of regular (compensatory) damages. This is noteworthy because very few types of Florida injury cases allow punitive damages. West Palm Beach DUI injury lawyer

As our Palm Beach injury lawyers can explain, compensatory damages are intended to indemnify a person for specific losses or injuries. It replaces what’s lost (medical bills, lost wages, etc.) or in the case of intangible losses (i.e., emotional distress, pain and suffering, loss of life enjoyment, etc.), it provides some measure of monetary relief. There is no special process to ask for compensatory damages.

Punitive damages are different because they aren’t solely to compensate someone for losses, but rather to penalize the person who caused the damage and/or deter future acts of wrongdoing. You must specifically ask the court to seek punitive damages, and they’re only allowed in certain instances. DUI injury cases are one of those.

This matters because punitive damages can substantially increase the dollar amount of compensation to which you are entitled. While Florida law specifically caps punitive damages at three times the compensatory damages OR up to $500,000 (whichever is higher), DUI damages are specifically exempted from this cap.

$900k Florida Slip-and-Fall Verdict Against Wal-Mart for Slippery Bathroom

December 29, 2021 | by David J. Halberg, Esq.

Several years ago, changes to Florida’s slip-and-fall law made it more difficult for plaintiffs to win such cases. But as a recent six-figure verdict revealed, they continue to be worth pursuing, particularly when injuries are serious and your lawyer is experienced. Palm Beach slip and fall lawyer

“Successful Florida slip-and-fall cases are those that involve injuries that were clearly preventable,” said West Palm Beach Injury Lawyer Ryan Fogg. “Often times, corporations will create safety rules to prevent accidents like these. But if the management and staff fails to follow through and abide by those rules, serious injuries can result, and the corporation can be held accountable.”

Florida’s slip-and-fall statute is F.S. 768.0755. It refers to “premises liability for transitory foreign substances in a business establishment.” This is just a fancy way of saying legal responsibility for a slippery substance on the floor of a business that’s open to the public. In order to prevail in these cases, one must prove the property owner/controller had either actual or constructive knowledge of the dangerous condition that caused the fall. Actual knowledge would be if the property owner created the condition or was clearly informed about its existence. Constructive knowledge can be established when the condition:

Existed for a substantial enough length of time that the business would/should have discovered it in the exercise of ordinary care.
Occurred with regularity, and thus was foreseeable.

$2.6M Florida Medical Malpractice Verdict for Failure to Hospitalize Sooner

December 26, 2021 | by David J. Halberg, Esq.

Delay in timely treatment and/or diagnosis that results in patient harm can be legal grounds to pursue a Florida medical malpractice claim against a healthcare provider. As our Palm Beach medical malpractice attorneys can explain, building cases like these requires using expert witness testimony to establish that the defendant health care providers failed under the circumstances to abide the applicable standard of care for their medical specialty.

Recently, a Florida jury awarded $2.6 million to the family of a man who died of a stroke – an occurrence the jury found was preventable had he been properly treated by the physicians and hospital.

As reported by Law.com, the 62-year-old decedent was seen by a vascular surgeon in the early summer of 2016. This was on the recommendation from his primary care doctor, who believed the patient’s carotid arteries (which supply blood to the brain, neck, and face) were “occluded,” or blocked. Upon examination, the surgeon diagnosed the patient with severe atherosclerosis. The man’s carotid arteries were 90 percent blocked. The surgeon recommended a procedure called an endarterectomy to remove the buildup. But it wasn’t necessary to act right away, the surgeon said, because the man had no symptoms. Instead, the procedure was scheduled for 18 days later. If the patient did become symptomatic, he was to go immediately to a hospital.

One week before the scheduled procedure, the patient became dizzy and weak. He rushed to a local hospital and was promptly admitted. The hospital contacted the office of the vascular surgeon, who was on vacation. Ultimately, they did obtain records of the scheduled surgery from the vascular surgeon’s office. Two other surgeons did not come to treat the patient immediately, but they did bump up the surgery to the following morning. However, the patient deteriorated overnight. He fatal stroke hours before the scheduled surgery.

The man’s widow, as representative of his estate, filed a Florida medical malpractice lawsuit against the first vascular surgeon, his practice, and the hospital. Continue reading