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The Law Office of Paul Bernardini

Seniors Displaced as Grace Manor in Port Orange Ordered Shut Down Over Abuse

According to an article in the July 13, 2016, issue of the Daytona Beach News-Journal, Grace Manor in Port Orange has been ordered shut down by the state after being accused of improperly reporting sexual assaults to unwilling patients in the memory care unit. Unfortunately, this is not the first time Grace Manor has been accused of nursing home abuse, nor is it by any means the only nursing home affected by mismanagement and failure to perform mandatory background checks, for example.

Everyone (I mean everyone) is more than welcome to a free telephone conference concerning any questions about nursing home abuse and nursing home injuries. So if you have any questions or concerns, please call me at 386-258-3453.
- Paul Bernardini

Rear-End Collision and Florida's Comparative Negligence Standard

Although most people assume that the last car in a rear-end collision is always 100% at fault, in 2012, the Florida Supreme Court cleared the way for the rear driver to present evidence as to the partial fault of the front driver in causing such a collision.

In Cevallos v. Rideout, et al., the Florida Supreme Court overruled the 4th District Court of Appeal’s decision to attribute sole fault to the rear driver in a collision. This case involved three drivers. The one in the middle had been on a cell phone and abruptly hit her brakes, colliding with the car in front of her. This resulted in the rear car colliding with her.

This decision means that now the rear driver can pursue damages, even if partially. Florida operates under a pure comparative negligence standard, which allows proven fault to be split between drivers (here, the middle driver), allowing the third car to recover a percentage of the damages. Of course, this must be argued by a competent lawyer.

Keep this in mind if you’ve been involved in a rear-end collision and you believe that the car you hit has been negligent in any way. Call us right away before you admit fault or talk to the insurance company, and never sign anything. Our consultations are always free.

Slip/Trip and Fall Injuries and Liability (Premises Law)

It is often difficult to prove who is at fault in a Slip/Trip and Fall injury. The property owner/renter or employee (hereinafter the “owner”) will not always be responsible for a situation that a reasonable person would and could have avoided. But if the owner caused and/or knew about the situation, he must fix it – or at the very least, post a visible sign of caution, or be liable for any consequences that may occur.

Many of these cases are decided by the perception of reasonableness. In order for a slip/trip and fall suit to be successful, the following may have to be proved by the plaintiff:

1. The owner created the situation;
2. The owner knew about the unsafe condition and failed to correct it in a reasonable, timely manner;
3. The owner reasonably should have known about the condition, foreseen the danger, and corrected it before your accident;
4. The owner did not have in place safety measures to reasonably check for hazards.

But could the owner have avoided the condition? Was the owner guilty of negligence and have a record of such negligence? Did he know about it and have sufficient time to rectify the situation? Did he do all he could to prevent injury, such as posting a sign until the danger was either fixed or removed? Was the lighting adequate and working, or was the area poorly lighted?

The injured party must prove negligence on the part of the owner. The injured party will also have to anticipate that the defense will be claiming the injury is due to some carelessness on the part of the plaintiff:

1. Did being on a cell phone or otherwise being distracted prevent him from noticing the hazard, when another person who was paying attention noticed the hazard?
2. Did the plaintiff have permission to be on the premises?
3. Did he ignore the perfectly adequate signage warning of the hazard?

Slip/trip and fall law, also known as premises law, can be complicated. There are many factors to consider, evidence to be gathered, and questions to be answered. You need a qualified personal injury attorney – and as soon as possible – if you believe you have been injured due to the negligence of the owner.

Please call me, Paul Bernardini, at 386-258-3453, and come in for a free consultation, before it’s too late. Your injuries must be addressed and your situation evaluated to determine the best plan of action. Don’t wait!

Sports and Exercise Injuries

The eight most common sports and exercise injuries are:

• Strains and sprains
• Swollen muscles (myositis)
• Achilles tendon
• Shin splints (pain along the shin bone)
• Groin pull
• Knee
• Tennis elbow (epicondylitis)
• Rotator cuff

The most common sports and exercise injuries will heal over time or with minor rehabilitation. First, don’t “play through” the injury. This can cause more pain and harm. Rest, ice, compression and elevation (RICE) are the most effective methods to relieve pain, reduce swelling, and speed healing. Rehabilitation, pain relievers and sometimes surgery can help if these methods fail.

However, there are more serious sports injuries that may warrant legal action:

• Head Injury – Concussion or Hematoma
• Neck Injury
• Back Injury
• Paralysis

 A recent study* suggests that 40% of ex-NFL players have brain damage from concussions. We’ll cover these types of injuries under a separate post sometime in the near future.

Under Florida law, sports trainers, personal trainers, gym owners, and sports coaches may be liable for injuries and accidents caused by their negligence, such as the failure to properly instruct, supervise, use proper and safe equipment, and take other reasonable measures to prevent harm.

If you have been injured while playing a sport, swimming, or working out at the gym, and you think it may be due to negligence of some sort, please call me at 386-258-3453 to discuss your injury during a free consultation. We’ll evaluate your situation and take the next steps toward your recovery.

*Copyright (c) 2016 HealthDay. All rights reserved.

Workplace Injuries – Florida Workers’ Compensation Law

Florida Workers’ Compensation is company-funded insurance that covers most, but not all, employee’s injuries on the job. Compensation may include the following:

• Medical and rehabilitation expenses, such as doctors, hospitals, medication, and rehab
• Income replacement for disabled workers
• Lump sum payments for workers left with permanent partial disabilities
• Survivor benefits, both income replacement and lump sum for funeral expenses

In exchange for this coverage, the employee agrees not to sue his or her employer for negligence. Workers’ Compensation does not cover your injuries sustained under these circumstances:

• You were intoxicated with alcohol or illegal drugs;
• Your injuries were self-inflicted;
• You started a fight and were injured;
• Your conduct violated company policy; and/or
• You were not on the job.

If you have been injured on the job, the law requires that you report your job-related injury within 30 days of your knowledge of the accident or injury. You will have to see a doctor authorized by your employer or the insurance company.

Workers’ Compensation Law is a complex process and it is difficult to navigate without someone in your corner. It’s the classic case of the big insurance companies against the injured party – you, the claimant – and it’s tough to do alone. The very least you should do is consult an attorney, and our consultations are always free. Call 386-258-3453, and we’ll be happy to discuss your options.

Questions to Ask Your Lawyer

Before you visit a lawyer, make sure you have a list of questions to ask your lawyer and make the most of your consultation. At Bernardini Law, our consultation is always free. Here are a few general suggestions to start with.

1. What information do I need to bring for my consultation? Will I meet with a lawyer or a case worker? (On the phone when you schedule your consultation.)
2. How will I be charged for my case? Up front (retainer), by the hour (what is your hourly rate), or a percentage of the settlement (contingency)? What is the percentage?
3. How are expenses billed, and what might they consist of?
4. Will a lawyer or a case worker handle my case?
5. If my case is handled by a case worker, how much education do they have and what difference will this make in winning my case?
6. If a lawyer, how much access will I have to him or her? How often will I be able to talk with him or her?
7. Does the lawyer charge me for his secretary's time, and if so, how much?
8. How often and from whom will I receive status reports?
9. If I am not happy with my lawyer because I never get to talk to him or her, and I decide to find other representation, how much do I have to pay?

These questions are important and can form the basis of good communication with your lawyer from the beginning.  Of course, you will have your specific questions, which you should also bring in a list.

Please give me a call at (386) 258-3453 and we’ll set up a time for your free consultation. The sooner we begin, the sooner we’ll arrive at positive outcome for your lawsuit.

Subpoena vs. Summons: Your Legal Rights and Responsibilities

First of all, being served with a subpoena is not the same as being served with a summons; however, failure to comply in either situation will put you in contempt of court, which carries fines, possible jail time, or both. In either instance, you must swear to tell the truth and testify to the best of your ability.

A summons is a demand to appear in court because someone is suing you. It must be served by the sheriff or a licensed private detective. In some cases, a summons can be served by certified mail. Failure to comply with a summons and appear in court results in the other side winning by default, and puts you in contempt of court.

A subpoena is a demand for evidence or testimony on a case that may or may not involve you. It can be your testimony of past events, or documents and/or records you have that are related to the case. Both a summons and a subpoena can be either for a civil or criminal case.

Once a subpoena is issued by the court, however, it can be served by almost anyone as long as it is done properly. Because the court is asking for your participation in a civil or criminal case, you may be paid a fee. The amount depends on various factors, such as distance you have to travel, whether you have to stay overnight, etc.

You can be subpoenaed for specific information in a case you are already involved in. For example, in a child custody case, you may be subpoenaed for DNA samples, medical records, income tax returns, or computer files.

While it may be disconcerting to receive a summons or a subpoena, don’t panic. There are time limits in which to respond, however. You should immediately speak with your attorney, who can review and discuss your testimony and advise you about the consequences.

You should know that you have a constitutional right that protects you from giving evidence or testimony which will incriminate you. However, you must never destroy any evidence that is related to the case. Let your attorney decide what to do with the evidence you have. He or she will advise you and represent you in court, if necessary.

If you receive a subpoena or a summons, or have any questions at all about these two processes, please call me at Bernardini Law, 386-258-3453. I’ll be happy to discuss your situation with you, at no charge. Together we’ll together to address your situation and plan the most beneficial outcome.

Motor Vehicle Accidents

Auto accident, car accident, automobile accident, collision, car wreck, car crash -
no matter what you call it, the end result can change your life forever.

We are more distracted than ever before when we drive; by our cell phones, texting, radios (most new cars display artist and song title), GPSs, and all the new technology at our fingertips. We’re so used to multi-tasking, we can’t even stop when we get behind the wheel!

The National Safety Council estimates that 38,300 people were killed and 4.4 million injured on U.S. roads in 2015, which is the largest one-year percentage increase in since 1965. Surprisingly, according to Newsweek* magazine, “One of the strongest correlations tends to be between the economy and traffic fatalities.” That makes perfect sense: more jobs, more cars on the road and more people hurrying to get to those jobs. Also, more jobs, more money for more vacation trips – on the road.Accident and death rates always increase over the summer months.

Please take your driving safety seriously. It’s a lot more risky than ever before. And since about 40% of accidents are caused by uninsured or underinsured motorists, make sure you have uninsured motorist coverage. But if you’ve been injured in a car accident, or if a loved one has been in a fatal motor vehicle accident, please call us at 386-258-3453 as soon as possible. We’ll make sure you receive the maximum compensation you’re entitled to. The consultation is always free.

*Newsweek, “2015 Brought Biggest Percent Increase in U.S. Traffic Deaths in 50 Years” by Stav Ziv, 2/17/16