Florida Legal Topics

DeBary Legal News - Personal Injury

The Law Office of Paul Bernardini

Personal Injury at Outdoor Parties

Happy New Year from Paul Bernardini. Enjoy the holiday season. But, be careful out there.
While you are enjoying the parties don't over imbibe. And with lots of other party-goers it's easy to miss seeing a hazard that causes you to slip and fall. It could be a drink spilled on the sidewalk or a soda can that didn't get picked up promptly.

Owners of public sidewalks and roadways have a legal obligation to maintain these areas in a reasonable safe condition. The owners have a duty to routinely and responsibly maintain these areas in order to prevent danger to public users of the premises. With lots of crowds, they may not respond as quickly when notified of a hazard on the sidewalk or road. But, if your injured because of their lack of attention, they may be responsible.

If you, or a loved one, are injured in a slip and fall accident on a public sidewalk or roadway, call Attorney Paul Bernardini. He has been representing personal injury cases in Daytona Beach for over 30 years.

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!

Insurance - Personal Injury Protection

Extended PIP provision of policy was ambiguous as to whether insurer's liability for extended PIP benefits was limited to $10,000 or whether insurer was required to pay all insured's medical expenses without limitation. Because ambiguity must be construed against insurer as drafter of policy, trial court erred in entering summary judgment for insurer in insured's declaratory judgment action, finding that extended PIP coverage only allows for recovery of medical expenses until $10,000 limit is reached. Spaid v. Integon Indemnity Corp., 39 Fla. L. Weekly D1299 (1st DCA opinion filed June 18, 2014.)

Medical Malpractice Statute of Limitations - When Does Time Start?

In Baxter v. Northrup, 39 FLW D4 (5th DCA, December 20, 2013), Judge Torpy of the Fifth District Court of Appeal in Daytona Beach wrote a well reasoned opinion concerning the statute of limitations in a medical malpractice claim. Generally, the statute of limitations is two years. However, when there is a question of fact as to when the plaintiff knew or should have known of the possibility of medical negligence, the statute is two years from the date the plaintiff became aware that he had a possible claim. In no event can the time be more than four years.

This is an important case because the plaintiff became aware that he had a foot drop on November 3, 2004. The Fifth District said that even though the plaintiff became aware that he had a foot drop, he was not aware that his foot drop was caused by negligence. The Fifth District Court of Appeal held that a jury could take into consideration the post operative treatment and the discussions that occurred when the plaintiff was specifically told that having a foot drop was normal. This means the jury will decide the time limit when the question of time limit is a factual question.

Insurance - Uninsured Motorist Coverage

On November 22, 2013. The Second District Court of Appeals detailed that an injured insured may bring a direct action against his or her own uninsured motorist carrier without having first resolved the claim against the negligent party. Woodland v. Travelers Indem. Co., 699 So. 2d 1361, 1363 (Fla. 1997). However, injured insured must demonstrate that he or she is entitled to benefits on the basis that the negligent party is an uninsured or underinsured motorist. Allstate Ins. Co. v. Boyton, 486 So. 2d 552, 557 (Fla. 1986).

In this specific case, Ms. Neff acknowledges that the tortfeasor has $50,000 in liability coverage and that her damages are less than that amount. Because of this, Ms. Neff did not prove her damages exceeded the underinsured driver's policy limits of $50,000. Therefore she must resolve her claim with the negligent party before she can make a claim for her underinsured motorist coverage.

The Court's ruling is consistent with past rulings holding that uninsured motorist coverage is to compensate the injured insured over and above the negligent party's liability coverage. See State Farm Mut. Auto. Ins. Co. v. Moher, 734 So. 2d 1088, 1088  (Fla. 2d DCA 1999).

The above information is intended for general purposes only and should not be construed as legal advice.

Medical Malpractice - Doctor Failing Board Exams

The Second District Court of Appeal held that it was proper for the trial judge to exclude evidence that the defendant had repeatedly failed board certification exams. The plaintiff wanted to introduce evidence for the jury to see that the defendant doctor had repeatedly failed the board certification exam. Second, the plaintiff wanted the trial judge to disqualify itself after the trial judge wrote a derogatory note about the plaintiff. The Court of Appeals held that the fact that the doctor failed the board certification test was not relevant. However, the Court did agree that the Judge’s misconduct required the Judge to be disqualified. M.B. v. S.P., M.D., and CDMG, P.A., 38 FLW D2192 (October 18, 2013).

Personal Injury - Defective Chair

The Supreme Court of Florida held that a law office could be held liable for the failure to warn a client of a defective chair in a lawyer’s office.

There was conflicting evidence as to whether or not the defective chair caused the plaintiff’s injury. The Court ruled that it was improper for the District Court to re-way expert testimony and find that the trial court should have entered a directed verdict in favor of the law office. The Court held that it was a jury question as to whether or not the law office was responsible for the client’s injury due to the defective chair. Friedrich v. Fetterman and Associates, 38 FLW at 768 (Supreme Court of Florida October 24, 2013).

Claims against insurance companies & personal injury

A good case for people who make claims against insurance companies is DeLeon v. Great American Insurance Company, 35 Fla. L. Weekly D2250. This case dealt with the right of the insurance company to take a statement under oath before suit can be filed. Generally, the insurance company has the right to take a statement under oath before a suit can be filed against the insurance company for failure to pay. Not all insurance companies exercise this right. However, when the right is exercised, the pre-suit examination under oath must be done properly. The pre-suit statement cannot be used to simply harass and vex the claimant. If done for the purpose of harassing and vexing the claimant, the insurance company can find itself responsible for the claimant's attorney’s fees. I think all personal injury claimants will be happy to review this case. I can assure you that our office intends to make good use of this case.