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personal injury

Suing for Kratom Overdose

Suing for Kratom Overdose

Kratom is an extract from the leaves of a plant, mitragyna speciosa, that is native to Southeast Asia. In recent years, kratom  has become quite popular in the United States as a dietary supplement.   Kratom has several psychoactive compounds and acts as a stimulant at low doses and a sedative agent at higher doses.  Its distributors ascribe many extraordinary health benefits to the plant : curing opioid addiction, easing withdrawal from opiods, and alleviating depression and anxiety.  The limited studies on kratom’s physiologic effects indicate that it may provide analgesia and improvements in mood, but it can also cause addiction, dependence, and death.

Regulation of Kratom in the United States

       Due to the paucity of research on kratom’s physiologic effects, The FDA has discouraged the sale and consumption of kratom.  It has also stated that it is illegal to market kratom as a dietary supplement.   Due to concerns regarding kratom’s adverse health effects, import of kratom into the United States for medical purposes has been banned.  Nonetheless, it is legal to buy kratom as a botanical extract. A burgeoning industry of kratom growers and distributors has emerged in the last 15 years that generates billions of dollars in revenue yearly.  The FDA estimates that there are now over 5 million people who regularly consume kratom products in the United States.  The FDA has initiated a few enforcement actions against kratom manufacturers who were marketing kratom products to treat opioid use disorders and withdrawal symptoms.  However, the FDA has thus far failed to enforce its ban against kratom manufacturers who market their products as extracts rather than supplements (though all of these products are in fact  designed to be consumed like drugs).

A Tide of Kratom related Overdoses and Deaths

A 2019 report from the American Association of Poison Control Centers (AAPCC) noted that there was a 52-fold increase in kratom use, based on reports of intoxication,  between the years 2011 to 2017.  As kratom use has increased,  many consumers have paid the ultimate price.  Over 18 months in 2016 and 2017, 152 overdose deaths involving kratom were reported in the United States, with kratom as the primary overdose agent in 91 of the deaths.

 

Wrongful Death Litigation Against Kratom Manufacturers

 There have been an increasing number of wrongful death cases filed against kratom manufacturers in recent years as kratom overdose deaths have risen.  These cases tend to assert claims that the relevant manufacturers and retailers are negligent in how they market their products, and/or are strictly liable for failure to warn consumers of their dangers.

- In 2022, the Estate of Krystal Talavera won a judgment of $11,000,000 against Sean Michael Harder, owner and operator of the Kratom Distro after Krystal died from a kratom overdose on Father’s Day 2021.

 In August 2023, a Seattle jury awarded $2.5 million to a Castle Rock family in a wrongful death lawsuit after a man with back pain died after ingesting kratom. 

 

If you or a family member have been injured by the use of kratom products, call personal injury attorney John Clarke at (305)467-5560 for a free consultation!

        

2023 Changes to Florida’s Personal Injury Laws

2023 Changes to Florida’s Personal Injury Laws

A bill was recently signed into law in Florida that makes it more difficult for plaintiffs to sue for personal injuries in many ways.

The new law includes the following provisions:

  • Repeal of law that required insurers to pay a policyholder’s attorney fees and costs if a court held that the company acted in bad faith

  • A shortened statute of limitations for negligence-related personal injury cases, (reduced from four to two years)

  • A modified comparative fault statute that denies Plaintiffs any relief from defendants in a personal injury suit if the plaintiff is found to be 51% or more liable.

  • Significant reductions in damage awards against property owners when their negligence causes a personal injury

  • Requires new disclosures to juries about letters of protection used to obtain medical treatment

       While the law was advertised as being necessary to bring down insurance and litigation costs, my opinion is that it will do neither, but instead compromise the ability of plaintiffs to be compensated for their injuries.  There is no provision in the new law that regulates insurers’ business practices  nor caps the rates an insurer charges.  On the other hand, the law will discourage attorneys to take cases against insurers for wrongdoing on a contingency basis unless the amount in dispute is very high.  As a result, many consumers whose claims have been wrongfully denied by their insurers  who lack financial resources will likely be unable to pursue their claims in court.

      The adoption of a modified comparative fault law is also problematic for personal injury plaintiffs.  Under the previous pure comparative fault standard, all parties who shared liability for an injury would be charged with paying a portion of the damages that corresponded to their percentage of fault. This system created incentives for everyone to be careful and avoid causing injuries.  Under the new standard, a defendant who is held to be 49% at fault for causing a plaintiff’s injury will not be liable to pay any damages to the Plaintiff.  This scenario creates a potential windfall for defendants, and also will likely cause attorneys to take fewer personal injury cases on a contingency basis.

     In this challenging environment for personal injury lawsuits, it is important that you choose an experienced and knowledgeable attorney to represent you when you are injured. If you have been injured, Call Fort Lauderdale attorney John Clarke for a free consultation at (305)467-5560.

 

Florida Slip and Fall Accidents

Florida Slip and Fall Accidents

Unfortunately, slip and fall accidents are common occurrences in the busy stores and parking lots of the sunshine state. If you slip and fall on someone else’s property, and your fall was caused by an unsafe condition, you may be able to recover against the property owner.

Some of the most common situations that lead to slip and fall accidents are:

·         Wet, slippery surfaces, such as a spill

·         Negligently-maintained parking lots with potholes

·         Faulty construction equipment

·         Unexpected obstacles, such as debris or fallen merchandise

 

Depending on the situation, slip and fall accidents can cause their victims to suffer bruises, broken bones, spine and brain injuries, and dislocated joints.  Also, a slip and fall accident is potentially the basis for a claim for property damage and emotional distress.

1. What you need to prove in your slip and fall case:

You slipped and fell

Your fall caused injuries.

Someone else (often the property owner) failed to maintain a safe environment.

The property owner’s failure to maintain a safe environment caused your slip and fall.

 

 

2. Florida statute section 768.0755sets a high bar for a plaintiff to hold a business  liable for a slip and fall due to a “transitory foreign substance”

This Florida law states that a business may be held liable for a slip and fall due to the presence of a wet or sticky substance only if it had actual or “constructive” knowledge of the condition.  Constructive knowledge may be proven by evidence that the dangerous condition had existed for a period of time prior to the slip and fall, or that the condition occurred with regularity, such that it was foreseeable.

 

3. Evidence concerning the condition that caused your slip and fall is crucial to prove your case

 

As the plaintiff, you have the burden of proof to show that there was a dangerous condition that caused you to fall AND that the defendant knew or should have known about that condition and removed it before you fell.

 

Important evidence:

1.      Video surveillance showing dangerous condition (sticky substance on floor) – most large stores maintain 24 hour video surveillance of their premises

2.      Eye witness testimony that establishes that there was a dangerous condition and that this condition caused your fall.

3.      Maintenance logs that show when and how often the business establishment maintained the premises

4. Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

 

5. Negligence per se is important way of proving slip and fall case in which property owner has failed to obey safety regulation in the design of its property. (ramp that is too steep)

 

The principle of “negligence per se” is that a court will consider a defendant’s actions that violate a law to be negligent without asking whether a reasonable person would have done the same thing.  In slip and fall accidents caused by a structure or surface that does not meet the applicable building codes, negligence per se can be an easy to prove a case.

 6. The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

  1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

  2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

  3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

  4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 

 

7. What Types of Damages You Can Get for a Slip and Fall

Economic damages – medical bills, lost wages, property damage

Non-economic damages – pain and suffering, loss of enjoyment of life, emotional distress, etc.

 

 If you have been injured in a a slip and fall accident, or any other accident, call Fort Lauderdale personal injury attorney John Clarke at (305)467-5560 for a free consultation!

Suing for Wrongful Death

Suing for Wrongful Death

  In Florida, when a person dies as a result of someone else’s wrongful act, the decedent’s estate can sue the wrongdoer to recover money. This lawsuit is called a wrongful death action and is defined by Florida Statutes, Chapter 768. In this article, I will examine the purpose and nature of a wrongful death claim, who is eligible to collect damages,  what type of damages can be claimed, and the statute of limitations for filing this claim.

Definition of a "Wrongful Death"

            Under Florida law, a wrongful death occurs when a person causes another person's death by a "wrongful act, negligence, default, or breach of contract or warranty." (Fla. Stat. § 768.19).  The following fall under this definition:

  • negligent manslaughter (car accident, slip and fall)

  • unsafe condition in a rented house that causes death

  • defective product that causes death

  • intentional, wrongful act that causes death (assault that causes fatal injury, murder, etc.)

    

Who May File a Wrongful Death Lawsuit in Florida

 

          Florida law provides the personal representative of the decedent’s probate estate the exclusive right to file a wrongful death claim on behalf of the estate and surviving family members. (Fla. Stat. § 768. 20).

 

Purpose of a Wrongful Death Claim

 

              A wrongful death lawsuit seeks only financial compensation from the wrongdoer for those who have suffered as a result of his death.  A wrongful death judgment is intended to reimburse the decedent’s family for support he would otherwise provide them.   The judgment may also award the family  intangible losses caused by  the decedent’s death such as “mental pain and suffering.”   In short a wrongful death lawsuit is similar to a personal injury suit in the type of relief sought.   Since the victim has died, however, the beneficiaries of the lawsuit are the victim’s estate and family.

            The burden of proof in a wrongful death action is “preponderance of the evidence,” meaning it is more likely than not that the defendant caused the death at issue.  So it is easier to win a wrongful death action than a criminal case for murder, in which the burden of proof is “guilt beyond a reasonable doubt” (which is what happened in the OJ Simpson cases).

        

 Damages Available in a Florida Wrongful Death Lawsuit

 

          In a successful wrongful death case, the court will order the defendant to pay "damages"—or the plaintiff's claimed losses—to compensate for the death. Under Florida law, the types of potential damages in a wrongful death suit fall into two categories: damages awarded to the deceased person's family and damages awarded to the estate.  Importantly, the beneficiaries of a Florida wrongful death claim are authorized by statute to collect damages for both loss of support from the time of the decedent’s injury until his death and also for the future loss of support and services.  The duration of future losses is computed with reference to the life expectancies of both the survivor and the decedent. In the case of a child beneficiary of a wrongful death action, the remaining period of the child’s minority is considered when calculating future damages.     Damages paid to the family commonly include money to compensate for:

 

  • the loss of the financial support provided by the decedent

  • the loss of the decedent’s companionship to decedent’s spouse

  • the loss of parental companionship, instruction and guidance

  • mental pain and suffering

  • decedent’s medical and funeral expenses paid by a surviving family member.

         The deceased person's estate may also recover the following damages:

 

  • lost wages, benefits, and other earnings from the date of the person's injury to the date of his or her death

  • the value of earnings and benefits the deceased person could reasonably have been expected to retain as savings and leave as part of the estate if he or she had lived, and

  • medical and funeral expenses that were paid directly by the estate.

 (Fla. Stat. § 768.21).

Punitive Damages

          Punitive damages are available in a wrongful death lawsuit if it is shown that the wrongdoer recklessly or intentionally caused the decedent’s death.  Florida Statutes Section 768.72 states that A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.

            In Florida, an award of punitive damages is a two-step process.  First, the trial court determines at a preliminary hearing whether Plaintiff has  presented sufficient evidence that the defendant’s conduct was more than mere negligence .  If the court allows the punitive claim to go forward, the Plaintiff must then establish, based on clear and convincing evidence, at trial that the punitive damages should be awarded.  

          The amount of punitive damages that a court may award depends on the nature of the defendant’s misconduct.   If the court determines that the defendant’s conduct was grossly negligent or reckless, it may award up to three times the amount of compensatory damages or $500,000 (whichever is less) in punitive damages (Florida Statute §768.73(1)(a)).  If the defendant’s conduct is proven to be motivated by financial gain and “unreasonably dangerous,” the punitive damages limits increase to four times compensatory damages or $2 million dollars .  Finally, if it is proven that Defendant had a specific intent to harm the claimant, then there shall is no cap on punitive damages.

The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

  1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

  2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

  3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

  4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, and you will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

Time Limit for Filing a Wrongful Death Action

 

          Like other types of lawsuits, wrongful death claims must be filed within a certain period of time. In Florida, the statute of limitations for most wrongful death lawsuits is two years from the date of the decedent’s death. (Fla. Stat. § 95.11(4)(d)).   However, there is no time limit for bringing a wrongful death claim if the death was a result of murder or manslaughter (Fla. Stat. § 95.11(10)).

          If your family member has died as a result of a wrongful act by another, call Florida wrongful death attorney John Clarke at (954)556-8952 for a free consultation!

Rideshare Accidents

Rideshare Accidents

     Over the past several years, rideshare services such as Lyft and Uber have exploded in popularity across the sunshine state.  In response, Florida’s legislature has passed  several laws that impose insurance requirements on and mandate safety features for rideshare vehicles to protect passengers.  However, these laws do not offer optimal protection to passengers in every circumstance.  

Required Insurance

Florida Statute Section 627.7483 spells out the insurance requirements for Transportation Network Companies (“TNC”) such as Uber and Lyft. When the TNC driver is logged on to the digital network but is not transporting a rideshare passenger, the insurance coverage requirements are:

  • $10,000 for death and bodily injury per person,

  • $20,000 for death and bodily injury per incident,

  • $10,000 for property damage,

  • Personal injury protection benefits, and

  • Uninsured and underinsured vehicle coverage (“UM/UIM”).

There is a twist to the statutory requirement for uninsured and underinsured motorist coverage, which compensates victims for their injuries caused by owners or operators of uninsured motor vehicles. Pursuant to Section 627.727(1),  uninsured and underinsured vehicle coverage  can be rejected by the “insured named in the policy” on behalf of all insureds under the policy by executing a written rejection.  So, UN/UIM is not required to be carried by a rideshare operator or company, but can be rejected by the insured named in the policy, which is usually the rideshare company.  Lyft routinely rejects UM/UIM coverage altogether while Uber select limits lower than the required BI limits . The upshot of these laws and policies is that both TNC drivers and their passengers are financially vulnerable when they suffer injuries caused by the negligence of an uninsured/underinsured driver.

         A TNC driver can protect himself from these risks by purchasing UM/UIM insurance, which should have an endorsement so that it covers him during the transport of rideshare passengers.  The rideshare passenger can apply the UM/UIM coverage for any vehicle for which he is an insured or insured family member to compensate for injuries sustained in rideshare accidents caused by un/underinsured drivers, pursuant to Florida Statute Section 627.727(9)(c).

Other Laws Affecting Safety

A new Florida statute that became effective on January 1, 2022, Section 627.7483, requires rental and rideshare vehicle to be current on safety recalls . The passage of this law was prompted by studies that found large numbers of rideshare vehicles with unserviced recalls listed on the rideshare companies’ apps.

 Recovering for Your Injuries

          In a personal injury lawsuit, a successful plaintiff may collect economic damages as well as non-economic damages.  Economic damages include costs of medical treatment of injuries,  lost wages, loss of future income, and property damage.   Non-economic damages include pain and suffering, loss of enjoyment of life, and, loss of consortium for the injured party’s spouse.  If the accident was the result of egregious or intentional behavior of the at-fault party, the court may also award the plaintiff punitive damages. 

 

            The same damages are available for victims of rideshare accidents as for victims of other automobile accidents.   Florida’s personal injury protection scheme requires each driver’s insurer to provide a personal injury protection policy to pay up to $10,000 for personal injuries sustained by the driver and/or his passengers.   An injured party must claim against this policy first as a source of payment for treatment of his injuries and lost wages.  He may collect from the at-fault driver’s insurance company for damage sustained by his vehicle in the accident. 

 Limitation on Damages for Motor Vehicle Accidents

             While an at fault driver may have resources to pay for his victim’s injuries far in excess of the $10,000 personal injury protection limits, Florida law limits an injured motorist’s right to sue in these circumstances.  Florida law prohibits injured drivers and passengers to sue an at-fault driver for non-catastrophic injuries.  The permanency requirement of F.S. section 627.737 provides that a driver may sue to recover damages sustained in a car accident (both economic and non-economic) only if the plaintiff has suffered death or serious bodily injury (such as significant scarring and permanent physical impairment).  Importantly, this prohibition applies to motor vehicle accidents, but not to motorcycle accidents.

 Proving Your Case

A plaintiff injured in a car accident who meets the permanency requirement of  F.S. 627.737 has the burden to show by the greater weight of the evidence that the at-fault driver was negligent in order to recover for his injuries. 

Most motor vehicle accident cases are grounded in the negligence theory of liability.   A successful negligence plaintiff must show that:

A.    The defendant driver owed him a duty of care.

B.     The defendant driver breached this duty of care.

C.     The defendant driver’s breach caused the plaintiff to suffer injury.

D.    The plaintiff’s injuries resulted in compensable damages (in Florida, this means a significant injury or death).  

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

Summary

As you can see, getting compensated for rideshare accidents can be complicated.  . Florida Accident Lawyer John Clarke represents victims of rideshare and other hired vehicle accidents deal with insurance issues and receive compensation for their injuries.

 

Bicycle Accidents in Florida

Bicycle Accidents in Florida

Florida is a popular place for bicyclists due to its warm weather and many beaches. However,   according to the U.S. News and World Report, Florida is the third most dangerous state for cyclists.. The high rate of bicycle accidents could be down to Florida’s recent surge in population and  relative lack of bicycle-related infrastructure.

This article will give you a primer on what to do if you are injured in a bicycle accident and a summary on the laws and procedures that govern bicycle accidents in Florida.

What to do after an accident:

A.  File insurance claim:

The first step to take if you are injured in a bicycling accident is to file a claim with the insurer of the at-fault party. After a claim is opened, the claim will be assigned to an adjuster. This individual represents the insurer’s financial interests, so he or she will attempt to deny or resolve the claim for as little as possible. It is important to cooperate with the insurance company’s investigation of your claim, but you should hire an attorney to look out for your own interests.

Florida has a no-fault insurance scheme, which provides that each party in an accident must avail himself of his own insurance coverage before seeking contribution from another party’s insurance, regardless of who is at fault.

This means that if you are injured while riding a bicycle but you own a car as well, you need to file a claim against your Personal Injury Protection insurance policy to pay the first $10,000 of your injuries.  If your injuries exceed your PIP coverage, you can sue the other driver and his insurance company to pay the balance of your claim.

 B. Call the police

Make sure to notify the authorities immediately after an accident. This will help to document what occurred and verify the identity of all parties involved.

The police not only document the circumstances and witnesses to an accident, but also investigate the cause of accidents (drunk driving, for example).

C. Collect evidence

Collect as much evidence as you can of the accident  as quickly as possible.  Evidence that may be important to prove your bicycle accident includes:

- Video surveillance captured by traffic cameras

- Names and contact information of eye witnesses

-Data from the “blackbox” (event data recorder) of any cars involved in the accident

-Physical imprints of the accident on vehicles involved

 D. Seek medical assistance

Do this as soon as possible. Seeking prompt medical attention is a sign that you have suffered serious injuries. 

Write on the intake form of your medical provider that the reason you are seeking medical care is injuries sustained in a bicycle accident.

When you are discharged, ask your provider for copies of all your medical records.

E. Hire an experienced personal injury lawyer

It is crucially important that you hire someone to represent you who understands how to evaluate your claim and put forward your best case.

Summary of Florida Laws on Bicycles:

According to F.S. Section 316.2065, “Bicycle Regulation,” bicycles are treated as vehicles. Therefore cyclists have same rights and duties as do drivers other vehicles, such as: stopping at all stop signs and red lights, riding with flow of traffic, using lights at night, yielding right of way when entering a roadway, and yielding to pedestrians at cross walks. Additionally:

·        

  • You cannot carry passengers on a bicycle that is not intended to carry more than one person.

  • Your bicycle must have a fixed, regular seat for riding.

  • Parents must not allow minors to violate any of Florida’s provisions.

  • All bicycles must come equipped with a braking system.

  • If riding on the sidewalk, bicyclists have the same rights and duties as a pedestrian.

  • Bicycles must be equipped with a lamp when operating between sunset and sunrise.

  • Bicyclists must use the designated bicycle path when not traveling at the speed of other traffic.

  • Bicyclists can get out of the bicycle lane in anticipation of making a turn.

  • Other laws can be found here.

Damages in Florida personal injury cases

Injured individuals can request compensation for damages they’ve suffered, including medical expenses, pain and suffering, lost wages, and punitive damages, as applicable.

Statute of Limitations

The statute of limitations limits the time you can file a claim. Florida’s  statute of limitations for personal injury cases is four years from the date of injury, which  drops to two years if it is for wrongful death. If the claim is against the city, county or the state, there is a 180-day investigatory period and then a three-year statute of limitations (again, two years if it involves wrongful death).

If you have been injured in a bicycle accident, call Florida personal injury attorney John Clarke for a free consultation at (305)467-5560!

DEFECTIVE PRODUCTS

DEFECTIVE PRODUCTS

Imagine if the fuel tank of your car exploded during a collision with another vehicle.  Imagine if a medication that you took to cure digestive problems caused a deadly cancer.  Well, these scenarios actually occurred .  And it was largely through the effort of lawyers who sued the manufacturers for making defective products that the problems were exposed and corrected.

Elements of a Defective Product Case

Generally speaking, the law puts the burden on a manufacturer to produce a safe product. It  holds the manufacturer liable for all injuries that occur when the product is used as intended.  It doesn’t matter whether the manufacturer knew the product to be dangerous.  . The first element that a defective product plaintiff needs to prove is that the product was defective.

 

The law groups product defects into three categories: design, manufacturing, and marketing defects. Marketing defects occur when a product is advertised or sold for a dangerous purpose. Marketing defects  may include inadequate warnings.  Most of the cases against the tobacco industry in the last several decades fall into this category .  In these cases, The plaintiffs typically convinced courts that the tobacco companies had failed to warn consumers of the risks of smoking, and due to this failure, the consumers became chronic smokers and suffered illness and death as a result.

A design defect occurs when a product’s design makes it unreasonably dangerous. The gas tank in the Ford Pinto that I discussed above was defectively designed because it wasn’t insulated from the engine.

A manufacturing defect is a problem that occurs during the manufacturing process that makes the product unreasonably dangerous and to not conform to the intended design of the product.  This is often an issue with cars that have complicated supply chains where many different companies can supply parts. Often cars are recalled to fix manufacturing defects that cause safety problems.

 

The other elements that you would need to prove are:

  1. Loss. that you suffered an actual injury or financial loss as a result of using the manufacturer’s product.

  2. Cause. that the product’s defect caused your injury.

  3. Product used as intended. You must show that your injury occurred when you were using the product as the manufacturer intended it to be used.

 

Liable Parties

So who is liable if you are injured by a defective product? Florida law makes all parties in the chain of distribution of a defective product liable when the defect causes injury.   So, if you purchased a defective lawnmower at Home Depot that caused you an injury, you have the option of suing Home Depot the manufacturer or both for your injuries.  

Damages

In a defective products suit, you can recover compensation for:

  • Medical bills for treatment of injuries caused by the defective product

  • Lost income

  • Emotional distress resulting from the accident or injuries

  • Pain and suffering

  • Wrongful death if the defective product caused the death of a family member

Important Laws and Cases

Florida Statute Section 768.81 defines a product liability action.  West v. Caterpillar Tractor Co. , 336 So. 2d 80 (Fla. 1976) and Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015) are important cases in that they set forth the strict liability consumer expectation test for product design defects.

Defective products cases are often complex and  not what they initially seem.  When products turn out to be dangerous and cause injury that’s when you need a good defective products  lawyer on your side.

If you or a loved one have been injured by a dangerous product, call Fort Lauderdale personal injury lawyer John Clarke for a free consultation at (954) 556-8952..

Swimming Pools are Attractive Nuisances

Swimming Pools are Attractive Nuisances

    Florida’s Attractive Nuisance Doctrine provides that a property owner may be liable when a child wanders onto his property and gets injured by a dangerous condition. Attractive nuisance is a type of negligence that is based on a property owner’s liability to maintain his premises in a safe condition.

In general, an owner is liable for a child trespasser’s injury if :

(1)  he/she knows or has reason to know that the area where a dangerous condition exists can be trespassed by a child, 

(2)  the dangerous condition poses an unreasonable risk to a child’s safety, 

(3)  the child is too young to realize the risks associated with the dangerous condition,

 (4)  it is less of a burden to remove the danger than the risk posed to a child, and

 (5)  the owner fails to either remove the danger or protect the child from the risk of harm. 

  

      The following abandoned or discarded items are specifically declared to be attractive nuisances to children by Florida Statute Section 823.08 (because they have air-tight doors):

-Refrigerators

-Iceboxes   

-Washers

-Dryers

      The most dangerous attractive nuisance in the Sunshine State would be swimming pools.  Other potential attractive nuisances include lawn mowers, trampolines, and unstable or decrepit structures, such as tool sheds.

   It is important to note that an attractive nuisance must be a feature that is man-made (like a playground or pool).  A natural feature, such as a lake or a hill, is not an attractive nuisance, so a property owner does not have the same duty to protect children from potential injuries there.

  In addition to liability to trespassing children under the attractive nuisance law, a property owner owes all guests on his property a duty of care to maintain it in a safe condition.

 The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

  1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

  2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

  3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

  4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

If you have been injured in an accident, call personal injury attorney John Clarke today at (305)467-5560 for a free consultation!

 

Getting Paid for  Car Accident Injuries

Getting Paid for Car Accident Injuries

Florida law only requires drivers maintain minimal insurance to cover the costs of treating accident-related injuries.  There are several types of insurance which pay these expenses .  Pursuant to Florida’s no-fault insurance scheme , the primary insurance that pays for a vehicle owner/occupant’s injuries is his own personal protection insurance.  Once this coverage is exhausted, the the party that caused the accident, and his bodily injury insurance, becomes liable to pay the injured party’s medical bills.  Finally,  a vehicle owner may purchase uninsured motorist insurance to  that will pay for injuries caused by another driver when that driver is uninsured or underinsured.

 

Personal Injury Protection

Florida has a “no-fault” insurance scheme which requires all drivers to maintain personal injury protection insurance (PIP). This insurance is  designated by statute to be the primary payment source for automobile occupants’ injuries, and must be exhausted before other insurance coverages for bodily injury can be tapped.   Every owner and driver of an automobile carries a PIP policy that will be the first source of payment for injuries that he and his passengers (if they don’t have their own PIP policies) sustain in an accident, regardless of who is at fault.

Pursuant to Florida Statute § 627.736, the minimal coverage that a Personal Injury Protection policy must provide is $10,000 per eligible claimant.  Furthermore, it must cover at least 80% of the insured’s medical expenses, and 60% of his  lost wages.

Bodily Injury Liability Insurance

Bodily injury liability insurance pays for injuries to others that are caused by a vehicle owner/driver’s negligence  .  Florida law does not technically require drivers to  carry bodily injury liability insurance. However, there is a separate  law that states that a party who has been involved in a serious accident or found guilty of certain traffic-related offenses must prove that he is “financially responsible”, and this proof includes carrying bodily injury liability insurance of at least $10,000 per injured party and $20,000 per accident. For this reason alone, it is important that a driver maintain bodily injury liability coverage in these amounts.

There are several other good reasons to carry bodily injury liability insurance.  .  First, accidents are expensive. According to a 2013 study, the average auto  insurance claim for bodily injury in the United States was $15,443 and rising faster than the cost of living on a yearly basis.  This amount is significantly higher than Florida’s personal injury protection coverage limit of $10,000. If you cause an accident that results in injury to another driver, you will be personally liable for any medical bills of the injured party that insurance doesn’t pay.  Therefore, I recommend that a driver purchase at least $100,000 per person and $300,000 per crash of bodily injury insurance to protect himself from these financial risks.

Another reason to carry bodily injury coverage is that an insurer will require that you  have this coverage in place before it will sell you  uninsured motorist insurance. Uninsured motorist insurance  will  reimburse you for injuries sustained in an accident caused by another driver, when that driver lacks sufficient bodily injury insurance to cover them.  Since Florida law doesn’t require drivers to carry any bodily injury liability insurance , many do not.  So, it is frequently the case that drivers at fault in Florida accidents do not have insurance to cover injured parties .  Therefore, buying UM coverage is an important way that a Florida driver can insure his accident injury-related costs are reimbursed regardless of the other driver’s insurance status.

 

What Expenses will Bodily Injury Liability Insurance Cover?

Bodily injury liability insurance generally covers all economic damages for an accident victim’s injuries, including medical bills, lost wages, funeral expenses, and legal fees.  It will not, however, pay for special damages such as pain and suffering, loss of quality of life, and loss of consortium.

Can You Sue Another Driver Directly for Your Injuries?

Yes, vehicle operators have a duty of care to obey all traffic laws and drive with reasonable care. They can be sued if they negligently cause an accident that injures others.  An injured party will have to prove that the offending driver breached his duty of care, that the breach caused him injury, and the amount of damages he suffered as a result,  in order to win his lawsuit.

It is important, however, to consider a defendant’s financial resources before commencing a lawsuit.  Most people don’t have a lot of liquid assets to pay a potential judgment.   Moreover, Florida’s homestead law protects people’s homes from being sold to compel payment of debts such as judgments for personal injuries.  So, often it is not worth suing other drivers even when you can prove their negligence.

Florida law also restricts the damages that a party injured in an automobile accident may recover in lawsuit in an important way. Florida Statute § 627.737 exempts owners and occupants of vehicles who cause accident from liability to pay victims non economic damages (pain and suffering,  loss of enjoyment of life, punitive damages) unless the victim suffered a catastrophic injury. This statute defines a catastrophic injury as one which causes:

-significant and permanent loss of an important bodily function

-permanent injury

-death, or

-significant or permanent disfigurement or scarring.  

     This restriction sharply reduces the financial recovery of most parties injured in automobile accidents in Florida.

The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

  1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

  2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

  3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

  4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 

Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

Summary

In summary, the laws that govern insurance for injuries in automobile accidents in Florida are quite complicated.   Florida’s no-fault insurance scheme provides that an injured party must first claim against his own PIP policy before seeking recovery from other sources.  The law does not mandate drivers to carry enough insurance to cover the average cost of an automobile related injury.  Therefore,  all drivers should carry bodily injury liability and uninsured motorist insurance in order to financially protect themselves.

If you have been injured in an automobile accident, call personal injury attorney John Clarke at (954)556-8952 for a free consultation concerning your legal rights.

Recovering for Catastrophic Injuries

Recovering for Catastrophic Injuries

Catastrophic injuries are all too common in the sunshine state today.  Florida is a highly-urbanized state with an extensive and crowded highway system.   Catastrophic injuries, which by nature are severe and long-lasting, typically require extensive and expensive medical treatment. They often rob their victims of the ability to perform basic life functions and diminish their quality of life.  Besides causing physical and psychological impacts, catastrophic injuries can cause financial devastation.

For this reason, it is important for you to hire an experienced Florida personal injury attorney to fight for you in case you suffer such an injury.   

Definition of Catastrophic Injury

There is not a single, straightforward definition of “catastrophic injury” in Florida law.  Florida Statute Section 627.737 defines serious types of injuries incurred in automobile accidents for which a victim may recover for pain and suffering as follows:

(a) Significant and permanent loss of an important bodily function.

(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

(c) Significant and permanent scarring or disfigurement.

(d) Death.

 

Florida Statute Section 440.15, which deals with workers’ compensation for disability, considers a catastrophic work injury to include:

(a) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

(b) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

(c) Severe brain or closed-head injury.

(d) Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;  and

(e) Total or industrial blindness.

Accidents That Cause Catastrophic Injuries

Most common type of accidents that cause catastrophic injury include:

 

Proving Catastrophic Injury Cases

In order for you to prevail in a personal injury case, you need to prove that the Defendant’s negligence caused your injury.  Then you have to prove what damages you suffered as a result of this negligence.  In a catastrophic injury case, where the injury typically impacts all domains of the victim’s life,  damages can be very substantial.  It is important that you or your attorney understand all types of compensable damages that you may be eligible for in order for you to get maximal compensation. 

 The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

  1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

  2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

  3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

  4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

 If you or a loved one are injured in South Florida, contact Florida injury attorney John Clarke at  (954)556-8952 today for a free consultation!

 

Getting Paid for Pain and Suffering in a Personal Injury Lawsuit

Getting Paid for Pain and Suffering in a Personal Injury Lawsuit

   Often when one gets injured, the worst part of the experience is lingering pain.  For this reason, pain and suffering is a distinct category of damages that is compensable in a personal injury lawsuit.  Pain and suffering is a non-economic damage because it does not have a value attached to it.   Nonetheless, courts and insurance companies have developed methods to place a dollar value on it.

Multiplier Method

Insurers often approximate general damages, which include pain and suffering, by applying a multiplier to the out-of-pocket damages suffered by the victim. The first step would be to add up all the economic damages (which could include medical expenses, approximated future medical expenses, lost wages, loss of earning capacity, property damage, etc).  The next step would be to determine a multiplier between 1.5 and 5 to apply to the economic damages.  The severity of the injuries suffered by the victim should determine which multiplier is selected.   The resulting product should yield a grand total for the victim’s damages.

Specific factors that bear on the severity of the injuries:

-presence of permanent physical impairment

-psychological effects of the injuries

-the day to day pain experienced as a result of the accident

-inability to perform tasks of daily life

Sample Damage Calculation

Vanessa Victim is shopping at Walmart. She suddenly slips and falls on a wet floor, which results in severe knee and back injuries.  Despite surgery, her back is in chronic pain and the pain prevents her from playing tennis, her lifelong passion. The damages that flow from Vanessa’s injuries are calculated as follows:

Special damages (medical bills, lost wages, rehabilitation):              $100,000

Choice of multiplier – because Vanessa suffers loss of quality of life and pain, the multiplier is 4.5.

Total damages - $450,000

 Limitations to Pain and Suffering Damages in Florida

 Unfortunately, Florida law limits recovery for pain and suffering for personal injuries for automobile accidents.   Florida has a “no fault” auto insurance system.  This means that, for most auto accident claims, the victim can not sue the other driver, even if he is completely at fault.  Instead, the victim’s first source of payment would be his own personal injury protection (PIP) insurance policy that pays 80% of medical bills and 60% of loss of income up to a limit of $10,000. 

 

In order to recover directly from the at-fault driver for injuries, the victim must suffer a “serious injury”.  Florida law defines this term to encompass:

 ·         Significant and permanent loss of an important bodily function

 ·         Permanent injury within a reasonable degree of medical probability  

 ·         Significant and permanent scarring or disfigurement 

  Conclusion

            As you can see, estimating damages in a personal injury lawsuit is complicated and depends on many factors.   This is one reason why it is very important that you use an experienced personal injury lawyer to maximize your recovery.  Call Florida personal injury attorney John Clarke is you have been injured at (305)467-5560.  You never pay a fee unless he recovers for you.

Rental Car Accidents

Rental Car Accidents

 

What to Do If You Have an Accident in a Rental Car

If you are involved in a car accident in a rental car, you should take the following steps to protect yourself:

1.  Seek medical treatment for the injured parties.

2.  Report the accident to the police.

3.  Obtain contact information of the other parties involved in the accident and take pictures.

4.  Notify your insurance company.

5.  Notify the rental car company.

As is the case with car accidents in general, the party that caused the accident  has liability for injuries and property damage. For this reason, it is important to get the insurance information for all parties involved in the accident.

The twist with rental cars is that Florida law generally allows rental car companies to avoid liability for damage when the party who rents the vehicle gets into an accident.  Even if you did not cause the crash, your contract with the rental car provider makes you financially liable for damage to the vehicle.

How the Insurance Process Works in a Rental Car Accident

Florida law requires every driver to have a $10,000 personal injury protection policy to cover injuries and property damage.  This policy will generally pay out first in a car accident, regardless of who is at fault.  The at-fault party is responsible to pay for additional damages and injuries once this policy is exhausted.

If someone else’s negligence caused the accident, contact a personal injury lawyer to help you pursue a claim for compensation.

What Role Does Personal Injury Protection Play in a Rental Car Accident?

Florida requires all personal vehicle owners to carry Personal Injury Protection coverage. PIP coverage generally pays for the damage to the rental car and covers 80 percent of your medical bills and lost wages up to $10,000. The deductible must be paid out of pocket.

The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

  1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

  2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

  3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

  4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

How is Negligence in a Rental Car Accident Determined?

Negligence means that a party was not doing what he was supposed to do.   In car accidents, the law looks at how the parties behaved and assigns blame to the party who was negligent. 

For example, if a driver runs a red light and collides with a car that has the right of way, this driver is negligent.

If the other driver’s negligence caused the accident, you first seek coverage from your PIP policy, as stated above.  Once PIP is exhausted, you can submit a claim to the at-fault driver’s auto insurance company to compensate you for your injuries and property damage.

If you were the cause of the accident, or no one is legally to blame,  you and your auto insurance are liable for the damages.

If you do not have personal auto insurance, you may have to purchase coverage from the rental car company. You cannot legally rent a vehicle in Florida without having insurance.

Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

Does the Rental Car Company Ever Have Liability in an Accident?

As stated, the car rental company generally avoids liability for accidents under Florida law.   Exceptions apply, however.

If the rental car company was negligent in maintaining the car, and this negligence caused the accident, then the company is liable for the damages to the other vehicle and injuries sustained by its driver.  However, you may still be held liable for damages to the  rental car pursuant to the rental contract you signed with the rental car company.

Also, most rental car companies offer insurance coverage to consumers.    This coverage generally shifts liability to the rental car companies for damage caused in an accident, and is mandatory for consumers who do not have their own auto insurance.  For consumers who already have auto insurance, this insurance is usually not necessary nor cost-effective.  However, it may supplement your  auto insurance coverage in certain situations.  Policies offered vary, so it is important to check the fine print to determine what is and is not covered.

 

Credit Card Insurance 

Many credit cards offer some form of free rental car insurance to a consumer who pays for the rental car with the credit card, typically for damage to or theft of the rental car.  This insurance usually kicks in after your personal auto insurance pays. This secondary coverage is potentially valuable as it may reimburse you for your auto insurance deductible.

Also, some  credit cards offer primary coverage for rental cars , meaning it pays out first, so it is important to check with your credit card issuer on the applicable insurance for rental cars. 

 

How a Personal Injury Lawyer Can Help You

If you have been injured in a rental car accident, a  personal injury lawyer help you to enforce your rights.   A lawyer can help you obtain key evidence to prove your case.  Also, he can contact the at-fault party’s insurance company on your behalf and ensure that it pays the damages for which it is liable.  John Clarke is an experienced personal injury lawyer who handles rental car accident cases.   Call (954) 556-8952 today for a free consultation with John Clarke!

 

 

 

 

Electric Scooter Accidents

Electric Scooter Accidents


 

            Two wheeled electric scooters for standing riders have become extremely popular in many Florida cities.   They allow tourists to explore the sites of its cities and beaches on their own terms, and also are becoming an important mode of transportation for those who lack cars or driver’s licenses. Recently, several scooter sharing services, such as Bolt, Byrd, and Lime, have set up shop in Florida cities.  These services will rent a scooter to an adult who downloads their free app,  meets the criteria of the user agreement (varies by vendor), and pays the rental fee.  As a result, the number of scooters zipping around the sidewalks and streets of Florida has increased dramatically.  Unfortunately, a tide of serious injuries involving scooter riders has accompanied this phenomenon.  

 

        If you have been injured while riding an electric scooter, contact personal injury lawyer John Clarke to find out what your legal rights are.    Call (954) 556-8952 today!

Regulation of Standing Scooters

Under federal law, standing scooters are considered consumer products, not motor vehicles.  Therefore, these devices are not regulated by the National Highway Traffic Safety Administration. 

A. Florida Law

Florida Statute section 316.2068 regulates the use of standing scooters in the sunshine state.   It provides, in pertinent part that a standing scooter:

·         May be operated on a road or street where the posted speed limit is 25 miles per hour or less

·         May be operated on a marked bicycle path

·         May be operated on a sidewalk, if the person operating the device yields the right-of-way to pedestrians and signals to pedestrians before passing them.

·         A standing scooter need not be registered and insured. 

·         A person under the age of 16 may not operate a standing scooter unless he wears a bicycle helmet and other safety gear

·         A county or city may regulate the operation of standing scooters for safety purposes.

In summary, Florida’s regulation of standing scooters is minimal from a safety perspective.   The state statute grants individual cities discretion to regulate or ban these devices based upon a determination of the safety of their use within the local environment.

 

B.  Legal Status of Standing Scooters in South Florida

Fort Lauderdale – in November 2018, the city passed an ordinance permitting standing scooters to be used on sidewalks by when rented from a licensed vendor.

Hollywood – in February 2019, the city passed an ordinance that imposes a blanket ban on the use of standing scooters, citing safety concerns. 

Miami Beach – banned as of May 2018

Miami -laws in flux

 

 

Who can be held liable when you are injured while riding a standing scooter?    

The first step to determine liability for your injury is to find the cause of the accident.  Sometimes a scooter driver is injured due to a collision with a motor vehicle, while other times the injury is caused by a mechanical problem or an obstacle.   John Clarke’s legal team will investigate your accident and determine how to get maximum compensation for your injuries.  

 

The Driver of a Motor Vehicle Played a Role in the Accident

Often motor vehicles hit riders on scooters.    If the motor vehicle driver hits a scooter because he is not paying attention to his surroundings or driving at an excessive speed, he may be held liable for the rider’s injuries due to his negligent conduct.  You may be able to recover damages from the driver’s insurance company.    

The Manufacturer or the Company that Leased the Scooter to You, or Both

If the standing scooter malfunctioned or failed to perform as designed and this fact played a role in your accident, you may be able to recover against the manufacturer, the vendor, or both parties.

The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

  1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

  2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

  3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law

How Much Can You Recover For Your Scooter Accident?

 Depending on the facts of your case and the nature of your injuries, you may be entitled to the following damages:

  • Medical treatment

  • Lost wages and benefits

  • Personal property damage

  • Pain and suffering

  • Permanent injuries

  • Wrongful death (if your relative died in the accident)

Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

 

Call personal injury lawyer John Clarke if you have been injured in a segway accident!

If you have been injured in a segway accident, contact an experienced personal injury lawyer like John Clarke immediately.    Remember that you will need evidence in order to prove your case.  Our team will get to work immediately to help you gather the evidence required and put your best case forward.   Call John Clarke today at (954) 556-8952 for a free consultation!  

 

John Clarke is a Fort Lauderdale personal injury lawyer.  John Clarke is also a personal injury attorney in Miami, Palm Beach, and Hollywood who handles Segway accident cases.

 

 

 

 

 

 

 

 

 

Motor Cycle Accidents in Florida

Motor Cycle Accidents in Florida

Florida is famous as a destination for motorcycle enthusiasts. From the sands of Daytona Beach to the long stretches of interstate 75 that traverse the Big Cypress Swamp, the Sunshine State offers breathtaking riding experiences. 

While riding a motorcycle can be a thrill, a motorcycle rider is extremely vulnerable to injury when his vehicle is involved in a collision. In 2017, Florida had 504 motorcycle related fatalities, the second highest of any state.  According to the  National Highway Traffic Safety Administration (NHTSA),  per vehicle miles traveled, motorcyclists are  28 times more likely than people in passenger cars to die in a traffic crash.

A strange discrepancy in Florida law is the fact that Motorcyclists are not afforded general PIP Coverage and Benefits which insurers must provide automobile drivers.

Due to that fact, it is essential that you have adequate elected coverage to protect yourself in case of a motorcycle accident. Insurance companies offer different choices as to medical coverage for a motorcycle rider, and they are often very confusing. I offer a free consultation to review your policy and determine  your policy and coverages.

 

Florida Does Not Have a Mandatory Helmet Law

Studies on motorcycle accident fatalities done by the NHTSA show that helmets are 37% effective in preventing death.

In spite of the safety enhancement afforded by helmets,  the Florida legislature repealed the mandatory helmet law of 2000.

Florida Statutes section 316.211 provides that a motor cycle rider or driver may ride without a helmet provided he maintains an insurance policy that provides at least $10,000 of medical benefits for injuries sustained in a motor cycle accident.  

Suing for Accident-Related Injuries

A plaintiff injured in a motor cycle accident has the burden to show by the greater weight of the evidence that the defendant was at fault in order to recover for his injuries. 

Most motor vehicle accident cases are grounded in the negligence theory of liability.   In order to prove his case, the negligence plaintiff must prove that:

A.   The defendant driver owed him a duty of care.

B.    The defendant driver breached this duty of care.

C.    The defendant driver’s breach caused the plaintiff to suffer injury.

D.   The plaintiff’s injuries resulted in compensable damages.  

 Comparative Negligence

 Florida law provides for the apportionment of damages between the defendant and plaintiff in a personal injury case based on the fault of each party.  This means that if you sue another driver for your injuries and the court finds that you played some role in causing the accident, the court is required to determine the percentage of fault of each party.   The court is also required to reduce the damages you recover from the defendant by the percentage of your fault.

 

 

If you are involved in a motorcycle accident in Florida, your rights as an injured party are immediately at stake. Do not speak with any insurance company until you have had an opportunity to speak with an attorney. Remember, our law firm offers extensive legal advice concerning your accident and your options.

Florida Car Accident Law

Florida Car Accident Law

Motor vehicle accidents are one of the most common causes of serious injuries as well as fatalities in Florida. According to The Florida Department of Motor Vehicles, there were 402, 385 crashes on the state’s roads in 2017. These crashes caused 254,310 injuries and 3,116 fatalities. As Florida’s population continues to grow, the number of crashes each year has risen. Motor vehicle accident deaths exceed firearm fatalities in the sunshine state.

Recovering for Your Injuries

For those injured in a Florida automobile accident there are several ways of recovering damages. Florida’s personal injury protection scheme requires each driver’s insurer to provide a personal injury protection policy to pay up to $10,000 for personal injuries caused by other drivers. An injured party must claim against this policy first as a source of payment for treatment of his injuries and lost wages. He may collect from the at-fault driver’s insurance company for damage sustained by his vehicle in the accident. Many cautious consumers have also purchased uninsured motorist coverage from their own insurer, which pays for their property damage when the at-fault motorist lacks insurance.

In a personal injury lawsuit, a successful plaintiff may collect economic damages as well as non-economic damages. Economic damages include costs of medical treatment of his injuries, lost wages, loss of future income, and property damage. Non-economic damages include pain and suffering, loss of enjoyment of life, and, loss of consortium for the injured party’s spouse. If the accident was the result of egregious or intentional behavior of the at-fault party, the court may also award the plaintiff punitive damages.

Limitation on Damages for Motor Vehicle Accidents

The seriously injured party’s biggest potential source of recovery, however, is to sue the at-fault party for negligence. In Florida, however, an injured motorists right to sue are quite limited. In exchange for the personal injury protection policy guarantee of payment for medical claims, Florida law allows injured drivers and passengers to sue for only the most serious personal injuries. The permanency requirement of Florida Statute section 627.737 provides that a driver may sue to recover damages sustained in a car accident (both economic and non-economic) only if the plaintiff has suffered death or serious bodily injury (such as significant scarring and permanent physical impairment).

Proving Your Case

A plaintiff injured in a car accident has the burden to show by the greater weight of the evidence that the defendant was negligent in order to recover for his injuries.

Most motor vehicle accident cases are grounded in the negligence theory of liability. In order to prove his case, the negligence plaintiff must show that:

A. The defendant driver owed him a duty of care.

B. The defendant driver breached this duty of care.

C. The defendant driver’s breach caused the plaintiff to suffer injury.

D. The plaintiff’s injuries resulted in compensable damages (in Florida, this means a significant injury or death).

Comparative Negligence

Florida law provides for the apportionment of damages between the defendant and plaintiff in a personal injury case based on the fault of each party. This means that if you sue another driver for your injuries and the court finds that you played some role in causing those injuries, the court will reduce the damages you recover from the defendant by the percentage of fault that is attributed to you.

As you can see, getting compensation for Florida motor vehicle accident injuries can be challenging. For this reason it is important that you consult with an experienced personal injury attorney if you have been injured in a car accident.

Contact John Clarke today at (954) 556-8952 if you have been injured in an accident for a free consultation!