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The judge plays several roles in a Florida personal injury trial. Among a judge’s most important job is to determine which evidence the jury is permitted to consider in coming to its decision. When preparing for trial, parties gather all the evidence they hope to use to support their case. However, not all evidence is admissible for every purpose. Some evidence is categorically prohibited, and other evidence is admissible for limited purposes. The judge decides what evidence the jury will be able to consider, and for what purposes. In making these decisions, judges must follow the Florida Rules of Evidence.

In a recent Florida slip and fall case, the court had occasion to discuss what is called the “best evidence rule.” Under Florida Statutes section 90.954, “except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.” Thus, under the rule, if the evidence is a writing, recording, or photograph, only the original source of that evidence can be submitted. In the case mentioned above, the evidence at issue was video surveillance tape from the grocery store where the plaintiff slipped and fell.

Under the best evidence rule, the original source of the evidence is required unless:

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Earlier this year, the Centers for Medicare & Medicaid Services (CMS) updated its consumer accessible nursing home rating tool. The new system was designed to provide consumers and their loved ones with readily available and comprehensive information regarding nursing home quality and care. As the rate of Florida nursing home abuse cases continues to rise, the Nursing Home Compare website is a necessary and crucial tool for consumers. The site provides each nursing home with a rating score between 1 and 5, and additional ratings in regards to the nursing home’s inspections, staff qualifications, and quality measures. This tool helps people understand how Florida nursing homes perform on health and fire inspections, how well they care for their residents, and whether they have any history of abuse towards patients.

This tool is especially important because nursing home abuse statistics indicate that close to 5 million older adults suffer abuse each year and that almost 25% of nursing home residents reported experiencing at least one instance of abuse. This does not account for the many older people that cannot articulate or recall details surrounding their abuse.

Nursing home abuse generally occurs when the caregiver intentionally harms a resident. This type of abuse often includes physical and sexual assaults. Whereas nursing home neglect usually occurs when the resident receives inferior or substandard care. This includes failing to address or prevent a resident’s medical concerns, to provide an adequate amount of food or hygiene products, or verbally abusing a resident. Many residents are unable to adequately report their abuse due to cognitive difficulties, speech impairments, or because they do not have anyone to whom they can report the abuse. However, family members and loved ones should be aware of certain changes that may indicate that abuse is occurring. For example, malnutrition, bedsores, and behavioral changes may point to abuse or neglect.

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Recently, an appellate court issued an opinion addressing the presumption of negligence in a Florida rear-end accident. At issue was whether a defendant appropriately rebutted the presumption of negligence when he rear-ended the plaintiff’s car. The accident occurred when a driver in front of the plaintiff suddenly braked their vehicle at a green light. The plaintiff and defendant both applied their brakes. The plaintiff avoided colliding with the car in front of her, but the defendant did not stop in time and subsequently rear-ended the plaintiff. The plaintiff filed a personal injury lawsuit against the defendant based on the damages she suffered as a result of the rear-ending. A jury ruled in the defendant’s favor finding that he was not negligent. The plaintiff appealed the court’s denial of her motion for a directed verdict.

Parties in a civil personal injury lawsuit can make a motion for a directed verdict after the close of evidence before a jury renders their ruling. This occurs when one party believes that the opposing party did not prove their case as a matter of law. Under Florida law, rear-end accidents create a rebuttable presumption that the at-fault driver was negligent.

To rebut the presumption of negligence, the rear-end driver must present evidence or explanation that refutes a fact in the case. Typically, in Florida rear-end accident cases, a defendant can rebut a presumption under four circumstances. These situations include, if the rear-end driver’s car had a mechanical failure; if the in-front driver suddenly stopped; if the in-front driver suddenly changed lanes; and if the in-front driver illegally or improperly stopped. However, presumptions based on sudden stops require additional factors because drivers have a duty to remain alert. If the defendant does not appropriately rebut the presumption, a plaintiff is entitled to a directed verdict in their favor.

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Over the past few years, and ever since the popularity of bike shares has taken off, scooter shares have begun to crop up across the country. A Florida scooter share is a system by which users can rent electric scooters on a short-term basis. Most of the scooters are electric and dockless, meaning that they can be left anywhere. Thus, the scooters can be tracked by GPS, and users looking for a nearby scooter can use an app to search for a nearby scooter. For some, electric scooters are a great way to get around and enjoy the city; however, Florida scooter accidents have dramatically increased since scooter shares have come into existence.

As of earlier this year, there were scooter shares in Miami, Fort Lauderdale, Orlando, and Tampa. However, the companies that operate scooter-share are constantly looking for new opportunities. Many cities are reluctant to allow scooter shares, for fear of an increase in the number of serious scooter accidents. Most of the concerns surrounding scooter shares relate to the fact that inexperienced riders are able to take motorized vehicles out on the road with no training or supervision. Some have also raised the concern that the lightweight scooters could get picked up in the heavy winds of a hurricane, turning them into “flying menaces.”

Recently, cities across Florida have started to implement scooter-share bans. In fact, in a recent state appellate court decision, Panama City, Florida passed a law prohibiting the use of overnight scooter rentals. Because the dockless nature of the scooters allowed them to be left essentially anywhere in the city, this had the effect of preventing a scooter-share from opening. The company intending on opening up the scooter-share filed an appeal, and the city’s law was upheld. The court noted that the city had the right to pass the law “when the undisputed facts demonstrate that the restriction is for the safety of the city’s citizens and visitors.”

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In many Florida personal injury cases, more than one party is to blame. Even a plaintiff may share the blame in causing an accident. In these cases, Florida law applies the doctrine of comparative negligence. Under the doctrine of comparative negligence, liability is apportioned depending on the percentage that each party is at fault, as determined by the fact finder (a judge or a jury). That means that if a jury finds that a party is 60 percent at fault and another is 40 percent at fault, each party will be liable for the plaintiff’s damages according to their respective percentage of fault.

This is true also for the plaintiff. Under the doctrine of pure comparative of negligence, and under Florida Statute 768.81(2), even if a plaintiff is found to be mostly at fault, the plaintiff can still recover compensation from other at-fault parties. That is, if a plaintiff is found partially at fault, a plaintiff’s recovery will not be barred entirely, but the compensation owed to the plaintiff will be reduced according to the plaintiff’s percentage of fault.

A defendant may also try to blame an accident on a non-party—a person or an entity that is not a party to the lawsuit. In that case, to allocate fault to a non-party, a defendant may plead the fault of the non-party, and must identify the non-party or describe the non-party as precisely as possible. A defendant must generally identify a non-party at fault by motion or in the initial responsive pleading in the lawsuit when the defendant asserts its defenses. At trial, the defendant must then prove that the non-party was at fault in causing the plaintiff’s injuries by a preponderance of the evidence. A fact finder must then apportion the negligence of the defendant and the negligence of the plaintiff and any other non-parties, ultimately calculating the defendant’s liability. Importantly, when a defendant can shift fault to a non-party, a plaintiff will not typically be able to file another complaint against that party. Thus, it is critical to investigate all potentially liable parties and name them from the outset.

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Distracted driving has become an increasing concern with the widespread use of cell phones for everything from talking to navigation to texting. There are about one thousand Florida car accidents each week caused by distracted driving. Florida is seeking to change that, in part through the state’s Wireless Communications While Driving Law, which took effect earlier this year. Under section 316.306 of Florida Statutes, drivers cannot drive while “manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device” or while sending or reading information “for the purpose of nonvoice interpersonal communication,” such as texting or emailing. Section 316.306 took effect on October 1st of this year. Under that section, drivers cannot drive while “using a wireless communications device in a handheld manner” in school zones or work zones. Drivers will be given a warning for violations under section 316.306 until the end of the year, but can be cited for violations starting on January 1, 2020.

The law was enacted in order to improve safety on Florida roads, to prevent crashes, to reduce injuries and associated costs, and to allow law enforcement officers to issue citations to drivers who are texting while driving. There are some exceptions under the law, such as when reporting an emergency and when receiving messages that are related to navigating the motor vehicle.

Florida is trying to reduce incidents of distracted driving through its campaign entitled “Put It Down: Focus on Driving.” Distracted driving can be anything that takes a driver’s eyes off the road (visual), hands off the wheel (manual), or mind off driving (cognitive). However, the Florida Department of Highway Safety and Motor Vehicles notes that texting is particularly dangerous, because it requires all three types of distraction (visual, manual, and cognitive). The Department’s 2018 statistics showed there were more than 52,000 distracted driving crashes in Florida that year, which amounts to over 1,000 per week. Florida drivers have to drive carefully and prudently, and drivers who fail to do so and cause personal injuries or property damage can be held liable.

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Although most drivers do their best to drive carefully and safely to avoid accidents, automobile collisions are still unfortunately quite common. These accidents can cause incredibly costly injuries, and many times drivers rely on insurance companies to cover these costs. In Florida, drivers have the option to buy uninsured motorist coverage from their insurance provider. This coverage specifically protects drivers if they get into an accident with an uninsured driver who, because of their lack of insurance, does not have the funds to cover the resulting injuries. This coverage is optional in Florida, but many drivers choose to purchase it to protect themselves and their loved ones in the case of an accident with an uninsured driver.

In a recent case, a Florida Appellate court considered whether or not an accident occurring in a mobile gym located in the back of a truck is covered under an auto insurance policy that includes this type of uninsured motorist coverage. According to the court’s written opinion, the client was injured when she was training in a mobile gym. The owners of the gym installed workout equipment in the back of a truck, which they would drive to various locations and then use in training sessions with clients while parked. The plaintiff was training in the gym when she suffered permanent injuries, allegedly from her trainer’s negligence. She brought suit against the trainer and the gym owners, and those suits were settled.

However, the plaintiff also brought suit against her insurance company, arguing that the mobile gym was an “uninsured auto” under her policy, which provided coverage for injuries caused by accidents with the owner or operator of “an uninsured auto arising out of the ownership, maintenance, or use of that auto.” Her insurance company filed for summary judgment, which was granted in the lower court. The plaintiff then appealed.

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For many families, childbirth is a joyous occasion filled with excited anticipation of finally meeting their new child. However, in too many cases, the negligence of a medical provider can turn these joyous occasions into devastation. Negligent Florida medical providers may be liable for the injuries caused by their conduct. Data indicate that almost 30,000 babies are born each year with a birth injury. Additionally, many people are not aware that Florida ranks in the top five states with the highest rates of medical malpractice cases.

Birth injuries can affect both mothers and children, and they often result from negligent actions by medical professionals. Many birth injuries occur because a medical professional fails to follow delivery room procedures, improperly monitors the mother or child, incorrectly doses the mother, improperly uses forceps during delivery, or delays a necessary cesarean section procedure. These actions often cause spinal cord injuries, paralysis, brain damage, or cerebral palsy. Families who want to seek compensation for these complications must be aware of the Florida statute of limitations to avoid dismissal.

Recently, a Florida appellate court issued an opinion stemming from a medical malpractice lawsuit based on a child’s birth injury. In that case, a new mother was told that her newborn needed to be hospitalized after birth because of an infection. After discharge, the woman began to see signs of developmental delays. For over a year, the woman sought medical opinions regarding her child’s condition, but she was largely dismissed by medical providers. Finally, the woman requested the hospital’s medical records, and a specialist indicated that her child likely had spastic cerebral palsy, which often occurs because of a lack of oxygen during delivery. The woman filed a lawsuit against the hospital, and the hospital moved to dismiss the case based on the statute of limitations.

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Florida patients rely on safe, accurate, and prompt laboratory results when they obtain treatment or preventative care for a medical condition. When a laboratory error occurs during the administration or interpretation of lab results, Florida patients may suffer long-lasting and severe injuries. The hospitals and laboratories responsible for these errors may face liability for the injuries through a medical malpractice lawsuit.

Florida patients who suffer harm because of a laboratory error may bring various types of claims against multiple parties. Responsible parties may include the person who obtained the lab sample or conducted the test, the medical professional who read and communicated the results, and any manufacturers that designed faulty testing equipment.

Medical technicians, phlebotomists, radiologists, nurses, physicians, and other professionals involved in the chain of laboratory testing may be liable for laboratory errors. Hospitals and medical facilities are responsible for ensuring that their personnel have adequate training in the job that they are hired to do. This includes making sure that staff know how to safely obtain results, run samples, and interpret the results. Injuries can arise when a medical professional unsafely takes a blood sample, waits too long to run a sample, tests for incorrect conditions, or inaccurately reports the findings.

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Losing a loved one in a Florida car accident is never easy, but it can be especially difficult when the accident could have easily been prevented. This is particularly true for victims of drunk or otherwise intoxicated driving. Although it is against the law to drive while under the influence of alcohol or other drugs, intoxicated driving remains one of the leading causes of Florida car accidents.

Earlier this month, a tragic car accident in Key Biscayne killed one and injured another, and law enforcement officers believe that the at-fault driver had been drunk while on the road. According to a local news report covering the accident, the at-fault driver was driving on the Rickenbacker Causeway when she rear-ended another car. As a result, this second car went over the median, rolled several times, and slammed into a chain-link fence. The occupants, a husband and wife, were seriously harmed. Both were taken immediately to the nearest hospital, where the wife, who had been driving when the tragic accident occurred, died from her injuries.

The at-fault driver failed multiple sobriety tests at the scene of the crash. When, three hours after the crash, she took a Breathalyzer test, it indicated that she had been driving with twice the legal limit of alcohol in her system. As a result, she has been charged with driving under the influence, vehicular homicide, and DUI manslaughter. These charges could come with fines and jail time.

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