Florida Judicial College Phase II - Personal Injury Claims Overview
"Learn about personal injury claims from judicial experts in Phase II of the Florida Judicial College. Explore legal elements, defenses, ruling methods, and specific topics like automobile negligence, general negligence, statutory violations, and more. Gain insights into negligence laws, traffic control, and court procedures through engaging presentations and case discussions."
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Presentation Transcript
Florida Judicial College Phase II March 2023 Personal Injury Claims: An Overview PRESENTED BY: BRUCE ANDERSON, CIRCUIT JUDGE, 4THJUDICIAL CIRCUIT GINA BEOVIDES, CIRCUIT JUDGE, 11THJUDICIAL CIRCUIT KEATHAN FRINK, CIRCUIT JUDGE, 17THJUDICIAL CIRCUIT
As a result of attending this course, the participant will be able to: 1) Identify legal elements in commonly litigated personal injury claims; 2) Discuss various defenses in commonly litigated personal injury claims; and 3) Develop methods for ruling on issues in personal injury claims.
CLAIMS GENERAL NEGLIGENCE STATUTORY VIOLATIONS REAR-END COLLISIONS NEGLIGENT ENTRUSTMENT VICARIOUS LIABILITY
GENERAL NEGLIGENCE Duty Breach Proximate Cause Damages
UNIFORM TRAFFIC CONTROL LAWS Prima Facie Evidence Negligence Jury Instruction Traffic Tickets
7 At trial on automobile negligence claim, Plaintiff s attorney asked the Defendant during cross examination whether the Defendant was given a ticket. Plaintiff objects and Defendant responds: It s just a question, I m not moving the ticket in evidence. Raise your paddles: Green = Sustained; Red = overruled
8 Sustained: Evidence of traffic citation is inadmissible. Vantran Indus v. Ryder Truck Rental, 890 So.2d 421 (1st DCA 2004)
REAR-END CRASH Negligence Per Se?
NEGLIGENT ENTRUSTMENT
VICARIOUS LIABILITY 1. Not an Independent Contractor and 2. Acting Within Scope Employment
AGENT or CONTRACTOR Control over means of accomplishing the task instead of the outcome of the task. Villazon v. Prudential Health Care Plan, 843 So. 2d 842, (Fla. 2003).
AUTO INSURANCE Florida Motor Vehicle No- Fault Law Fla. Stat. 627.730 to 627.7405 Personal Injury Protection
AUTO INSURANCE Collateral Source Rule Evidentiary issues Damages
AUTO INSURANCE UM/UIM Coverage 627.727(1) All defenses available to UM carrier
DUTY Possession and Control Legal Title and Ownership not required Right to Control Access by 3rd Parties
INVITEES Enters Land to Conduct Business with Owner Mutual Benefit Test Duty to Keep Premises in Reasonably Safe Condition Duty to Warn of Latend Dangers
TRESPASSERS No Liability Under Influence of Drugs or Alcohol No Liability Unless: Invitation, Discovered Trespassers Liable or Gross Negligence or Intentional Misconduct
Conditions Creating Claims Natural Conditions Uneven Floors Foreign Transitory Substances 768.0755 (2010)
DEFENSES Open & Obvious Conditions Plaintiff must prove actual or constructive knowledge of foreign transitory substance
22 CLAIMS AGAINST THE GOVERNMENT
GOVERNMENT LIABILITY Fla. Stat. 768.28 Waiver of Sovereign Immunity Tort claims for property, personal injury and death.
GOVERNMENT LIABILITY Fla. Stat. 768.28 Strictly construed any waiver ofsovereign immunitymust be clear and unequivocal, and, therefore, waiver will not be found as a product of inference or implication. Am. Home Assurance Co. v. Nat l R.R. Passenger Corp. 908 So.2d 459 (Fla. 2005)
GOVERNMENT LIABILITY Tortious conduct of officer, employees or agents. Acting within scope of employment No immunity for acts of bad faith, malice or willful and wanton disregard
PRESUIT NOTICE ABC Roofers has sued the local School Board for breach of contract alleging it failed to pay for roofing work performed on 10 of its schools. The School Board moves to dismiss the complaint arguing it does not allege ABC complied with the 768.28 by providing presuit notice. Grant or Deny the Motion?
PRESUIT NOTICE WRITTEN PRESUIT NOTICE CONDITION PRECEDENT PRESUIT NOTICE NOT REQUIRED: INVERSE CONDEMNATION BREACH CONTRACT FEDERAL/FLORIDA CIVIL RIGHTS CLAIMS
PRESUIT NOTICE The Plaintiff in a slip and fall action that occurred at City Hall has rested her case. The City has moved for directed verdict arguing Plaintiff failed to offer evidence she provided the City with written notice prior to filing suit. Grant or Deny the Motion?
GOVERNMENT LIABILITY Discretionary or ministerial, that is the question! Trianon Park Condominium Ass n, Inc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985)
DISCRETIONARY OR OPERATIONAL Four Part Test: 1. Government Policy Act or Decision; 2. Act essential to accomplish policy or program; 3. Act require policy evaluation, judgment of government; 4. Government agency have requisite authority and duty to do or make challenged act?
DUTY Trianon Park Condo v. City of Hialeah Category I No Duty Exists Category II Public Duty Doctrine Category III Duty to Reasonably or Operate Category IV Liability for Professional, Educational, Healthcare Services
Chapter 766 766.203 Presuit Investigation Claimant and Defendant must determine grounds for claim and deny claim. Expert opinions subject to discovery
Agency Relationships 1. Acknowlegement 2. Acceptance 3. Control
Apparent Authority 1. Representation 2. Reliance by Plaintiff 3. Change position by plaintiff
Standard of Care 1. 766.102 2. Expert testimony 3. Violation of Customs 4. Violation of its own standards
CAUSATION More Likely Than Not Fla. Std. Jury Inst. 402.6(a)
DEFENSES Comparative Negligence Concurring Cause Intervening Cause Aggravation
WRONGFUL DEATH Fla. Stat. 768.16 768.26 Florida s Wrongful Death Act
Parties Mark dies as a result of a car accident. Mark s wife, Nora, is the administrator of the estate. Mark s daughter, Tina, filed a wrongful death action. Defense moves to dismiss for lack of standing. Grant or Deny the Motion?
Parties 768.18 Survivors Personal Representative Administrative Ad Litem Fla. R. Civ. P. 1.260
Claimants In Nora s wrongful death claim on behalf of Mark, the named survivors are Nora, his daughters and his son from a one-time affair named Scott that no one really talked about and that Mark never supported. Defense moves for summary judgment on Scott s claim. Grant or Deny?
CLAIMANT 768.18 Survivors Spouse Children Parents as Survivors of Children
Compensatory Damages Award money that will fairly and adequately compensate for loss, injury or damage, including damage reasonably certain to incur in the future
Personal Injury & Property D Non-Economic Medical Expenses Lost Earnings Others: Spousal Parental Unmarried Dependent Property Damage
Motor Vehicle No Fault Permanency Loss of bodily function Scarring or disfigurement Permanent to reasonable degree of medical certainty
Wrongful Death Different Elements for: Estate Survivors Those paying expenses
Boarding Publishing Medical Bills Collateral Sources & Medicare
Misc Apportionment: Liability v. Damages Aggravation or Activation Mortality Tables Present Value
