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December 9, 2016

Davis v. Baez – School Bus Driver Liability for Student Injury

School districts across Florida – and the country – are responsible for ensuring the safe transportation of millions of students to and from class each day. In so doing, these districts, contractors and employers assume a duty of care to students to take reasonable measures to protect the safety and well-being of these minors. In some cases, that involves not just the transportation that occurs to and from school, but also for the planning and protections in place at designated bus stops and while children board or disembark from buses.

Recently, an appellate court in Florida decided in Davis v. Baez that an injured student may proceed with her lawsuit against a school bus driver. The driver reportedly insisted student and her brother cross a busy, dark road before school to be waiting on the opposite side of the street – where the bus stop was located – when he arrived. He informed the students if they weren’t waiting at the stop on the east side of the street when he got there, he would leave without them. There were several problems with this, the first being that such protocol was against school policy, which dictated that students who needed to cross a busy street to get to their stop should wait for the bus, so the driver could activate the flashing lights and “STOP” arm and allow children to more safely cross. The driver, who worked for a transportation company contracted by the school district, conceded he had given the children this instruction, despite knowing it was against district policy.

As it turned out, this was district policy for good reason. One morning as the 18-year-old high school senior crossed the dark street from the west side to the east side with her younger brother, a car can speeding past and struck her. The incident occurred around 5:50 a.m. The bus had not yet arrived at the time of the incident. Plaintiff suffered severe injuries. Continue reading

October 9, 2016

Murphy v. Roth – Juror Social Media Use Scrutinized

by Hollander Law Firm

American users of smartphones (which is almost everyone at this point) are rarely without these devices. According to Mashable Tech, the average person spends about three hours daily socializing on social network applications on their mobile devices – which is more than twice the amount of time they spend eating. Indeed, every passing thought – even mundane life experiences – have become the subject of user engagement on Facebook, Twitter, Snapchat and others. So it’s not at all surprising that jurors are tempted to post about the experience as it’s happening. After all, they do it with every other element in life. iphone1

The problem is that it can conflict with the constitutional right of parties in a lawsuit or criminal case to receive a trial by a jury that is both fair and impartial. Part of that means only considering the evidence presented to them in court. But when social media feedback and information on the case is readily available at their fingertips, some jurors find the temptation too much to avoid. The U.S. Supreme Court held in the 1982 case of Smith v. Phillips that it’s virtually impossible to shield jurors from every possible influence or contact that could theoretically affect their vote. Still, prejudicial influences and occurrences need to be prevented whenever possible. When they do occur, courts need to carefully examine the effect on the case and whether either party was deprived of fair proceedings as a result, which could be grounds for a new trial.

Florida’s Fourth District Court of Appeal recently grappled with this very issue in Murphy v. Roth, a personal injury lawsuit filed after a car accident involving plaintiff and defendant. Continue reading

August 23, 2016

Liability Waiver Overcome With Evidence of Gross Negligence

by Hollander Law Firm

A growing number of organizations are requiring a signature on liability waivers before allowing folks to participate. On one hand, these documents are supposed to help patrons stay informed of the possible risks. The problem is, people rarely read them – or read them thoroughly – and the details in the fine print are often the most critical.

Although these waivers – which are essentially contracts – are often upheld by courts, they can be successfully challenged on a number of grounds. One could argue the waiver didn’t fully outline the exact risks. One might also argue that the waiver was inherently unfair. It’s possible to say the language was unclear or ambiguous. One could also argue gross negligence. splash

While waivers of liability can insulate organizations from liability for acts of negligence – which is an absence of reasonable care – they cannot insulate from gross negligence. The latter occurs when there is failure to use even the slightest amount of care. It is when a person deliberately disregards someone else’s safety by an act or omission they knew or should have known was going to put someone in danger. This was the allegation in the recent case of Steinberg v. Sahara Sam’s, weighed by the New Jersey Supreme Court. Continue reading

February 14, 2016

Marshalls of M.A. v. Witter – Florida Slip-and-Fall Lawsuit Evidence Weighed

by Hollander Law Firm

Florida slip-and-fall plaintiffs suing a business for injuries have to show the defendant had actual or constructive knowledge of the substance in question. wetfloor1

Actual knowledge means defendant was actually on notice about that particular hazardous condition. Constructive knowledge means they should have known about it, either because it was a condition that occurred with regularity or it existed for such a length of time defendant would have discovered it in the course of using reasonable care.

Most of these cases rely on assertions of constructive knowledge. There are many ways plaintiffs can prove this, including by request of internal memos, work logs, time sheets, surveillance video or other elements tending to show this was a regular problem or defense didn’t use reasonable care to routinely examine the site. Continue reading

December 8, 2015

Meher et al v. FIFA et al – Class Action Soccer Injury Lawsuit Results in Rule Changes

by Hollander Law Firm

Plaintiffs in a proposed class action injury lawsuit scored a major goal in an action targeting the U.S. Soccer Federal, Federation Internationale de Football Association (FIFA), the U.S. Youth Soccer Association Inc., National Association of Competitive Soccer Clubs Inc., California Youth Soccer Association and the American Youth Soccer Organization.

The New York Times reported that as part of an effort to resolve the Meher et al v. FIFA et al litigation, it would impose a series of safety initiatives specifically aimed at reducing head injuries for players – particularly women and children. The policy would set strict limits on young players, expressly banning participants under the age of 10 from “heading” the ball. Players between the ages of 11 and 13 will be required to significantly reduce the number of “headers” they can take on in practice.

Regulations will be required for all U.S. Soccer youth national academies and teams – which will include Major League Soccer Youth clubs. However, the rules will remain “recommendations” for development programs and other soccer associations that under the control of U.S. Soccer.

December 2, 2015

$11 Million Damage Award for Faulty Hip Replacement, In re: Wright Medical Technology Inc., Conserve Hip Implant Products Liability Litigation

by Hollander Law Firm

A federal jury in Atlanta awarded $11 million to plaintiff in the first bellwhether trial in a multidistrict litigation against Wright Medical Technology, Inc. for purportedly defective metal hip implants.

Not only was the device found to be defective, but jurors concluded the company deceived patients and doctors concerning the safety of these devices. The verdict In re: Wright Medical Technology Inc., Conserve Hip Implant Products Liability Litigation, includes $1 million in compensatory damages to plaintiff, plus another $10 million in punitive damages against defendant. Punitive damages are allowed in cases where there is evidence of gross negligence by a defendant, where the conduct is found to be so egregious that defendant was so reckless or wanting in care it amounted to a conscious indifference or disregard to the rights, safety and lives of others.

Plaintiff in this particular case was one of 2,000 who has thus far filed a complaint against the company and subsequently entered a tolling agreement.

November 14, 2015

Stephens v. CSX Transportation – Retrial Ordered in Train Accident That Caused Teen Brain Injury

by Hollander Law Firm

The South Carolina Supreme Court has ordered a new trial in the case of Stephens v. CSX Transportation, where the grandfather of a 12-year-old girl who suffered severe and permanent brain injuries in a train accident is suing the railroad company.

Her mother was behind the wheel at the time the train collided with the vehicle, wherein teen was a rear seat passenger. It would later be revealed the mother was under the influence of alcohol, cough syrup and a muscle relaxer.

However, mother insists she wasn’t intoxicated. Although she stopped at the “stop line” prior to crossing the tracks, she said she neither heard nor saw the train before proceeding. There was no gate or flashing lights at this particular crossing. As she started to cross the tracks, that was the first mother saw of the train. She tried to accelerate off the tracks, but it was too late. She and her boyfriend, a front seat passenger, were seriously injured, but not as badly as her daughter, who will suffer severe cognitive, behavioral and physical disabilities the rest of her life as a result.

October 8, 2015

Galanis v. CMA Management – Premises Liability Lawsuit Following Homicide

by Hollander Law Firm

In the event of a violent crime, victims or surviving family members may be left emotionally shattered and unsure of what to do next. In cases where the attacker is identified and arrested, that case will move through the criminal justice system, which may sometimes offer victims restitution.

However, there may be a possibility to hold the accused – as well as other third parties – responsible in civil court. In the recent case of Galanis v. CMA Management, before the Mississippi Supreme Court, representatives for the estate of a man murdered by his roommate took action against the apartment complex where he resided, alleging failure to warn of the attacker’s known violent tendencies.

Initially, a trial court judge ruled that a “resident concern form” that described the attacker’s violent intent toward a previous roommate was not sufficient to create a genuine issue of material fact as to whether the management for the apartment complex was aware of the tenant’s violent nature – and thus had a duty to warn his new roommate. On review by the state supreme court, that ruling was reversed and the case will now proceed to trial.

May 25, 2015

Sanford v. Lawler – Dram Shop Liability Lawsuit Weighed

by Hollander Law Firm

The dram shop liability law in Florida, as codified in F.S. 768.125, limits liability against establishments for serving alcohol when those who consume the drinks go on to injure others. That injury most typically includes drunk driving, but it could mean other types of damages that occur as a result of that person’s intoxication. The circumstances in Florida under which a bar or restaurant could be held accountable are only when drinks are sold/furnished to minors or those with a known addiction to alcohol.

Other states have dram shop laws that are considerably broader.

But no matter where a case takes place, there may be legal disputes regarding the technical interpretations of the language in dram shop laws.

May 18, 2015

Dukane Precast Inc. v. Perez – $70k Work Safety Violation Fine Upheld

by Hollander Law Firm

A concrete products company that failed to take a number of appropriate safety measures when one of its workers became trapped in a sand bin will pay $70,000 in fines to the Occupational Safety & Health Administration, following a decision by the U.S. Court of Appeals for the Seventh Circuit.

Court records in Dukane Precast Inc. v. Perez detail a troubling scenario in which not only was the well-being of the trapped worker jeopardized, but so too was the safety of several workers who climbed into the bin to try to dig him out.

Although the worker survived, he sustained severe injuries below the waist due to the pressure of the sand on his body for more than five hours.