Prescribed Fire Liability

The State of Florida is the highest user of prescribed fires in the U.S., and its ecosystems are dependent on it. Prescribed fires not only reduce hazards to life and property that are associated with wildfires, they also control vegetation and invasive pests, and increase the habitat for many endangered species in the region. Prescribed fires are, however, not without their own distinct hazards, and the Florida Legislature has set forth extensive statutory requirements that regulate their use.

Rules for Safe Burning

Under Florida Statute § 590.125, the Florida Forest Service (FFS) is charged with adopting rules for the responsible use of prescribed burning. These include:

  • Obtaining a written prescription for the burn
  • Having a certified burn manager on site
  • Obtaining a burn permit
  • Specific consent of the landowner
  • Adequate firebreaks and personnel

Burning authorization is required for all agricultural, silvicultural, landclearing, pile and acreage burning.  Burning authorization from the FSS is not required to burn yard waste, but if the fire spreads, the person conducting the burn may be liable for any resulting damage and must pay for the costs of suppression.

Note that there are numerous administrative rules and local ordinances for prescribed burning, with more restrictions on noncertified burners than on certified ones (for example, noncertified burners have more limited time restrictions and lower dispersion indices).  In all cases, open burning is not permitted if it poses a risk of reducing visibility on public roads to less than 1,000 feet or where the fire or the smoke threatens public health, safety or property.

Protection for Certified Burners

FFS certified fire practitioners are generally protected from liability under Florida law if the burn is in the public interest and the burn does not constitute a private or public nuisance under state air pollution laws.  Neither the property owner nor his/her certified agent can be held liable for any damage or injury caused by the fire or the resulting smoke unless you can prove gross negligence.

Note that the FFS is not liable for any damage caused by burns that it has authorized.

Motorist Responsibilities

Under §392.14 of the Federal Motor Carrier Safety Regulations, drivers are responsible for exercising extreme caution when operating a motor vehicle in hazardous conditions, and for finding a safe place to pull over if driving conditions are too dangerous.  In January of 2012, ten people lost their lives due to impaired visibility from a fire, and the Department of Highway Safety and Motor Vehicles reported that driver behavior – including failure to slow down, stopping in the middle of the road, and alcohol use – contributed to the pileup.

Tough Cases Require Tough Representation

These are tough cases which require representation by experienced lawyers with ready access to a team of investigators and experts in the field.  To obtain maximum compensation, be certain to retain the services of an aggressive law firm with lawyers who have an in depth knowledge of Florida’s laws, administrative rules and local regulations concerning prescribed fires.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

 

The Effect of a Recall on your Product Liability Claim

Graco recently recalled 3.7 million child car seats and the U.S. government has requested the recall of another 1.8 million, in one of the biggest car seat recalls in U.S. history. Although the defect does not affect the ability of the seat to restrain a child in the event of an accident, it may be difficult or impossible to unlatch the child in the event of an emergency.

No injuries have been reported as a result of the Graco defect, and the company has been wise to respond to the issue promptly. Consumers, however, should not be misled into thinking that a recall means that a company is no longer responsible for injuries sustained after its announcement is made—a product recall does not in any way affect the ability of a person to sue for injuries sustained before, during or after the recall.

Nor does it guarantee a successful lawsuit.

Recalls Do Not Create Automatic Liability or Immunity for Manufacturers

The major issue in a products liability case concerning a product that has been recalled is whether or not the recall can be cited as evidence. Some courts disallow evidence of a recall, concerned that it may make a jury prejudiced and that the jury members will not look seriously enough at the other evidence—this has been the case in some of the recent “Google Mistrials”. Others allow evidence of a recall in certain circumstances to establish the harmful nature of the product or to show that the manufacturer was aware of the defect that caused the injury.

Recall evidence is generally permitted to:

  • Show that a recall was involuntary or was otherwise controlled by another party
  • Demonstrate the feasibility of an alternative design or precautionary measure
  • Impeach a witness

In any event, to win a products liability case, you have to prove that the particular product that you were using was defective and that that particular defect was the cause of your injuries. A defendant may be able to exclude evidence of a recall if it is not deemed relevant under the Federal Rules of Evidence.

Get the Money You Deserve

Although a recall is no guarantee of success or failure in a products liability lawsuit, it does show the existence of a large-scale problem of which the manufacturer is aware. If you have been financial or physically harmed by a defective product, a consultation with an experienced products liability attorney is highly advisable to assure that you get the money you deserve.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

Accident Recovery: Future Damages for Promising Student Athletes

In 2010, one of our clients was involved in a major auto accident in Palm Beach County in which she sustained severe injuries to her wrist and lower extremities.  Multiple surgeries were partially successful, but she sustained extensive and permanent nerve damage and will require an ankle fusion sometime in the future. Before the accident, she was a gifted athlete and had received a scholarship to play college softball. Her insurance carrier refused to tender the minimal insurance limits and we sued on her behalf—she now has the funds to pay for all her medical needs for the rest of her life.

Compensation for the Career That Will Never Be

Professor Richard T. Karcher of Florida Coastal School of Law aptly describes the challenges plaintiffs face in their attempts to recover damages for the lost earning capacity of injured athletes. First, the plaintiff must prove that the wrongful conduct of the defendant was in fact the cause of the plaintiff’s lost chance or opportunity to earn future income as an athlete. Second, the plaintiff must prove the amount of loss sustained to a reasonable degree of certainty.

These cases center on whether or not the plaintiff has brought forth sufficient evidence to demonstrate that he or she has lost the ability to pursue (or continue to pursue) a professional sports career due to the defendant’s conduct. An amateur athlete pursuing a loss of chance case doesn’t need to prove that they would have been a professional athlete, only that they have lost that opportunity. This is generally shown via a highly fact-intensive inquiry into the likelihood of the plaintiff’s chances at a professional sports career, and whether that chance has now been lost or reduced due to the defendant’s actions.  Evidence must be presented of awards and other achievements that demonstrate the extent of the plaintiff’s athletic skills and physical attributes, as well as expert testimony as to the plaintiff’s athletic prowess before they were injured.

Determining Earning Potential

The second part of the test, the Earning Potential Range (EPR) calculation, takes into account:

  • The athlete’s history of professional earnings;
  • The average earnings of similarly positioned players;
  • The actual earnings of comparable players; and
  • The average length of a professional career in the plaintiff’s chosen sport (including the plaintiff’s position in that sport).

The high end of the EPR consists of star veteran players at the top of the wage scale and young professionals (even those earning a minimal salary) who have an excellent track record. On the low end are the promising young amateurs—although with excellent legal representation these individuals can still hope to receive compensation reflecting their lost potential.

Experienced and Caring Representation

If you are a young athlete who has been in an auto accident, your recovery is more challenging than most—on many levels.  While you heal your physical and emotional wounds, make sure that you receive the compensation you are entitled to through experienced and caring representation from a law firm with an excellent track record in financial recovery for athletes.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

The Pros and Cons of Class Action Lawsuits

In 2011, the Florida Department of Agriculture was ordered to pay nearly $14 million, plus interest, to more than 40,000 Palm Beach County homeowners as compensation for the destruction of more than 66,000 healthy residential citrus trees in the area.  This was one of many class action lawsuits filed throughout the state during the Department of Agriculture’s “War on Citrus Canker” which took place nearly a decade ago.

When Can You File a Class Action Lawsuit?

Under Rule 23 of the Federal Rules of Civil Procedure, a class action may be filed if there are multiple plaintiffs with common legal or factual issues, the class is so large that joinder of all its members would be impracticable, and the representative parties have claims that are typical to those of the rest of the class and can fairly and adequately protect the interests of that class.

Under 28 U.S.C.A. §1332(d)(2), the federal district courts have original jurisdiction of civil actions that exceed $5,000,000 in value, and where any member of the class of plaintiffs is from a state different than that of the defendant or where the defendant is from a foreign state or is a foreign state.

Advantages and Disadvantages of a Class Action

The advantages of a class action lawsuit include:

  • Lower costs of litigation – The expenses are shared among the class members who pay nothing up front and even then only if the lawyer is able to settle on their behalf or wins at trial.
  • Stronger position – The very nature of a large group of people with a similar claim leads to a stronger negotiating position, the reason so many of these cases settle out of court.
  • Suspension of the Statute of Limitations – Plaintiffs are given more time to join the lawsuit (provided they have not opted out) as opposed to the strict limitations for individual claims.
  • Chance for all plaintiffs to collect damages, even for a small amount – Most plaintiffs do not find it prudent to sue for a small amount, and many defendants cannot pay high damages  to multiple plaintiffs; a class action lawsuit assures that everyone who joins gets a piece of the settlement, and payouts are more predictable and manageable for defendants.
  • More uniformity in payouts – More certainty for defendants under the ruling of a single judge means more consistent payouts for plaintiffs.
  • Judicial efficiency – One case in one court means less court time with fewer judges.

The disadvantages of a class action include:

  • Lack of control – Only the representative parties have decision-making power to settle and to make other important decisions regarding the lawsuit.
  • They take time – Resolution of these types of claims typically take longer than the usual tort claim due to their procedural complexities.
  • Limited forms of compensation – Compensation is generally limited to financial damages and rebates; a plaintiff seeking another form of relief may not be satisfied.
  • No ability to make a private claim – If the class action is unsuccessful, the individual members of the class may not bring claims of their own at a later time.

For more information about class actions and other mass tort lawsuits, contact a law firm with a solid record of experience and successful litigation in this highly complex area of the law.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

Beware of Mismanaged Medications

The Daytona Beach Health and Rehabilitation Center has again been cited for a medication error, this time for a giving a patient double the medication he was supposed to take.  One of the Center’s previous citations was for giving a medication to the wrong resident.

Unfortunately, these kinds of mistakes are not limited to the Daytona Beach Health and Rehabilitation Center.  The Centers for Medicaid and Medicare Services and the U.S. Department of Health and Human Services’ Office of Inspector General, for instance, have reported extraordinarily high rates of medication errors in nursing homes, the vast majority of which could be prevented with computerized tracking systems that most nursing homes cannot afford.

For this reason, it is crucial that nursing home residents and their loved ones be extra vigilant in identifying and preventing medication errors, and following through on all suspected cases of medication mismanagement.

Common medication errors

The following are regarded as the most common (and preventable) medication errors:

  • Wrong prescription.  Failing to take down a thorough patient medical history, including possible allergies, may make an otherwise effective drug into a harmful or even deadly poison. Patients must learn to be proactive with their doctors, and never hesitate to volunteer information that is not solicited.
  • Wrong drug—Flomax or Volmax. Alora or Aldara. Foltx or Folex. Mirapex or Miralax. Many drugs have similar names and confusion can be deadly. Even the most experienced physician or pharmacist can make a mistake. Similar looking bottles and illegible prescriptions hardly help matters.
  • Wrong dosage—Patients should always verify the dosage with their doctor and pharmacist to make sure that the prescription is correct and that the prescription bottle matches what was prescribed.
  • Wrong patient—Nursing homes and other facilities that house numerous people on a variety of medications should have safeguards in place to prevent medication mix-ups.
  • Miscommunication—The failure to convey important medical history, notes, records and other information has become increasingly common, particularly where a doctor is managing a high volume of patients and/or where the patient is seeing a variety of specialists. A diligent attorney will analyze every aspect of a patient’s case, including doctor-patient communication and correspondence between the medical professionals in charge of their care.

Attorneys able to handle complicated cases

Attorneys who handle medical malpractice claims must be experienced in identifying these issues, as well as handling complicated investigations, discovery and court procedures. They must also have in-depth knowledge of standard hospital and physician practice and know how to analyze medical records. Many specialized medical malpractice firms such as ours also have medical professionals on staff who provide invaluable services in this area.

There are strict deadlines for medical malpractice claims, so time is of the essence.  Contact an experienced medical malpractice lawyer as soon as you suspect that you have a potential claim.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

$70 Million NCAA Concussion Settlement for College Athletes

As part of an agreement to settle several consolidated class action head-injury lawsuits filed by its former players, the NCAA is paying $70 million for a medical monitoring program that will include medical testing and evaluation of current and former NCAA athletes who believe that they may have suffered concussion-caused brain trauma.

Positive findings will enable all athletes who qualify as a member of the class (all competitors for NCAA schools, including athletes who are not part of the current lawsuit) and whose testing indicates that they suffer from concussion-related brain trauma, to sue the NCAA and the school where they played.

Who qualifies for the testing and what does it entail?

Athletes who have engaged in the following sports qualify for testing:

  • Football
  • Hockey
  • Basketball
  • Wrestling
  • Soccer
  • Field Hockey

This is very detailed, specialized and expensive testing that involves a day or two with physicians, radiologists and neurologists.  The NCAA is covering all costs. Read more

Risk Factors for Child Auto Accident Injury and Death

A new Florida law has just raised the age for child restraint device use in motor vehicles.  Once a child outgrows their infant car seat, they must ride either in a larger seat with a 5-point harness or a booster seat—until their sixth birthday. Under the previous law, only children under the age of three were required to use a car seat.

Under Florida Statutes §316.613, a seat belt alone is sufficient for a 4 or 5 year old if the child:

  • Is being transported by someone not in his or her immediate family
  • Is being transported in a chauffeur-driven vehicle if the operator and the vehicle are being compensated for this service
  • Is being transported in a medical emergency
  • Has a medical condition, as evidenced by documentation from a health care professional, that necessitates an exception the general rule

Child restraint devices are not required on school buses, public buses, farm tractors, trucks weighing more than 26,000 pounds, motorcycles, mopeds and bicycles.

The CDC cites the failure to buckle up, drunk driving and incorrect use of child restraint devices as the greatest risk factors in child auto accident injury and death.

Failure to buckle up

A significant number of children who have died in car crashes in recent years were not buckled up – 25% of infants under the age of 1, one-third of 1-7 year-olds, and 45% of 8-12 year-olds may well have survived if they had been property restrained.

Drunk driving

Approximately 20% of passenger deaths among children under the age of 15 were the fault of someone driving under the influence; 65% of those children were passengers in the car with the drunk driver.

Incorrect use of child restraint devices

If a child restraint device is used incorrectly, for example, where a rear-facing seat is placed in front of an airbag or is otherwise improperly secured, the rate of child injury or death increases substantially.  Note that improper installation due a confusing instruction manual may be grounds for a products liability lawsuit.

Defective car seat deaths

In recent years, defective car seats have injured or killed children due to:

  • Poor construction
  • Harness, latch and handle defects
  • Use of flammable materials
  • Separation of infant carrier from the base
  • Overall manufacturer neglect and/or failure to meet industry standards and regulations

Consumers can search for all child car seat recalls, complaints and investigations online at safercar.gov, a website sponsored by the National Highway Traffic Safety Administration.

If your child has been injured or killed in a Florida car accident, contact an experienced auto accident attorney immediately.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

Vehicle Defects That May Lead To Big Wins Or Settlements

Since 1968, our firm has handled thousands of cases involving vehicle defects.  Following are the types of defects that we have found often lead to big wins in court, or substantial settlements:

Unintended Acceleration

Beginning in 2009, Toyota began receiving complaints that some of its cars were accelerating on their own, causing auto accidents that resulted in injury and death. In 2012, Toyota settled hundreds of these lawsuits for more than $1 billion, the largest settlement of its kind.

Rollover Accidents

Our firm assists many solo practitioners and small firms with matters of this nature, such as:

These very complicated cases rely heavily on the testimony of experts to determine whether the accident was caused by driver error or defective design (e.g., vehicle center of gravity too high).

 

Roof Collapse

The reason so many motorcyclists are seriously injured in accidents is because they have no frame to brace them on impact. For case studies, see:

  • Death from positional asphyxiation as a result of roof collapse
  • Woman paralyzed in accident following roll down embankment

Most of us prefer to drive cars, which are supposed to provide this protection. A defective roof may result in devastating injuries, particularly in the case of a rollover accident. Individual settlements of these cases may be in the millions, particularly if a spinal cord injury is sustained.

 

Defective Seat Belts

There are two collisions in an auto accident –vehicle impact first, and then impact of the driver and passengers with the vehicle (or outside the vehicle in case of ejection). The purpose of a seatbelt is to minimize the damage of the second impact. Cases involving latch failure, torn webbing, spooling belt and anchoring systems failures may settle in the millions, particularly where the victim has suffered a spinal cord injury or death.

Defective Child Restraint Systems

A car seat with structural defects or that otherwise fails to comply with The Federal Motor Vehicle Safety Standard 213 can be deadly. Even a seemingly minor defect such as a release latch that gets stuck has warranted a massive recall by Graco to prevent potential injury and death of infants who may not be easily unharnessed in an emergency.

Defective Airbags

Defective airbags may fail to deploy, deploy too soon, or deploy when they shouldn’t, causing injury. The driver may lose control of the vehicle and/or may be injured by the airbag itself. Many individuals have suffered fractures, contusions, concussions and eye damage, for example, as a result of defective airbags. In 2013, a Virginia family was awarded $14 million when a side airbag in their vehicle failed to deploy, leaving their teenage son brain damaged.

Tire Blowouts

Tire blowouts cause an estimated 23,000 accidents and 535 deaths each year. While most of these blowouts are caused by old, punctured, or overinflated tires, many result from manufacturing and structural defects. For case studies, see:

Expensive and highly complex cases require large firm representation

Defective product auto accident cases are very expensive and highly complex. For these reasons a successful claim often depends on representation by a large, well-staffed law firm that is prepared to go up against major automobile manufacturers and other large companies.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

How a Catastrophic Injury Can Turn Into a Potential Products Liability Class Action Suit

Although school busses are widely acknowledged to be among the safest vehicles on the road, this is no consolation for the family of Aaron Beauchamp or for the more than 50 other children who over the past 11 years have been killed while riding a school bus. Thankfully for these families and all those with children riding school buses, the products liability class action lawsuit developing around the Beauchamp tragedy seeks to prevent dangerous school buses from continuing to operate.

The Birth of a Products Liability Class Action

A nine-year-old boy is killed in a Florida school bus accident.  The driver is sued for negligence. The attorney then discovers that a metal screw from the child’s seatbelt had come loose during the crash, and determines that the seatbelt latch was defective. Further research is done. The lawyer discovers that only a few weeks before, an 11 year-old girl was killed in a similar crash in New Jersey. The lawyer then learns that the bus manufacturing industry and the government knew 30 years ago that there was a problem with the seats on school busses and did nothing. The lawsuit is amended and becomes a products liability class action – now with the goal of affecting widespread change in the industry.

A product liability class action (a type of “mass tort”) generally begins with the identification of a product defect and an analysis as to whether the problem is singular or indicative of a pattern in all identical or similar products. If the defect which led to the injury or damage is not unique, it is assumed that there exist other consumers with the same issue. At this point, the class of consumers (the “putative class”) is defined—this includes, but is not limited to identifying its size, demographics, concerns and overall behavior.

In most cases, despite the similarity in damages from a specific product or type of product, each victim’s harm is so individualized that it is difficult or impossible to bring their cases together.  This has been the reason that many asbestos-related diseases such as mesothelioma, asbestosis and other asbestos-related cancers are usually handled on a case-by-case basis. However, where there is an ascertainable group that shares a commonality of interests and who stand to benefit by consolidating their claims into a collective lawsuit, a class action is usually most prudent for everyone.

Protecting Consumers from Negligent Corporations

Not all lawyers and law firms are able to handle the expense and vigor of a mass tort. These types of lawsuits are far more complicated than the average claim and do not follow the procedures typical of most lawsuits. If you believe your case might be better served as a class action or other mass tort, contact a firm with experience and an excellent track record with these types of cases to determine the best course of action.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.

Florida Traffic Accident Statistics Show a Surge in Crashes

The Florida Department of Highway Safety and Motor Vehicles reports that approximately 2,400 people die in Florida crashes each year – 6 or 7 lives lost on average per day.  While many of the more than 200,000 crash investigations are accidents, many others are the result of reckless and negligent behavior behind the wheel.

August 2014 has already seen its fair share of bizarre traffic accidents: On August 7th, a Hialeah teenager who was walking in the Northbound lanes of the Florida Turnpike south of Griffin Road was struck from behind and killed. That same day, a man was hospitalized in a hit-and-run in Delray Beach—witnesses managed to get the license plate number of a Lantana woman who at first claimed that she had hit a mailbox.

Has there really been an increase in Florida crashes lately?

On July 1, 2012, an amendment to Florida Statute 316.066 came into effect, requiring law enforcement agencies to report additional crash data to the Department of Highway Safety and Motor Vehicles. The additional data makes it appear as if there has been a statewide upsurge in crashes, while in fact the state has seen a steady decrease in accidents and road fatalities since 2005.

The 2012 Florida Traffic Crash Statistics Report, published by the Florida Department of Highway Safety and Motor Vehicles, indicates that in 2012:

  • There were 281,340 traffic accidents, involving 468,470 drivers
  • There were 2,430 auto accident fatalities and 198,032 injuries
  • 9,867 of these auto accidents were confirmed to be alcohol-related, and another 10,824 were suspected to be alcohol or drug-related
  • 473 pedestrians were killed in crashes and another 7,413 were injured
  • 116 bicyclists were killed and another 6,058 were injured
  • 457 motorcyclists and their passengers were killed and another 8,648 were injured
  • 12% of Florida crashes involved teenage drivers

What causes most Florida car accidents?

Unsurprisingly, most fatal Florida accidents are caused by the following:

  • Drunk driving, which claims over 1,000 lives every year
  • Reckless driving, defined by Florida Statutes Section 316.192 as any willful or wanton disregard for the safety of persons or property
  • Distracted driving, including texting and other cell phone use
  • Failure to yield the right of way
  • Failure to keep in the proper lane

If you have been in an auto accident, you are most likely facing huge medical bills, lost earnings and mental anguish. Injured par ties and the families of those killed in auto accidents may be entitled to monetary compensation.  Contact a West Palm Beach auto accident firm as soon as possible to assure that evidence is promptly gathered and preserved for your benefit.

If you have any questions on this blog or need information on other personal injury queries, please call the Law offices of Lytal, Reiter, Smith, Ivey & Fronrath located in West Palm Beach at 1-800 4-RIGHTS  (1-800- 474-4487)  We welcome your call and look forward to helping you.