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Southwest Florida Injury Lawyer Blog

Court Explains Grounds for Severing Parental Rights in Florida

Published on: February 28, 2022 | Lusk, Drasites & Tolisano, P.A.

Typically, the Florida courts attempt to preserve the relationship between children and their parents. They will not do so if it could harm the child, though, and if a court determines that a parent engages in behavior that is detrimental to a child, it may sever the parent’s rights. In a recent ruling, a Florida court explained the grounds for terminating parental rights in a matter in which the mother appealed a trial court’s ruling that her parental rights should be severed. If you need assistance protecting your parental rights, it is essential to hire a dedicated Cape Coral child custody lawyer to assist you.

The Factual Background

It is alleged that the mother had three children. The father of the two younger children sexually assaulted the oldest child, after which his rights were severed. Further, he was barred from coming within 500 feet of the mother’s house or contacting the children, pursuant to an injunction issued by the trial court.

It is reported that the oldest daughter woke up one evening and found the father attacking the mother. She tried to stop the assault, and the father hit and choked her. The Department of Children and Families (DCF) later determined that the father regularly visited the mother’s home, thereby violating the injunction. As such, DCF argued that the mother engaged in abhorrent conduct and moved to sever the mother’s parental rights. During a hearing on the issue, the mother conceded that she never ended her relationship with the father. Additionally, the evidence showed that he was regularly in the mother’s house. Thus, the court severed the mother’s rights. She then appealed. Continue reading ›

Florida Court Discusses Vicarious Liability for Car Accidents

Published on: February 24, 2022 | Lusk, Drasites & Tolisano, P.A.

In Florida, a person that lends their car to another driver may generally be held vicariously liable for any injuries the driver causes while using the vehicle. There are some exceptions to the general rule, though. For example, pursuant to a law referred to as the Graves Amendment, parties that maintain a business that sells or leases cars will not be held responsible for harm that arises out of the sale or lease of one of their vehicles in most cases. The Graves Amendment and the evidence a party must produce to show that it applies were the topic of an opinion recently delivered by a Florida court. If you suffered harm in a car crash, you might be owed damages, and you should meet with a trusted Cape Coral car accident attorney as soon as possible.

The Subject Accident

Allegedly, the driver went to the defendant’s car dealership to drop off his wife’s car for service. The defendant loaned him a vehicle to use until the wife’s car was ready. It was unclear whether the defendant required the driver to complete a rental agreement. A week later, the driver caused a car crash that resulted in the plaintiff suffering substantial harm. She filed a vicarious liability claim against the defendant, arguing that it should be held accountable for the driver’s carelessness. The defendant filed a motion for summary judgment, arguing that it could not be held liable as a matter of law because it was immune under the Graves Amendment.

The Terms of the Graves Amendment

The Graves Amendment prevents certain parties from being held vicariously liable under Florida’s dangerous instrumentality doctrine. Specifically, it states that a party that engages in the business of leasing or renting cars and subsequently loans or rents a car to an individual will not be deemed liable for injuries that arise out of the individual’s operation or possession of the car, as long as the party did not engage in criminal wrongdoing or negligence. Continue reading ›

Florida Court Discusses Pre-Emptive Juror Challenges in a Truck Accident Case

Published on: February 20, 2022 | Lusk, Drasites & Tolisano, P.A.

Many civil litigants choose to try their cases before a judge rather than a jury. As such, they must select jurors before the trial. Part of jury selection involves assessing whether any prospective juror is implicitly or explicitly biased and lacks the ability to come to an objective decision. If a prospective juror demonstrates bias, either party may exercise pre-emptive challenges to prevent them from becoming a juror. The right to exercise pre-emptive challenge is critical, and if a court neglects to uphold a party’s right, it could result in an unjust verdict. This was demonstrated recently in a verdict issued in a Florida case arising out of a truck collision. If you were hurt in a crash with a tractor-trailer, it is smart to meet with a Cape Coral truck accident lawyer about your options for seeking damages.

Historical Background of the Case

It is alleged that the decedent was driving through a construction zone on a highway behind the defendant driver. The defendant driver suddenly veered into the opposite lane of travel where the defendant trucker was approaching and struck the side of the truck. This caused the truck to swerve and collide with the decedent’s car. The defendant suffered fatal harm in the accident. His wife then filed negligence claims against the defendants.

Reportedly, during the process of selecting a jury, the plaintiff attempted to challenge a prospective juror who stated her husband had worked as a trucker. The court denied the plaintiff’s challenge on the grounds that the jury was the only Black member of the panel, and the court found that the plaintiff had not met Florida’s race-neutral test. The plaintiff objected again prior to trial, but the court upheld its decision. The jury issued a verdict in favor of the plaintiff but determined that the defendant trucker was not at fault. The plaintiff then moved for a new trial, and the court granted her request. The defendants appealed. Continue reading ›

Court Discusses Judgment Awards Under Florida’s Wrongful Death Act

Published on: February 14, 2022 | Lusk, Drasites & Tolisano, P.A.

When people lose someone that they love in a collision, they often develop emotional distress and mental health issues. In recognition of the emotional harm often caused by fatal crashes, the Florida legislature enacted statutes allowing surviving family members to recover compensation for the pain and suffering they endured due to the loss from the party that caused the deadly accident. The damages award is determined, in part, by the surviving party’s life expectancy. Thus, if the survivor dies before a verdict is issued, no damages are owed. This was illustrated in an opinion recently issued by a Florida court in a case in which it reduced a $5 million damage award to nothing after the surviving party died before the judgment was final. If you suffered the loss of a loved one due to a car crash caused by someone else’s negligence, you may be owed damages, and you should consult a Cape Coral car accident attorney to assess your rights.

Facts of the Case

Allegedly, the decedent was killed in a fatal collision. The accident occurred on a road adjacent to the defendant’s travel center. The plaintiff then instituted a wrongful death lawsuit against the defendant. The jury issued a verdict in favor of the plaintiff, granting her $5 million in compensation for pain and suffering. The defendant moved for a new trial, but before the court could rule on the motion, the plaintiff died.

It is reported that the defendant subsequently filed a motion for relief from the judgment on the grounds that Florida Statutes 768.24 provides that when a surviving heir dies before a judgment awarded under the Wrongful Death Act becomes final, the judgment should be reduced to the value of the services and support lost from the date of the decedent’s death to the date of the survivor’s passing. The court agreed, finding that because the judgment was not final when the plaintiff died, the verdict should be reduced. The plaintiff’s estate then appealed. Continue reading ›

Florida Court Upholds a Plaintiff’s Right to Depose a Party in a Car Accident Case

Published on: February 10, 2022 | Lusk, Drasites & Tolisano, P.A.

Losing a loved one in a collision often causes not only emotional trauma but also significant financial losses. As such, people that lose family members in accidents will often seek compensation from the party responsible for the crash. In many fatal car accident cases, the defendant driver will be the sole surviving witness. As such, the courts will typically uphold the plaintiff’s right to take the defendant’s deposition despite their objections, as demonstrated in a recent ruling issued by a Florida court. If you suffered the loss of a loved one in a fatal car crash, it is smart to meet with a Cape Coral car accident lawyer to assess your rights.

Factual Background of the Case

It is reported that the defendant college employed the defendant driver. The defendant driver was transporting a school athletic team to an event in a van when he made a wrong turn into oncoming traffic. The decedent’s vehicle struck the van, causing the decedent to suffer fatal injuries. As such, the plaintiff filed a lawsuit against the defendants, asserting wrongful death claims.

It is alleged that the plaintiff moved to compel the defendant driver’s deposition. The attorney for the defendants responded by filing a motion for a protective order on the grounds that the defendant driver could not sit for a deposition or testify in his own defense because he suffered severe physical and mental harm in the accident. The plaintiff objected to the defendant driver’s motion, stating that precluding her from deposing him would greatly impair her claims and that it was not warranted under the circumstances. Continue reading ›

Court Discusses Modifying a Parenting Plan Under Florida Law

Published on: February 3, 2022 | Lusk, Drasites & Tolisano, P.A.

Typically, if a couple with a child ends their marriage, the Florida courts will find it in the child’s best interest to award joint custody. As such, they will often set forth an order establishing a parenting plan and defining when each parent has physical custody of the child. While either parent can request a modification of the plan, such requests will only be granted if the moving party shows that it is both in the best interest of the child and justified under the facts of the case, as demonstrated recently in a ruling set forth by a Florida court. If you have questions regarding a child custody modification, it is advisable to contact a dedicated Cape Coral child custody lawyer to discuss your alternatives.

Procedural Background of the Case

It is alleged that the wife and the husband ended their marriage in 2016. Two children were born during the marriage, and the divorce decree included a parenting plan. The plan awarded the wife primary time-sharing rights and awarded the husband time-sharing every other weekend and on Wednesday nights. It also included a standard summer and holiday schedule. The husband later moved to appoint a parenting coordinator and to hold the wife in contempt for failing to abide by the parenting plan.

Reportedly, in support of his motion, the husband asserted that as he worked as a surgeon in an emergency department, it was hard for him to abide by the schedule, and the wife would not agree to modify the custody arrangement. Following a hearing, the trial court ruled that if the husband provided the wife with notice, he should be permitted to alter one of his weekends per month. The wife filed an appeal. Continue reading ›

Florida Court Discusses Expert Testimony in Car Accident Cases

Published on: January 30, 2022 | Lusk, Drasites & Tolisano, P.A.

In many vehicle accident instances, there is no doubt that the plaintiff was injured as a result of the incident. In other cases, however, the defendant may contend that the plaintiff’s asserted injuries were not caused by the collision. In such cases, the defendant may attempt to call a biomechanical expert to testify regarding the force used in the collision and whether it was adequate to cause the plaintiff’s injuries. In a case where the plaintiff complained that the expert was not qualified to opine on the issue of causation, a Florida court recently reviewed the constraints imposed on biomechanical experts in vehicle accident cases. If you were hurt in a car accident, it’s vital to know what evidence may be used to contradict your claims, and it’s a good idea to consult with a skilled Florida car accident lawyer to discuss your alternatives.

The Case’s Background

According to reports, the plaintiff was hurt in a collision with the defendant. She then launched a lawsuit, claiming that the defendant’s careless driving had caused her injury. The defendant claimed that the crash did not cause the plaintiff’s injuries and stated that she planned to back up her claim with the testimony of a biomechanical expert. The plaintiff wanted to have the expert testify excluded because he was unqualified to testify about whether the collision caused the plaintiff’s injuries. The plaintiff’s motion was eventually allowed by the court.

Biomechanical Experts’ Testimony Is Acceptable

Expert testimony is governed in federal courts by Rule 702 of the Federal Rules of Evidence, which states that a person who is qualified by experience, training, skill, or education may testify if his or her knowledge will assist the fact finder in understanding the evidence or determining a disputed fact, and the testimony is based on adequate data or facts and is the product of reliable methods and principles. Continue reading ›

Florida Court Discusses the Use of Hearsay in Truck Accident Cases

Published on: January 25, 2022 | Lusk, Drasites & Tolisano, P.A.

People who cause fatal truck accidents typically refuse to admit responsibility and, in many cases, attempt to blame the person who died for the accident. Although defendants in truck accident cases are allowed to claim the deceased person’s contributory negligence as a defense, they cannot rely on inadmissible evidence to do so. In a recent Florida matter, a judge ruled on whether hearsay information can be used to prove comparative fault. If you or a loved one has died as a result of a collision with a tractor-trailer, you should consult with an experienced Florida truck accident attorney to discuss your possibilities.

The Fatal Crash

The plaintiff’s spouse was alleged to have been at work when he was struck and killed by a tractor-trailer owned by the defendant corporation and driven by the defendant driver. The plaintiff sued the defendants for wrongful death, claiming that their negligence was to blame for her husband’s death. During the trial, the defendants introduced testimony from a police officer who stated that another officer informed him that when the plaintiff’s husband was found at the accident scene, he had an earphone in his ear. The plaintiff appealed the final verdict, claiming, among other things, that the trial court erred in allowing the officer’s testimony since it was hearsay.

In Trucking Accident Cases, Is Hearsay Evidence Acceptable?

The appellate court determined that the officer was most likely testifying as an expert witness at the trial. As a result, the court considered how much he was allowed to rely on inadmissible evidence. The court emphasized that facts do not need to be accepted into evidence if they are of a sufficiently reliable nature. Expert witnesses may not reveal facts to the jury that are normally inadmissible unless the court determines that their probative value overcomes the danger of adverse influence. Continue reading ›

Court Explain’s Florida’s No Fault Threshold

Published on: January 20, 2022 | Lusk, Drasites & Tolisano, P.A.

It is not uncommon for someone injured in a car accident to seek compensation from the party who caused the accident. While persons who cause car accidents carelessly may be held liable in a civil lawsuit, legislative exclusions may apply in some cases, preventing liability from being imposed. This was addressed in a recent Florida case, which determined that Florida’s No-Fault Threshold barred a plaintiff wounded in an automobile accident from receiving damages from the respondent. If you were injured in an automobile accident, you should consult with an experienced Florida car accident lawyer to see what damages you may be able to claim.

The Crash and the Ensuing Lawsuit

The plaintiff was allegedly driving his car when he was rear-ended by the defendant. The collision happened in Florida, but both individuals were from Georgia. In Florida, the plaintiff filed a civil case against the defendant, demanding damages for his injuries. The plaintiff filed a motion for summary judgment on a number of the defendant’s affirmative defenses. Most of the defendant’s defenses were dropped, but he challenged the plaintiff’s petition to apply Florida’s No-fault Threshold. As a result, the only question before the court was whether the defendant could pursue that defense.

The No-Fault Threshold in Florida

If a defendant has sufficient insurance or security at the time of an accident, the plaintiff must show a threshold injury set forth by the law to be able to recover certain non-economic damages, according to Florida Statutes 627.737, often known as the No-Fault Threshold. If an insurance coverage meets Florida’s statutory insurance standards, it will provide enough protection. Continue reading ›

Florida Court Discusses Negligent Entrustment in Car Accident Cases

Published on: January 15, 2022 | Lusk, Drasites & Tolisano, P.A.

In rare cases, if a person is injured in an automobile accident while driving a loaned vehicle, the owner of the vehicle may be held accountable for the damages. In most cases, an owner’s liability will be determined by whether they consented to the borrower’s use of the vehicle and knew or should have known that the borrower would not drive safely. As a result, if a plaintiff cannot show that the owner was aware of the driver’s usage of the car, the claims against the owner may be rejected before the case goes to trial. However, dismissal may be premature if the plaintiff was not given a complete opportunity to develop the evidence against the owner, as demonstrated in a recent Florida decision. If your loved one was killed in a car accident caused by a loaned vehicle, you should speak with an experienced Florida fatal car accident lawyer about your options.

The Case’s Background

The defendant driver, who was seventeen at the time and did not have a driver’s license, is accused of stealing his mother’s sports automobile. He was traveling with the plaintiff’s daughter and another male adolescent on a Florida roadway. He lost control of the vehicle and smashed into a tree while traveling at an extreme rate of speed. The plaintiff’s daughter tragically died as a result of her injuries acquired in the tragedy.

According to reports, the plaintiff filed a complaint against the defendant driver and his mother, stating that the mother allowed the defendant driver to drive her car despite his lack of a license. The plaintiff could not prove her liability, so the defendant mother filed a request for summary judgment. The request was granted by the trial court, and the plaintiff appealed. Continue reading ›