Articles Posted in Wrongful Death

There are many products that we use in our daily lives, and thousands more that we have to choose from on store shelves. Recently, in the case of Fox v. Johnson & Johnson, a North Dakota jury returned a verdict in favor of a group of plaintiffs who brought a wrongful death claim against common household goods product maker Johnson & Johnson. The plaintiffs alleged that Johnson & Johnson’s talcum powder based products caused their mother to develop cancer and that the cancer ultimately took her life.

When a product results in an injury or death, the victim or the victim’s surviving family members can bring a product liability action against the manufacturer. There are three ways that plaintiffs can recover under this cause of action. First, the plaintiffs can demonstrate that the product at issue was designed in an unreasonably unsafe manner. Second, the plaintiffs can show that although the product was reasonably safe in its design, the particular unit that the victim received suffered from a defect during the manufacturing process that rendered the product unreasonably dangerous.

Finally, a plaintiff can show that a product was not reasonably safe because it failed to include proper warnings or instructions on how to use the product. Plaintiffs are not limited to choosing one of these three theories of recovery can assert all three of them where applicable.

In Soto v. McCulley Marine Services, Inc., a jet skier unfortunately lost his life when he was tossed from a jet ski and sucked beneath a nearby moored vessel. The man was wearing a flotation device at the time he fell from the jet ski. Also, near the site of the accident, a dock was being utilized as a storage and preparation area for an artificial reef project maintained by the County of Manatee. The barge under which the man was trapped and a tugboat were moored to the staging area dock and participating in the project.

After the accident, the decedent’s estate brought a wrongful death action against the people who owned the barge and the tugboat. The personal representative of the man’s estate alleged that both vessels were docked negligently at the time of the accident. More specifically, the personal representative contended that the position of both boats worsened the already strong tides and caused the jet skier to be sucked underneath the barge, even though he was wearing a life preserver.

The plaintiff’s negligence theories included a claim that a seasoned captain would have known or should have been aware that the area where the two vessels were moored would be a hot spot for jet skis during the holiday weekend, and that the captain in charge of the two vessels needed to moor them elsewhere or provide a warning to jet skiers in the area that the ships’ arrangement created a danger. The plaintiff also asserted that the captain violated U.S. Coast Guard regulations by not providing sufficient manpower to attend the vessel during the holiday, and that this failure constituted negligence.

The majority of insurance claims associated with car accidents are paid through an insurance company. Despite this, the general rule holds that an insurance company is not named as a party to the lawsuit against the driver who allegedly caused the crash. The purpose of these laws is to prevent a jury from learning that an insurance company would ultimately pay for any judgment awarded in the plaintiff’s favor, which may skew the amount of damages that the jury awards.

In GEICO General Insurance Company v. Lepine, Florida’s Second Appellate District considered whether a plaintiff could name a liability insurer as a party in a lawsuit on the basis that the insurance company had allegedly reneged on an agreement to pay the policy limits. The facts of this case are as follows. The plaintiff’s husband unfortunately lost his life in a fatal car accident.

The complaint named the other driver and the other driver’s insurance company as the defendants and included allegations that the insurance company had agreed to pay the policy limits both in an oral conversation with the company’s lawyer and in a voicemail message, and that the insurance company later refused to make payments. The plaintiff’s complaint also included a breach of contract claim against the other driver, based on the insurance company’s alleged failure to pay.

Many parents rely on daycare services to tend to their children while they are working throughout the day. Although daycare facilities are subject to many health and safety requirements, unfortunately accidents due to an employee’s carelessness occur. When a child’s injuries are the result of a babysitter’s or daycare facility’s negligence, the parents may be able to bring a personal injury action to compensate the child for his or her injuries.

In Bryant v. Windhaven Insurance Co., the Florida Third District Court of Appeal was presented with the issue of whether an insurance company who issued a car insurance policy was legally liable for the death of a child that occurred in a van belonging to a daycare facility. The death occurred after the infant was left inside a daycare facility-owned van during the hot summer months for over seven hours.

Following the tragedy, the infant’s estate brought a wrongful death action against the daycare company, the daycare company’s landlord, and the individual driving the van that day. The driver of the van contacted his personal car insurance company for the purpose of providing defense and coverage, even though the accident occurred in a vehicle owned by the daycare business. The driver’s insurer agreed to provide coverage but did so under a reservation of rights. This means that the insurance company reserved its right to later deny coverage of the incident to the driver.

Florida is home to many amusement parks that attract countless visitors every year, especially during the summer months. This year, however, there appears to be a rise in the number of injuries and illnesses suffered at Florida amusement parks. According to Florida law, parks are required to report injuries that occur as the result of a ride and that require an immediate hospital stay of 24 hours or more.

During the first three months of 2015, at least three people reported feeling seriously ill after riding the Harry Potter & the Forbidden Journey ride at Universal Orlando. The injuries on the Harry Potter ride at Universal Orlando involved a 69-year-old man suffering from severe chest discomfort, a 51-year-old-man who had difficulty moving his extremities, and a 76-year-old woman who experienced an “altered mental status” after getting off the ride.

Additionally, according to injury reports submitted to the governing Florida State agencies, Walt Disney World reported six injuries and Universal reported seven. At Disney’s Magic Kingdom, for example, a 64-year-old man injured his ankle while exiting a ride, and two people reported feeling extremely ill after riding Expedition Everest.

Japanese-based auto parts manufacturer Takata Corp. recently initiated the largest vehicle recall in United States history. For the last decade, representatives of Takata have denied that its products are defective, despite reports that motorists were suffering severe injuries and even death as a result of the automaker’s exploding airbags. In May 2015, Takata announced that its airbags were defective and agreed to the recall. Based on its figures, the recall affects nearly one in every seven vehicles in the United States.

The defective nature of Takata’s airbags lies in their tendency to explode violently when they deploy, causing shrapnel and other material to accelerate through the vehicle’s passenger department. In some instances, the airbags deploy suddenly and without warning, posing serious dangers to occupants. To date, at least six fatalities and over 100 injuries have been tied to the defective airbags.

According to the United States Secretary of Transportation Anthony Foxx, Takata’s refusal to take responsibility for its defective products will no longer be tolerated. The National Highway Traffic Safety Administration (NHTSA) has taken a decidedly more aggressive approach to reviewing and investigating allegations regarding Takata’s products.

Florida’s Second District Court of Appeal recently handed down an opinion agreeing with other appellate authority in the state that a resident of a nursing home is not bound by an arbitration agreement executed by the resident’s family member at the time of the resident’s admission to the facility. In Sovereign Healthcare of Tampa v. Estate of Yarawsky, 2D13-2083, an elderly nursing home resident had lived at the plaintiff’s facility for 10 months prior to his death. Following his death, the decedent’s estate filed a lawsuit against the nursing home, alleging that the decedent died due to the nursing home’s negligence. Shortly thereafter, the nursing home filed a motion to compel arbitration on the basis that the resident admission forms and financial agreement executed at the time of the decedent’s admission contained an arbitration agreement.

The trial court ruled in favor of the nursing home company, compelling the parties to arbitrate their dispute. The decedent’s estate filed a motion for reconsideration of the order on the basis of the arbitrator that the nursing home selected to preside over the proceeding. While the nursing home’s motion for reconsideration was pending, the Florida Fifth District Court of Appeals entered an opinion in a case involving similar circumstances, Perry ex rel. Perry v. Sovereign Healthcare of Metro W., 100 So. 3d 146 (Fla. 5th DCA 2012).

In Perry, the Fifth District concluded that the arbitration clause was not enforceable against the daughter of an individual who passed away during residency with the nursing home facility. The admission paperwork omitted any references to the resident, and the area where the daughter could have indicated her authority to execute agreements on behalf of the resident was left blank. Additionally, “there was ‘no evidence [that the resident] was incapable of singing the agreement on her own behalf’ and even if the daughter had signed on the mother’s behalf, there was ‘absolutely no evidence that [the daughter] had the authority to bind [the resident] to the arbitration agreement.” The court reasoned that an agreement could not be enforced against an individual who was not a party to the agreement, and who was not bound to its terms by a representative.

In a recent study, the AAA Foundation for Traffic Safety concluded that six out of 10 motor vehicle accidents involving teens are caused by distracted driving. The biggest culprits causing teens to take their eyes off the road are cell phones and talking with other passengers.

To compile the study, researchers reviewed and analyzed roughly 1,700 videos of teens operating motor vehicles, particularly during the moments leading up to a collision. Approximately 6,850 cameras were installed in the vehicles of drivers ages 16 through 19. The cameras were set up to view both he driver and the driver’s view through the front windshield.

The footage revealed that in 60 percent of moderate-to-severe crashes, the driver was not paying attention to the road when the accident occurred. This is particularly surprising, considering that the teen drivers had consented to being videotaped while driving and knew that the tapes would eventually be released. Despite this, the teens engaged in a number of distracted driving activities, suggesting that they did not see the behavior as risky or dubious.

The Florida Supreme Court held this month that an apartment complex could be held liable for the shooting deaths of two of its residents by unknown attackers. At issue in the case, Sanders v. ERP Operating Limited Partnership, was whether or not the jury could have reasonably found that the defendant was a proximate cause of the decedents’ deaths, given that the method by which the assailants gained entry to the apartment complex was unknown. The court held that the plaintiffs presented sufficient evidence to support the conclusion that the defendant was a proximate cause of the decedents’ deaths.

In 2004, two residents of an apartment complex owned by the defendant were shot in their apartment by unknown parties. At trial, the evidence showed that, although the apartment complex was advertised as a “gated community,” the gate was broken for four months of the year prior to the murders, including the two months immediately preceding them.

The jury found that the apartment complex was 40 percent liable for the deaths and awarded damages. After the trial court denied the defendant’s motion for a directed verdict, the appellate court reversed, holding that since the assailants’ method of entry was unknown, proximate causation could not be established.

Does a truck parked on the shoulder of the road loaded with a utility pole constitute an inherently dangerous activity as a matter of law? Florida’s Second District Court of Appeal weighed in on this question in a recent wrongful death case.

The case arose from a horrific accident that resulted in the death of a motorist. After stopping about 75 feet before a worksite where large utility poles were being installed, the decedent was rear-ended by another motorist, who had been driving more than 90 miles per hour. The impact threw the decedent’s car into the back of a tractor trailer parked on the shoulder of the road along the worksite. The truck’s back left tire was sitting on the white line and slightly over.

The decedent was severely injured and eventually died of his injuries. His estate brought a wrongful death claim against the reckless driver, the general contractor, and other defendants.

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