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The four elements of negligence are duty, breach, causation, and damages.  A plaintiff must prove all four elements.  Sometimes the most fundamental issue of a negligence claim is in dispute: if the defendant even owed a duty to the plaintiff at all.  In a recent Fifth District case, the court considered the extent of a pharmacy’s duty to its customer.

In Oleckna v. Daytona Discount Pharmacy, a man was being treated by a doctor for “stress syndrome” with prescriptions for Alprazolam and  Acetaminophen combined with either Oxycodone or Hydrocodone.  The pharmacy allegedly filled thirty or more prescriptions written days before the previous prescription should have been finished.  The man ultimately died as the result of a combined drug intoxication of Alprazolam and Hydrocodone.

His personal representative sued both the doctor and the pharmacy on behalf of the estate.  The doctor settled, but the pharmacy did not.  The plaintiff alleged that the pharmacy owed the man various duties, including using proper care in filling the prescriptions; exercising the same level of care as a reasonably prudent and similarly situated pharmacist; not filling unreasonable prescriptions; warning of the dangers; complying with the pharmacy’s policies and procedures and relevant statutes and regulations; and not subjecting the man to unreasonable risk of harm.

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Sometimes, when a person is attacked, a property owner may have liability for failing to provide adequate security, which may include lights, security staff, and other security measures.

A recent Fourth District case addressed the duty of an apartment complex to a person whom it had instructed not to return to the premises.  718382_21638181In Nicolson v. Stoneybrook Apartments, LLC, the plaintiff sued the apartment complex after she was shot in the leg at a party in the common area of the complex. She alleged that the complex had failed to maintain the property in a safe condition and failed to provide adequate security.

The defense argued that it had limited duties to the plaintiff because she was a trespasser at the time of her injury. The plaintiff argued that her lawsuit was based on ordinary negligence, rather than premises liability, and her status was not relevant. The trial court, however, found her status to be relevant and instructed the jury to determine whether she was an invitee or trespasser. The defense presented evidence that the plaintiff had been repeatedly informed that she was not allowed at the complex. The defendant agreed to apply the standard of care required for a discovered trespasser instead of the lower standard required for an undiscovered trespasser. The jury returned a verdict in favor of the defense, finding that the plaintiff was a trespasser at the time of her injury and that the defendant was not grossly negligent.

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Pursuant to Florida Statutes § 627.727, an insurer must provide uninsured motorist (“UM”) coverage alongside vehicle liability coverage, unless the insured rejects the UM coverage in writing.  The statute further provides that UM limits shall not be less than the bodily injury limits, unless the insured selects a lower limit that complies with the plan’s rating.  If the insured chooses to reject coverage or elects lower limits, he or she must do so on a form approved by the Office of Insurance Regulation. When a named insured makes the election on the proper form, it is 734602_63937726presumed that there was an informed and knowing selection by all of the insureds.

UM coverage is frequently litigated. The First District recently examined whether a company could have a policy with a half million dollar UM limit for executives and their families, while only carrying a limit of $30,000 for other insureds under the policy, including other employees.

In Germany v. Darby, an employee was injured in a work-related automobile accident while driving a vehicle both owned and insured by his employer.  The other vehicle involved in the accident was uninsured.  The vehicle was covered under the employer’s insurance policy, which included UM coverage of up to $500,000 for executives, but $30,000 for other employees.  The limits were lower than the bodily injury limits under the policy, but the employer had selected these limits on the appropriate officially approved form.

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This blog has previously discussed how the Fifth Amendment can apply in civil cases. A person involved in civil litigation can assert his or her Fifth Amendment right to avoid being compelled to testify or respond to discovery requests that might tend to subject him or her to criminal 169849_3851liability.

The issue of the Fifth Amendment does not arise in most personal injury cases. Sometimes, however, it can come up when the underlying incident is one that could potentially result in both civil and criminal liability. It could arise, for example, in an automobile accident involving drunk driving. Responses to discovery or testimony admitting to driving while intoxicated could lead to criminal liability.

One way to resolve the Fifth Amendment concerns in a civil case is to stay the civil case until the criminal case is completed. Once the criminal case has concluded, the person is no longer at risk of subjecting himself or herself to further criminal liability for the same action.

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Although it sometimes might not feel that way, the judicial process is intended to be fair. Attorneys are expected to treat opposing counsel with professional courtesy and integrity. Courts generally frown on tricks and “gotcha” tactics, and a recent Second District case shows how courts sometimes respond when an attorney attempts to take advantage of a clerical error.

In Andreaus v. Impact Pest Management, Inc., the plaintiff was injured in a slip and fall. She sued both the condominium association and a file9551246814621pest control company, alleging she had slipped on pesticide on the floor in a common area of the condominiums.

Her medical records contained statements that she had slipped on water, but the source of the statements was unknown. The plaintiff denied ever saying it, and there were no witnesses who could testify as to the source. The plaintiff moved to exclude the statements as hearsay, and the court granted the motion. The plaintiff’s counsel redacted the medical records and admitted them into evidence at trial.

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Video or photographic evidence can only be used at trial after being authenticated. To authenticate a video, the party wishing to introduce it must submit sufficient evidence to support a finding that it is what he or she claims it to be. If a person made the video, he or she can authenticate the video by testifying as to when and where it was taken. Sometimes, however, evidence comes in the form of surveillance footage. In such cases, there is no individual who was present during the events and made the recording. Florida law allows a witness 1153865_89731050responsible for the video system to authenticate the video, if he or she can confirm the accuracy of the time and date the video was taken and that it has not been edited or tampered with.

An unusual Third District case recently addressed the authentication of a surveillance video. In Lerner v. Halegua, a “professional advisor” to one of the parties in a civil lawsuit received a number of threatening notes and other threatening items at his home and office. When the police interviewed the advisor, he identified only a former business relation with no connection to the lawsuit as the possible culprit. The security officer reviewed the surveillance footage from the main gate and the lobby of the condominium where the advisor lived, and he reported to the police that he found no evidence on either system.

The advisor subsequently viewed the footage and stated that he recognized the opposing party in the lawsuit coming through a door on the footage depicting a time shortly before the notes were found. The advisor showed stills from the footage to police, alleging it showed the opposing party. He also picked the opposing party from a lineup and pressed criminal charges against him.

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Once a plaintiff obtains a judgment, he or she still must collect. When the defendant has sufficient insurance to cover the entire judgment, collection is relatively easy. When insurance is insufficient to cover the judgment or the policy does not cover some aspects of the damages, MINOLTA DIGITAL CAMERAcollection becomes far more complicated. Many individuals do not have sufficient assets to cover a large judgment. The defendant’s insurance coverage is, therefore, extremely important to the plaintiff.

In a recent case, the Fifth District considered whether an automobile insurer was liable for the attorney’s fees assessed against its insured after the plaintiff received a judgment of more than 25% of the defendant’s offer of settlement. In Geico General Insurance Company v. Hollingsworth, the defendant moved to add his insurance company as a party defendant to the judgment for attorney’s fees, which was in an amount in excess of $100,000.

The trial court found the insurer was liable under the terms of its policy. Under the heading “ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY COVERAGES,” one of the enumerated items read “All court costs charged to an insured in a covered lawsuit.” The trial court found that this language applied to the attorney’s fees.

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Before a person files a medical malpractice suit in Florida, he or she must provide notice to each prospective defendant of the intent to file suit. The notice must be set by certified mail, return receipt requested. The notice must list all healthcare providers the person has seen for the injuries in question since the alleged negligence, all of the healthcare providers who treated or evaluated the person in the two years prior to the 737201_80327187alleged negligence, and copies of all medical records relied upon by the injured person’s medical expert. Section 766.106, Florida Statutes.

The injured person cannot file suit for 90 days after mailing the notice to any prospective defendant. During that time, the prospective defendant or his or her insurer is to conduct a pre-suit investigation. The statute of limitations is tolled as to all potential defendants during the 90-day period.

The question then arises as to whether the injured person must serve all prospective defendants at the same time, or if he or she may serve other defendants during the tolling period, thereby extending the statute of limitations. The Third District recently answered this question, finding that a plaintiff may provide notice to another prospective defendant during the tolling period and extend the statute of limitations as to all defendants.

In Salazar v. Coello, the plaintiff allegedly suffered an injury as a result of a surgical procedure. She first gave notice to the surgeon and the hospital. She subsequently gave notice to the anesthesia providers. She later filed suit against the surgeon, the hospital, and the anesthesia providers.

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It is common for a nursing home or assisted living facility to require residents to sign arbitration agreements as part of their admission documentation. When something goes wrong and the resident is injured, the arbitration agreement is often litigated.314323_2434

A recent Florida case addressed an unusual issue involving arbitration agreements. In Davis v. Hearthstone Senior Communities, Inc., a woman was injured and ultimately died while residing in a nursing home. As part of the admissions process, she had signed a document that the nursing home alleged was an arbitration agreement.

The woman’s personal representative filed suit against the nursing home, and the nursing home filed a motion to compel arbitration. As part of discovery, the estate requested the admissions documents. The defendant produced only the signature page of the arbitration agreement.

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Social media has had a significant impact on various aspects of litigation, particularly discovery. The Fourth District recently considered whether a defendant had a right to examine the photos posted on the plaintiff’s Facebook account.

In Nucci v. Target Corporation, the plaintiff allegedly slipped and fell on the defendant’s premises. She alleged that she was injured, 3d illustration: Technique. concept cameraexperienced pain, and incurred medical expenses. She also alleged a physical handicap and permanent injury, lost earnings, lost earning potential, pain and suffering, and aggravation of pre-existing injuries. She filed suit against the store and affiliated entities.

The store’s attorney found the number of photographs on the plaintiff’s Facebook profile decreased after her deposition. The defendant moved to compel inspection of the Facebook profile and sent a letter asking the plaintiff not to destroy any information posted on her social media accounts.

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