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Usually, the defendants in an automobile accident case are other drivers, but sometimes negligence in the design of the road caused or contributed to the accident. In a recent case, the Fifth District considered whether an engineering firm could be held liable for a road design when the county had a subsequent set of plans that were signed by another engineer.

Villanueva v. Reynolds, Smith and Hills, Inc. arose after a fatal accident at a rural intersection. The location of the accident was a part of a file0002056316564county road expansion project. The county had contracted with the defendant for the project’s engineering design services.

The deceased man’s personal representative filed suit against the engineering company and the county, alleging that the placement of advance warning signs for the intersection was negligence. The defendant engineering firm moved for summary judgment, arguing that its plans had not been used for construction of the signs, that the county had assumed full liability for the project when it signed and sealed a later set of plans, and that the county assumed full liability for patent defects by accepting the finished project.

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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 1160103_98450957Acetaminophen combined with either Oxycodone or Hydrocodone. The pharmacy allegedly filled 30 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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In Peninsula Logistics, Inc. v. Erb, the defendant driver was driving a semi-truck owned by one company to haul cargo owned by another company in a trailer owned by a third company.  The defendant driver was involved in an automobile accident.  The people in the other vehicle sued both the defendant driver and the owner of the cargo. The opinion does not mention whether they also pursued claims against the vehicle 1329363_27197363and trailer owners.

The defendant driver was not an employee of the defendant company, but instead transported the company’s cargo as an independent contractor.  The plaintiffs argued, however, that the defendant company was liable for the driver’s negligence.

Pursuant to section 316.302(1)(b), Florida Statutes, all owners and drivers of commercial vehicles engaged in intrastate commerce are subject to certain federal regulations.  Those regulations require “employers” to take certain actions involving the maintenance, safety and operation of the vehicle.  The definition of employer in 49 C.F.R. § 390.5 includes an entity that “assigns employees to operate…” the vehicle.  “Employee” includes independent contractors under the regulations.  Thus, if the defendant company assigned the driver to operate the vehicle, it would have had certain duties related to the safety, maintenance, and operation of the vehicle.

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The Second District recently reviewed a case involving potential liability of a power company contractor for an automobile accident.  In The L.E. Myers Company v. Young, a man was killed when a vehicle traveling 91 miles per hour in a 40 mile per hour zone struck his stopped vehicle.  His vehicle spun around and ultimately hit the concrete power pole that was hanging off the back of a flatbed trailer.  The man’s estate filed 1277648_49856528
suit against the other driver, the power company, the contractor, and its two subcontractors.

The defendant contractor had contracted with the power company to replace power poles on the shoulder of a street.  The defendant used subcontractors to transport and perform the crane work to set the pole.

On the day of the accident, the defendant told the trailer driver where to park.  The cab and most of the trailer were on the shoulder, but the left rear tire was still in the road.  The pole extended several feet beyond the trailerb ut was completely over the shoulder.

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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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