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Lawsuits: Separating Fact from Fiction

Between 1985 and 2003, the number of lawsuits for personal injuries and medical malpractice tried in the federal courts dropped by 79%, and, in the largest state courts, the number dropped almost 32% between 1992 and 2001. Despite these statistics, it seems as if you hear nothing but complaints about the greed of clients and lawyers, and how an explosion in lawsuits is ruining the country. It is time to separate truth from fiction.

Fiction: The number of lawsuits is skyrocketing.

Fact: As stated above, the number of lawsuits (of nearly every kind and nearly every jurisdiction) is plummeting. Mandatory arbitration and laws hostile to plaintiffs account for most of this drop.

Fiction: The costs of lawsuits are driving companies and doctors out of business.

Fact:    Malpractice costs are less than 2% of the total cost of health care, and on their list of worries small business owners rate as number 65 concerns over the cost of lawsuits, according to a recent survey.

Fiction:  Lawsuits are driving up your insurance rates.

Fact:    Insurance company profits are driving up your insurance rates. Insurers make record profits, even as the number of suits plummets, yet your rates do not go down.

Fiction: The costs of lawsuits are a “tax” on all Americans.

Fact:     The “studies” that support this statement are funded by big oil, drug, tobacco, and insurance companies, the every entities that benefit from a reduction in lawsuits. There is no factual or scientific basis for this claim, or even a reasonable explanation of how making a wrongdoer pay for his wrongs qualifies as a “tax” on anyone.

                                                          Conclusion
    People complaining about lawsuits do so because they have a financial or political interest in the issue. Insurance companies do not make money by paying claims. Large corporations want the harm they cause to go uncompensated. Politicians find it easier to blame the victim than to address the underlying problems. The only people harmed by the reduction in lawsuits are those victimized by intentional or negligent acts who are being denied any recourse.

What Types of Cases do Personal Injury Lawyers in Tampa and Clearwater Handle?

When people think of personal injury lawyers in Tampa and Clearwater, often an image of a car accident comes to mind. However, personal injury lawyers in Tampa and Clearwater handle many more types of cases than just car accident cases. In the state of Florida, personal injury law falls under the range of law cases called tort law.

Tort law deals with cases involving civil wrongs, such as damages to another’s property, person or rights. Tort laws were written to compensate victims for damages due to the fault or negligence of someone. Because of tort law, an injured person has the right to be compensated for damages he or she has suffered. The word “tort” means “injury” in old English.

The three basic types of torts are

   1. strict liability,
   2. intentional, and
   3. negligent.

Strict liability torts are cases where the defendant is liable regardless of fault. In these types of cases, it doesn’t matter how careful the defendant was or should have been. If the defendant's actions caused the plaintiff's injury, then the defendant is liable. In Florida strict liability torts only apply to a few actions. For instance, an owner of a dangerous animal is liable for any injuries they cause. Product manufacturers may be strictly liable for injuries caused by those products. Another example of strict liability is anyone who engages in dangerous activities such as:

   1. building demolition
   2. crop dusting
   3. explosive manufacturing
   4. fumigating
   5. or blasting.

In order to prove a case based on strict liability, a personal injury lawyer in Tampa or Clearwater must show four things.

   1. It was the defendant’s duty to make the activity or product safe
   2. The defendant did not make the activity or product safe
   3. This fact caused the plaintiff's injury
   4. The plaintiff suffered an injury.

Intentional torts, are intentional acts by a defendant that harmed the plaintiff. Assault and battery are examples of intentional torts. Other examples include:

   1. false imprisonment or other invalid uses of legal authority
   2. invasion of privacy
   3. trespassing
   4. and defamation.

In an intentional tort case, the personal injury lawyer in Tampa must show that

   1. the defendant committed the act
   2. the defendant intended the consequences, or knew what the consequences might be
   3. the act was largely responsible for the resulting harm or injury.

Negligent tort law has to do with how careful a person was when her or she caused an injury, and also how careful her or she should have been. Most personal injury lawsuits in Florida fall under the category of negligence. An example of a this type of tort is a car accident.

A personal injury lawyer in Tampa must show four things when proving negligence:

   1. the defendant should have followed a certain standard of conduct or care to shield the plaintiff from injury
   2. the defendant did not follow that standard of conduct or care
   3. this action resulted in the plaintiff's injury
   4. the plaintiff suffered an injury.

Some Broad Categories of Tort Law Cases Include:

   1. Car, truck and motorcycle accidents
   2. Slip and fall accidents
   3. Wrongful death
   4. Nursing home abuse or neglect
   5. Product liability
   6. Hurricane insurance claims
   7. Sinkhole accidents
   8. Defective medical devices or drugs
   9. Asbestos/Mesothelioma

Sometimes a product fails so badly that it causes widespread death, injury, or damages, and in these cases, a mass tort can arise. Usually this happens when a company ignores public safety and disastrous consequences from this action result. An example is a medical device or a drug, which is found to cause serious injury or death.

Although most personal injury cases involve car accidents they are not the only types of cases that personal injury lawyers in Tampa and Clearwater handle. Personal injury lawyers can evaluate the unique facts of a your case and determine whether there is enough evidence to prove a tort. If that is the case, then you may be entitled to financial compensation for your injuries. Compensation can include medical bills, lost wages, pain, and suffering.

Making A Resolution for 2011

While Florida motor vehicle accidents are on the decline, there is still a nationwide problem of texting while driving.  Why not have a New Year’s resolution to personally stop texting while driving?

All the data is not in, but so far, it looks like 2010 had the lowest number of traffic crash fatalities in Florida in 30 years according to the Florida Highway Patrol.  They reported 2,430 traffic crash deaths in 2010, the lowest number since 1978. In 2009 2,563 people died in traffic crashes, and this is 5% higher than 2010’s numbers.

The 2010 numbers for each county have not yet been released, but according to the Fatality Analysis Reporting System there were 18,168 crashes in Hillsborough County Florida in 2009, down 10% from 2008.   In Pinellas County there were 13,669 crashes – almost the same amount as there were in 2008. 

If you live in the Tampa Bay area, things are definitely improving on the roads, but there is still a huge and growing problem.   Texting while driving seems to be growing in these counties and around the nation.  The Insurance Research Council released a survey in November 2010 stating that 18 percent of drivers in the U.S. reported texting while driving in the last 30 days.  This was definitely a contributing factor in the National Highway Traffic Safety Administration reports that showed 5,500 people died in 2009 due to distracted driving, and that distracted driving was a factor in 16 percent of crashes and fatalities in both 2008 and 2009.

Perhaps Florida drivers should participate in the nationwide effort to make a New Year’s resolution to stop texting and driving in 2011. Although the Florida Senate has failed in the past to pass a ban on texting and driving, it will probably try to pass the legislation in 2011.

There are several things that Florida drivers can do to reduce the urge to use a cell phone when driving.  Obviously, turning off the phone before starting the car is the best solution, but you could also put the phone in the glove box or trunk before driving.  If this is too difficult, there are companies and new technology that restricts the phone’s ability to send and receive text and email messages. Some examples are:

Textecution - http://www.textecution.com which disables texting if the phone is moving faster than 10mph.

iZUP – http://www.getizup.com/ which automatically sends calls to voicemail and holds text messages when the phone is moving.

TXTBlocker – http://www.txtblocker.com/ which not only disables texting and calling while the phone is moving, it text messages parents if the phone is moving at speeds greater than 65 mph, and allows parents to check where the phone is based on a GPS position.

DriveSafe.ly – http://www.drivesafe.ly/ which voices text messages and emails as they are received by the phone.

These applications can certainly help to deter drivers from using their cell phones behind the wheel.  However, all these tools are only as good as the people using them.  Make 2011 a better year by committing to personally stop texting and driving, so that you are not one of next year’s Florida traffic statistics.

 

Car Accidents, fatalities and injuries are down in Florida in 2009, but distracted driving remains an epidemic in the U.S.

According to the Florida Department of Highway Safety and Motor Vehicles (FLHSMV), fatalities caused by car accidents in Florida hit its lowest level on record in 2009. It appears that in comparison to 2008, Florida’s traffic crashes decreased by more than 3%, fatalities decreased by 14.1%, and injuries decreased by 1.2%. Also, Florida lead the nation with the highest rate of decrease in traffic fatalities in 2009. The FLHSMV recognizes that these statistics are affected by the economic climate, increased safety of vehicles, increased seat belt use, fewer vehicles on the road and other factors. These statistics are good news for Floridians, but more work can be done.

Florida still does not have a law in effect to address texting or cell phone use while driving, and our teens and younger adults are most at risk. According to a National Highway Traffic Safety Administration (NHTSA) study based on 2006 Centers for Disease Control (CDC) data, motor vehicle crashes are the leading cause of death for those between the ages of 3 and 34. In Florida, many bills were introduced in 2009 to address texting while driving but all failed. Florida is one of only twelve remaining states that do not have a law that addresses distracted driving, texting and cell phone use while driving. On September 21, 2010, Transportation Secretary, Ray LaHood kicked off a National Distracted Driving Summit in Washington, D.C. The summit will attempt to address the challenges and opportunities for national anti-distracted driving efforts. Click here for more traffic safety facts for 2009.

Florida has a New Fall Down Statute

Last month, Gov. Crist signed HB 689 into law.  This resulted in a new Florida Statute Section 768.0755, effective July 1, 2010, which requires that a person who slips and falls on a transitory foreign substance in a business establishment, to prove that the establishment had actual or constructive notice of the dangerous condition and should have taken action to remedy it.  Constructive knowledge may be proven by circumstantial evidence which shows that (1) the dangerous condition existed for such a length of time that the business establishment should have known about it; or (2) the condition occurred with regularity and was therefore foreseeable by the business establishment.  A transitory foreign substance could be something like melted ice cream, water, oil, ice, etc.  Typically, the business establishment, such as a supermarket store, will defend the case by taking the position that (1) the store had no notice that the substance was on the floor (ex. “Another customer must have just spilled the water, because we inspected and cleaned our floors 10 minutes before the fall.”) and (2) the person who fell should have seen the substance on the floor and was therefore was negligent for not looking where he or she were walking. 

Rear-end Collisions

Rear-end collisions are one of the most common types of car accidents. These accidents occur mainly when the drivers are distracted, speeding or are tailgating or otherwise following the other vehicle too closely. Drivers can be distracted by their radios, cell phones, children, passengers, eating and texting, and while they are tending to these distractions, they are not paying attention to the traffic in front of their vehicle.

A rear-end accident can result in major or minor damage to your vehicle, and it may not result in immediate injuries. However, rear-end collisions, even when they occur at low speeds, can cause severe and long lasting injuries that may affect your quality of life. Many times, people involved in a rear-end collision do not feel immediate pain, but begin to experience increasing pain and discomfort in various areas of their body during the hours following the collision.  Things such as headaches, neck pain, forgetfulness, back pain, shoulder pain or knee pain, jaw pain, numbness and tingling in the fingers or legs, are some of the symptoms that develop following a car accident. If you were involved in a car accident and you are experiencing any of these symptoms or other symptoms, you should seek medical treatment immediately. You should also take the steps to ensure that your legal rights will be protected down the road by contacting an accident lawyer as soon as possible after the accident and getting the advice of the lawyer.

Common Bicycle Accidents

Here in Pinellas County, we have the beautiful Fred Marquis Pinellas Trial to ride our bikes upon.  Unfortunately, elsewhere in our county we have few, if any bike paths or bicycle friendly roadways, but we do have thousands of bicycle enthusiasts, such as those who are members of the Suncoast Cycling Club, who are often seen riding in groups on the highways.  What this means is, not only does the bicyclist need to be especially careful, if not defensive, while riding, but folks driving cars and trucks need to pay special attention to look our for these bicyclists as well.  One of the most frequent biking accident we see in our personal injury practice is where a motor vehicle operator makes the left hand turn onto a road at a stop sign or red light, without double-checking to make sure that a bicyclist isn’t about to enter into their vehicle’s path of travel.  Your vehicle’s tinted window may prevent the bicyclist from making eye contact with you.  These accidents often result in serious, if not deadly injuries to the bicyclist.  So, wait to make your turn, check one last time for someone about to cross in front of your vehicle, and permit the bicyclist to cross the street safely.

Tired Truckers Cause Accidents

Of all of the causes of truck collisions, one of the most preventable gets the least press: driver fatigue—in other words, tired truckers.

Although federal law both limits the maximum number of hours that a truck driver is supposed to drive and prohibits truckers from driving if they are “impaired through fatigue,” the fact is that more and more big-rig drivers are taking to the highways without enough sleep. There are several reasons for this, including the relaxed industry regulation that has resulted in less-experienced truck drivers on the road. Before 2004, the federal government allowed truckers to drive no more than 10 consecutive hours. Statistics from the Federal Motor Carrier Safety Association (FMCSA) showed that the number of fatigue-related crashes jumped dramatically after eight hours of driving and continued to increase through the 10th hour allowed. Despite this evidence, the federal regulations were changed in 2004, and truck drivers are now allowed to drive up to 11 consecutive hours, meaning that there are more tired truckers on the road than ever.

As you might guess, the number of fatalities caused by large trucks has increased, with fatigue cited as a factor in 20% more accidents than under the old law. Interestingly, the FMCSA’s failure to consider the obvious (more time driving = more driver fatigue) has been cited by at least two federal courts that are considering whether these regulations should be allowed to continue.

The deregulation of the trucking industry has also resulted in increased competition among trucking companies, increasing the pressure on drivers to complete their routes quickly. Finally, changes in the ways that goods carried by trucks are distributed, such as the increased use of “just-in-time” delivery, have resulted in tighter deadlines for truck drivers than was the case in the past.

Taken together, all of these factors mean that the pressures on truck drivers to ignore the law and complete their deliveries, even if they are too tired to drive safely, will only increase.

What Type of Damages Can I Seek in a Personal Injury Claim?

In general, a negligence victim can recover compensatory damages and punitive damages in their personal injury claim. There are three types of compensatory damages an accident victim may recover: pain and suffering, medical bills and lost wages (and/or loss of earning capacity).

Damages for pain and suffering is the monetary value attributed to the  physical pain and discomfort and mental anguish and stress, including the loss of enjoyment of life, that an accident victim suffers as a result of an injury due to another person’s carelessness or negligence. This includes the physical pain resulting from bone fractures, spine injuries, neck injuries, back injuries, cuts, and internal organ injuries, as well as mental distress, anguish, anxiety, depression and embarrassment caused by the incident or accident, disfigurement and permanent scars.  If someone dies as a result of another’s negligence, certain of the surviving relatives are entitled to recover damages for their pain and suffering due to the loss of their loved one.  The monetary value of pain and suffering damages is subjective, but an experienced attorney can advise a negligence victim as to the approximate amount of pain and suffering damages appropriate for their particular case. Additionally, a negligence victim can recover for the pain and suffering they will experience in the future. Pain and suffering damages are also know as “noneconomic losses.”

Medical bill damages, also referred to as “medical special damages”are the actual medical bills that you incur in connection with treatment for your injuries as well as the medical bills you will incur in the future for ongoing care and treatment related to the injuries.

Lost wages or loss of earning capacity is the value of the income that a victim of negligence loses as a result of their injuries in the accident. A victim may miss work due to pain, doctors' appointments and therapies, or their injuries may be so severe that they can no longer work at all. A victim may recover these lost wages as well as their wages that they will lose in the future due to their inability to work, or their inability to earn the wage that they earned prior to the accident.

Punitive damages are governed by Florida Statute Section 768.72, which provides that a claim for punitive damages shall not be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. A negligent party may be held liable for punitive damages only if the jury finds by  clear and convincing evidence that the negligent party was personally guilty of intentional misconduct or gross negligence. In Florida, there are also caps on punitive damages which are governed by Florida Statute Section 768.73.

If the negligence victim’s case also involves the violation of a Florida Statute, the statute itself may provide for additional or alternative penalties or sanctions from the ones outlined above.

Should I sign a parental release so my child can attend the skate park?

Children in Florida and other states have been seriously injured, and even died, while participating in these types of activities. Most skate parks (and other similar commercial amusement-type enterprises), will require the parent of a minor child to sign a release of liability orm which is intended to release the business owner of the park and its employees from any and all liability in the event the child is injured while at the park. Up until December 2008, these release forms, also called "pre-injury releases" signed by the parent were generally considered to be enforceable by the courts in Florida so long as the release language was clear, unambiguous, and specifically stated that the park was being released from liability for its own negligence. In December 2008, the Florida Supreme Court decided in the case of Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), that a "pre-injury release" signed by the parent of a minor child is not enforceable against the minor child, or the minor child’s estate in any lawsuit brought against a commercial establishment (such as a motorsports or skate park) for injuries sustained by the child. Despite the ruling in the Kirton case, it is likely that commercial business operators of these types of sports parks may still require that you sign a release before allowing your minor child into the park. If your child does attend one of these parks, check the park out first to make sure that it is properly operated with sufficient staff, and that the park's safety rules and regulations are enforced.