Florida Cruise Ship Injury Statute of Limitations – How Long Do I have to File a Lawsuit for Cruise Ship Injuries and Cruise Ship Accidents on a Carnival, Royal Carribean, Princess or Norwegian Cruise Ship?

Florida cruise ship injury accident statute of limitations_fightsforyou.netEveryone loves to go on cruises as a relaxing vacation to all of the ports of call in the Eastern and Western Caribbean (Bahamas, Atlantis at Paradise Island, Turks and Caicos, Key West, Puerto Rico, St Thomas, St. Marten, St. Croix, Grand Cayman, St. Kitts, St. John, Bermuda, Jamaica, Dominican Republic, Haiti, Cancun Mexico, Aruba, Curacao, Barbados, Trinidad and Tobago, etc.), enjoying all the food, alcohol, activities for the kids and children, the spa and gym, laying out in the breeze on the pool deck, cruise tour excursions and shore excursions, and the comedy and theater shows.  Unfortunately, because of all the children running around the pool soaking wet, waiters and staff serving drinks that spill over, the various cruise sanctioned shore activities and excursions, and all the ramps and raised door thresholds, cruise ship accidents are bound to happen no matter what cruise line you vacation on, whether it is Carnival, Norwegian, Royal Caribbean, Princess, Celebrity, Holland America, Disney, Oceania, Costa, Cunard, MSC Cruises or Regent.

Some of the most common causes of Florida cruise ship accidents and Florida cruise ship injuries include the following:

  • Slip and fall on wet floors, wet decks and wet stairs;
  • Trip and fall on stairs, doorway thresholds, uneven decks and uneven hallways;
  • Assaults or batteries by cruise security or other passengers (including intoxicated and drunk passengers and cruise staff);
  • Sexual assaults or crimes (such as rape) due to inadequate or negligent security;
  • Shore excursion injuries and tour excursion accidents;
  • Tender injuries or when boarding cruise ships or docks;
  • Passengers consuming contaminated food and contracting food poisoning;
  • Cruise ship fires;
  • Cruise ship sinking’s; and
  • Passengers falling overboard (and possibly dying or being killed) due to being served too much alcohol by cruise bar staff.

FLORIDA CRUISE SHIP ACCIDENT STATUTE OF LIMITATIONS AND FLORIDA CRUISE SHIP INJURY STATUTE OF LIMITATIONS – TIME TO SUE A CRUISE LINE AND BRING A CRUISE INJURY LAWSUIT

One of the most common questions asked of a Florida cruise accident lawyer or Miami cruise injury attorney is how long do I have to file a claim or lawsuit against a cruise line (ie, the cruise ship injury statute of limitations) for passenger injuries sustained on a cruise ship – I need to file a lawsuit and sue a cruise ship line. Of note, the passenger’s cruise ticket and cruise contract documentation will usually contain in its fine print and small lettering that claims and lawsuits for bodily injury are required to be brought within one year of the accident and in the United States District Court for the Southern District of Florida, in Miami-Dade County, Florida.  In addition, the cruise ticket will also usually say that a passenger that suffers bodily injuries arising out of a cruise ship accident will have 180+ days (six months) to put the cruise line on notice of the accident.  Should these specific time frames not be complied with, a cruise line can move to dismiss a passenger’s lawsuit and they will usually prevail.

This is exactly what happened in the case of Racca v. Celebrity Cruises, Inc., 606 F.Supp.2d 1373 (S.D.Fla. 2009). In Racca, a passenger that was injured in a hallway sued Celebrity cruises, albeit almost two years after the accident occurred.  The cruise line moved for summary judgment claiming that the action should be dismissed because it was filed more than one year after the date of Plaintiff’s alleged injury which was in violation of the terms of Plaintiff’s ticket contract. The ticket contract at issue stated the following:

“No suit shall be maintainable … for any claim … of personal injury … unless written notice of the claim, with full particulars, shall be delivered … within six (6) months from the day the cause of action occurred, and in no event shall any such suit … be maintainable unless such suit shall be commenced (filed) within one (1) year from the day when the cause of action occurred….”

The Federal Court in Miami granted the summary judgment and dismissed the injured cruise passenger’s case, finding that the cruise accident lawsuit was filed in excess of the cruise ship statute of limitations period as reflected in the cruise ticket.

It should also be noted that Florida Court’s have held that even if you are a companion of the passenger that may have booked the cruise,  the travelling companion’s possession of the single cruise line ticket is sufficient to charge a passenger with notice of the ticket’s provisions notwithstanding  that a passenger fails to read the cruise ticket – the passenger who fails to read takes the risk of omission.

Moral of story: if you are an adult or minor child that is injured or killed (ie., wrongful death) on a cruise ship, whether you are sailing on Carnival, Royal Caribbean, Princess, Norwegian, Holland America, Disney Cruise Lines or any other cruise ship, know that your cruise ticket likely requires that cruise ship injury accident lawsuit be brought within one year of the accident (ie., cruise ship statute of limitations or time to sue) and that you give notice of the incident within six months of the cruise ship injury, for which you may require a Florida cruise ship accident attorney or Miami cruise ship injury lawyer to assist you in bringing a claim or lawsuit against your cruise ship operator to recover monetary damages for your injuries, medical bills, pain and suffering, etc.

I Was Injured in a Rear-End Car Accident in Miami Florida – What Florida Law Applies in Rear-End Collisions (ie., Florida Rear-End Accident Law) With a Car, Truck, Taxi, Motorcycle, Big Rig or 18 Wheeler?

Florida rear-end car collision_accident_fightsforyou.netThe traffic and congestion on South Florida roads is getting worse, especially the rush hour work commute on the Florida turnpike, I-95, I-75, I-4, State Road 27, State Road 41, Alligator Alley and US 1. When there is a lot of traffic, particularly cars, trucks, SUV’s. motorcycles, mopeds, go-cars, taxicabs, limousines, county buses, vans, 18 wheeler’s and big rigs constantly changing lanes and speeding to pass other motor vehicles,  Miami Florida rear-end car accidents are bound to happen. In fact, with the amount of cell phone use and texting while driving, and the rush that everyone is in to get to their destination so quickly, Florida rear-end collisions are very common (especially low speed collisions or fender benders with very little property damage) and can usually be avoided if the rear-end driver was simply paying attention, not speeding, not following too closely (ie., enough car lengths between their vehicle and your vehicle), staying in their lane and not cutting other vehicles off, yielding the right of way, not running through red lights or yellow lights, and braking in time when the traffic in front comes to a sudden stop or complete stop.

When one is involved in a rear-end collision in Florida due to a driver under the influence of drugs or alcohol (DWI or DUI), a question often asked of a Hialeah Florida rear-end accident law attorney or Miami rear-end collision lawyer, is whether they can be found liable or at fault for the accident and can be sued in a lawsuit for bodily injury (ie., pain and suffering and resultant medical bills, hospital bills, surgery, etc.) and motor vehicle property damage (such as when the car is considered a total loss) when they are the car in front or the middle car in a three car accident or pileup. Reason being, in a lot of low speed car collisions where the impact is minor and not serious, while you as the driver being rear-ended are not hurt (perhaps you have bruises, soreness, stiffness or soft tissue injuries such as neck or back pain, sprains and strains that eventually go away with treatment by a chiropractor, physical therapy or massage therapy), sometimes, passengers are not wearing seat belts and can be jolted around the car and thereby sustain injuries due to striking a portion of the car (dashboard, steering wheel or windshield), or the driver of the car that rear-ended you sometimes sustains serious permanent injuries (whiplash is common, head injuries, post concussive syndrome, broken bones and spine fractures, herniated and bulging discs, etc.) that are much worse than the rear-ended vehicle you are driving in – sometimes, fatalities or even death occurs due to Florida rear-end collisions and for which a wrongful death lawsuit or case may arise.  In these scenarios, the driver or passenger in the truck that rear-ended your vehicle could bring a lawsuit arising out of the Homestead rear-end car accident, wherein many of those rear-end car crash cases either go to trial or a settlement is reached with your car insurance carrier.

Question is, what is the Florida rear-end accident law or Florida rear-end collision law applicable to these types of Fort Lauderdale Florida rear-end car accidents? Common sense tells you that the car that rear-ended your vehicle would likely be at fault.  Well, your intuition would be correct, Florida law for the greater part of the last forty plus years said that in Orlando Florida rear-end car collisions, the rear-end driver (as well as owner under Florida’s dangerous instrumentality law) was presumed to be at fault and negligent in causing the car crash unless the presumption was rebutted by evidence that you as the driver of the vehicle in front (1) cut off the other vehicle or suddenly changed lanes; (2) you came to a sudden or unexpected stop or slow down in a place where it would not reasonably be expected; (3) the rear-ending vehicle suffered a mechanical failure (such as engine, brake or tire failure); or (4) you improperly stopped or illegally parked your vehicle in a manner that it was unexpectedly stopped in the middle of the road, street, bridge or highway such that you are the sole cause of the rear-end accident.

However, the Florida Supreme Court recently turned this established Florida rear-end accident law precedent on its head in the rear-end car and motorcycle collision cases of Cevallos v. Rideout, 107 So.3d 348 (Fla. 2012) and Birge v. Charron, 107 So.3d 350 (Fla. 2012), wherein the Court held that in Florida rear-end motor vehicle collision accidents, they are “substantively governed by the principles of comparative negligence such that the presumption of negligence that attached to a rear driver in a rear-end motor vehicle collision could be rebutted in a negligence action by production of evidence of the negligence on the part of the front driver.” Thus, in these Florida rear-end collision accident lawsuits, “where evidence is produced from which a jury could conclude that the front driver in a rear-end collision was negligent in bringing about the collision—or that the negligence of the rear driver was not the sole proximate cause of the accident—the presumption that the rear driver’s negligence was the sole proximate cause of the collision is rebutted, and all issues of disputed fact regarding comparative fault and causation should be submitted to the jury.” In fact, “regardless of whether an injury is caused by the fault of a front driver, a rear driver, or both, [the] comparative fault statute entitles a plaintiff to judgment ‘against each’ liable party, on the basis of that party’s percentage of fault.”

Moral of the Story: if you are injured and a fatality (ie., wrongful death) occurs due to a Miami Florida rear-end automobile accident or a Homestead Florida rear-end collision, whether you are a driver, passenger or owner of the vehicle in front that is rear ended, or are in the truck that rear-ends another motorcycle in a three car pileup, whether it happens in Hardee County, Hendry County, Hernando County, Highlands County, Hillsborough County, Holmes County, Indian River County, Jackson County, Jefferson County, Lafayette County, Lake County, Lee County, Leon County, Levy County, Liberty County, Madison County, Manatee County, Marion County, Martin County, Nassau County, Okaloosa County, Miami Beach, Hialeah, West Kendall, Homestead, the Florida Keys, Englewood, Highlands County, Florida City, Miami Shores, Fort Myers Beach, Miami Lakes, Everglades City, Key West or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that regardless of whether an injury is caused by the fault of a front driver, a rear driver, or both, the comparative fault statute entitles a plaintiff to judgment against each’ liable party on the basis of that party’s percentage of fault, to which this may require the retention of a Miami Florida rear-end accident lawyer or a Miami Beach rear-end collision injury attorney, given the many complexities involved in these types of cases and lawsuits.

Florida Slip Trip and Fall Grocery Store Injury Claims: What Does Florida Law Require (ie., Supermarket Injury Accident Law) if I Slip on Water or Fruit at a Supermarket Such as Walmart, Publix, Sedano’s,Target or Costco?

Florida Supermarket Slip Trip Fall_fightsforyou.net

Dramatization/Actor – Not An Actual Event

It is the holiday season now in South Florida, and many of us are shopping at outlet malls, strip malls, shopping centers, supermarkets and grocery stores. These retail establishments, including restaurants, bars and fast food eateries, are very busy this time of year and unfortunately wet floor accidents are bound to happen. Specifically in South Florida supermarkets and grocery stores such as Whole Foods, Winn-Dixie, Milam’s, Publix, Walmart, Costco, Sedanos, Presidente Supermercado and Target, one of the most common types of incidents that occurs is where one slips and falls on on a wet floor or water (especially if raining outside), grease, melted ice, milk, soup, oil, soda, food, fruit (grapes, tomatoes, eggs, banana peels, etc.), candy, debris or other type of transitory foreign substance that makes the floor slippery. These type of slip and fall accidents due to wet floors can happen in the aisles, by the check out lines and registers, various departments (candy, produce, dairy, deli, beauty care), restrooms, walking paths, parking lots, sidewalks, entrances, exits and lobbies. If slipping and falling on water happens, one may seek out the assistance of a Miami supermarket slip and fall injury lawyer or Fort Laduderdale Florida grocery store accident attorney to see what Florida’s supermarket injury accident law is on this type of wet floor case.

Of note, the law generally provides that a business owner (or the one in possession or control of it) has two duties towards a business patron or customer:

  • They must maintain their property in a reasonably safe condition (which includes the duty to use reasonable care to learn of the existence of any slippery and dangerous conditions on the premises by way of inspections at reasonable intervals of time); and
  • They must warn of a concealed peril (such as via wet floor signs) of which they either knew or should have known about and which could not have been discovered by the injured customer through the exercise of ordinary care.

However, when a Publix customer slips and falls on a slippery substance (could be an oily floor or greasy floor) as referenced above, the law recently changed and the customer’s Florida supermarket slip and fall accident case due to a wet floor became much harder to establish.  As of July 1, 2010, Florida Statute §768.0755 (premises liability for transitory foreign substances in a business establishment) now requires that a customer (also termed a business invitee) prove that the business had actual or constructive knowledge of the dangerous (ie., slippery) condition and should have taken action to remedy it — constructive knowledge may be proven by circumstantial evidence showing that:

  • The slippery or dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
  • The condition occurred with regularity and was therefore foreseeable.

Some facts within Florida case law which tends to show that a substance has been on the floor for a while could include darkened fruit (such as a banana peel), rotting, smudges, streaks, tracks and/or footprints through oil/water, candy that has been stepped on and squished, produce and other grocery items that have been stepped on, a frozen item that has melted (such as ice or frozen orange juice), and possibly where a puddle is so big that is is clear that the leak or source of the liquid/substance has been there for quite some time (such as from the ice machine, soda machine, or a leaky freezer or refrigerator).

If you are a Florida Publix grocery store customer who slips and falls on a wet floor, oily floor, greasy floor, puddle of water or some other slippery substance and you sustain personal injuries as a result, the types of damages recoverable for negligence claims and which a Miami Publix injury accident attorney or a Florida Walmart slip and fall injury lawyer may be able to assert a claim or lawsuit for include:

  • pain and suffering (both past and future, such as for a future neck or back surgery, spinal injuries (herniated and bulging discs, torn annulus, nerve injuries), head injuries, torn muscles, tendons and ligaments (including a torn labrum (SLAP tear) or rotator cuff), tendinitis, and broken bones (leg, hip, arm, knee, ankle, wrist, shoulder, vertebrae, toe, finger, foot and hand);
  • disability;
  • disfigurement (such as scars and/or loss of a leg or other limb);
  • mental anguish (could include psychological damages);
  • loss of capacity for the enjoyment of life (one may not be able to do the same things you used to);
  • hospital, nurse or other medical expenses, both past and future (medical bills, insurance liens, EMS/ambulance bills, etc.);
  • loss of earnings or wages (if you miss work due to the injury or going to a doctors appointment; loss of sick or vacation time);
  • loss of ability to earn money in the future (whether you can no longer work, or cannot perform the same job you used to); and
  • aggravation of a previously existing condition (if you had back or neck pain that is made worse).

A Florida resident or even a tourist on vacation down in South Florida must always remember that even though a Florida Publix slip and fall accident occurs, it does not mean you are always entitled to these types of personal injury damages. In fact, Florida law requires that one slipping and falling at a Miami Florida Walmart prove certain elements of a negligence claim in order to prevail, namely:

  • duty;
  • breach of that duty
  • damages (as discussed above); and
  • causation (ie., that ones failure to use due care actually caused the accident).

It should be noted that if you are a Florida Publix employee, Miami Walmart employee, Fort Lauderdale Target employee, Orlando Costco employee or Homestead Sedano’s employee, and you slip and fall on a wet floor, greasy floor, oily floor or other transitory foreign substance in the supermarket while working or on the job, and you sustain injuries from this Florida workplace accident, in general, you can not sue your employer arising out of this slip and fall, you are required to bring a Florida workers compensation claim. For an extensive discussion on Florida workers compensation law and Florida work accidents where one is injured on the job, see my previous article.

One final note as to discovery issues that may arise in a Florida slip and fall lawsuit or Florida trip and fall case against Publix, Walmart, Winn-Dixie, Home Depot, K-Mart, Sams Club, Costco, Walgreens, CVS or any other commercial establishment, in Publix Supermarkets, Inc. v. Santos, 118 So.3d 317 (Fla. 3d DCA 2013), a customer brought a recent lawsuit for common law negligence and negligent mode of operation against a Publix store located in Miami Florida, due to slipping and falling as a result of “old wet spinach or some other transitory substance” on the floor at a Miami Publix.  Within the Publix lawsuit, the customer sought the discovery of all slips and falls at the specific store where she fell, within the three years prior to her accident. Publix served the customer with its response to that interrogatory, which showed that no prior incidents occurred in the subject Publix store. The customer thereafter sought to depose Publix and requested that Publix produce all incident reports relative to any occurrence (similar to the one at issue in the lawsuit) in the Publix stores within the entire State of Florida. Publix objected and moved for a protective order, contending that the burden of proof standard set forth in section 768.0755, Florida Statutes (2011), did not require it to produce the information. The trial court ordered Publix to supplement its response to an earlier interrogatory, which was directed to prior incidents at the store, with information as to all of Publix’s stores statewide within the past three years. The Third District Court of Appeal reversed this ruling, holding that under section 768.0755, Florida Statutes, Publix only needed to respond as to slip and fall incidents at the specific business establishment (ie., store) at issue, not as to all similar incidents throughout all their Publix stores in the State of Florida.

Moral of Story: whether you live in Miami Beach, Hallandale, Hollywood, Davie, Westchester, West Kendall, Doral, Aventura, Boca Raton, Homestead, Key Biscayne, Key West, Orlando, Tampa, Naples, Miami Beach, Fort Myers, Weston, Pompano Beach, Hialeah or another area within Miami, Fort Lauderdale or Palm Beach, or somewhere in Miami Dade County, Broward County, Palm Beach County, Lee County or Monroe County, if you happen to be a Walmart customer that slips and falls on a wet floor, greasy floor or oily floor at at Miami supermarket or Florida grocery store, or if you slip and fall at a restaurant, shopping mall, hotel, store or other type of business establishment due to water, oil, fruit or other transitory foreign substance that makes the floor slippery, just know that these are the types of issues a Miami Costco slip and fall injury lawyer or Miami Florida Publix accident attorney will have to deal with in analyzing a particular accident and the supermarket injury accident law that may apply to a customer’s case or lawsuit.

Florida Uninsured Motorist Coverage: Does it Apply to a Florida Pedestrian Accident If I am Hit By a Car, Truck, Taxicab, Motorcycle or Other Motor Vehicle?

Florida Uninsured Motorist Coverage_Pedestrian_fightsforyou.netGiven the beautiful weather down here in South Florida, it is very common for us to be outside and taking in the South Miami sun and warm temperatures.  In fact, especially at places like South Beach, Miami Beach, Hollywood Beach, Naples, Key West and Fort Lauderdale Beach, pedestrians are out bike riding, skateboarding, in-line skating, rollerblading, walking on the sidewalks and boardwalks, running and jogging.  Unfortunately, when participating in these activities, pedestrians are hit by cars, trucks, motorcycles, bicycles, mopeds, segways, taxicabs, buses, vans and other motor vehicles, especially when crossing a street or walking in a crosswalk.  When these types of Miami Florida pedestrian accidents occur, such as accidents which can occur when one is injured on the job (ie., Florida work injury accidents), one of the primary questions asked of a Miami Florida pedestrian accident injury lawyer is can my Florida uninsured motorist coverage apply to pay for my medical bills (including nurse, hospital care, emergency room care and surgeries), lost wages or disability benefits, pain and suffering, mental anguish, disfigurement (scars), loss of enjoyment of life, etc.

The answer to this question will depend on the language within your insurance policy and how they define motor vehicle.  In general, so long as you are a pedestrian hit by a car, truck, taxicab, bus or van in Florida, if you have selected uninsured motorist automobile coverage or underinsured automobile coverage (UIM) from your automobile insurance company, your UM and/or UIM benefits should be applicable to provide you insurance benefits provided the motor vehicle that hit you has no insurance (uninsured) or too little insurance (underinsured) to cover your injuries and medical bills.  If your are in a Miami Florida pedestrian accident because you are struck by a motorcycle, moped or segway, or even a motor driven bicycle, as stated above, whether you will be entitled to take advantage of your uninsured motorist coverage will depend on the definition of motor vehicle within your Florida insurance policy. For an extensive discussion and analysis of Florida uninsured (UM) and underinsured (UIM) motorist coverage and the benefits Miami Florida injured motorists may be entitled to when in a car accident, see my previous article.

It should be noted that if you are a pedestrian and are working on the job when injured (ie., hit by a car, truck, taxi, etc., while delivering goods for Publix, Walmart, Costco, UPS, Fed Ex, Home Depot, Target, etc.), then depending on the type of motor vehicle that hit you, you may be able to secure your Florida pedestrian accident UM and/or UIM benefits.  You may also be entitled to Florida workers compensation benefits.  For an extensive discussion and analysis of common and frequently asked questions (FAQ) for employees injured on the job and Florida workers compensation claims and benefits, see my previous article.

In addition, if you are a Florida resident that owns a car, or are a tourist or non-Florida resident visiting Florida, and you are a pedestrian hit by a car, truck, van or other motor vehicle, then personal injury protection (PIP) benefits may also be available to you. For an extensive discussion and analysis on Florida personal injury protection (PIP) benefits under Florida’s motor vehicle no-fault law when injured in an automobile accident, see my prior article.

Moral of the Story: whether you live in Miami, Fort Lauderdale, Palm Beach, Miami Dade County, Broward County, Monroe County, Palm Beach County or any other area of Central Florida or South Florida, should you sustain injuries as a pedestrian in a Florida motor vehicle accident, car accident, trucking accident or motorcycle accident, you may wish to secure a Hialeah Florida car accident injury attorney or Miami Florida pedestrian accident injury lawyer to assist you with a potential claim for improper denial of your Florida uninsured or underinsured motorist benefits and/or other Florida car insurance benefits, if you have been denied insurance coverage arising out of your Florida pedestrian accident.

Florida’s Motorcycle Helmet Law – Florida Statute §316.211 – Equipment for Florida Motorcycle and Florida Moped Riders and Passengers

Florida's Motorcycle Helmet Law_fightsforyou.netNotwithstanding the risks of riding a motorcycle on Florida roadways without safety equipment, specifically, a motorcycle helmet to protect ones head from the catastrophic injures that can occur (most notably, head injuries such as post concussive syndrome and TBI (traumatic brain injury)) when involved in a Miami Florida motorcycle accident by being cut off by a car or hit by a truck, in October of 2000, the Florida legislature removed the requirement of wearing a motorcycle helmet to persons over 21 when certain requirements are met.

Florida’s Motorcycle Helmet Law: according to Florida Statute §316.211, the following are the important Florida motorcycle helmet safety regulations (also known as Florida Traffic Regulations) required under Florida law when operating a motorcycle on South Florida’s roadways:

  • In general, a person may not operate or ride (ie., as a passenger) upon a motorcycle unless the person is properly wearing protective headgear (ie., a motorcycle helmet) that complies with Federal Motorcycle Vehicle Safety Standard 218;
  • The general Florida motorcycle helmet law requirement above does not apply to persons riding within an enclosed cab or to any person 16 years of age or older who is operating or riding upon a motorcycle powered by a motor with a displacement of 50 cubic centimeters or less or is rated not in excess of 2 brake horsepower and which does not go faster than 30 miles per hour;
  • If you are over  21, you may operate or ride upon a motorcycle without wearing protective headgear (ie., a motorcycle helmet) so long as you are covered by an insurance policy providing for at least $10,000 in medical benefits for injuries incurred as a result of a crash while operating or riding on a motorcycle; and
  • If you are 16 years of age or older, you can operate or ride upon a moped without wearing protective headgear (ie., a moped or motorcycle helmet).

Moral of the Story: if you ride a motorcycle or operate a motorcycle on Florida roadways, in order to protect yourself from catastrophic injuries or a fatality (ie., wrongful death) due to a Homestead Florida motorcycle accident, you should probably wear protective headgear such as a motorcycle helmet, however, whether you are driving a motorcycle or merely riding as a passenger in Orlando, Kissimmee, Lake Buena Vista, Marco Island, Davie, Sunrise, Pembroke Pines, Parkland, Tamarac, Coral Springs, Hollywood, Allapattah, Miami Gardens, Aventura, Tamiami, Kendale Lakes, The Hammocks, Miami Beach, Hialeah, West Kendall, Homestead, the Florida Keys, Weston, Florida City, Cutler Bay, Miami Shores, Sunny Isles, Opa-locka, Miami Lakes, West Palm Beach, Key West or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that Florida’s Motorcycle Helmet Law, ie., Florida Statute §316.211, does not require you to wear a helmet if you are over 21 years of age and are covered by an insurance policy providing for at least $10,000 in medical benefits for injuries incurred as a result of a crash.

 

Statute of Limitations – How Much Time Do I have to Sue for Florida Wrongful Death Claims and Lawsuits Arising Out of a Car Accident?

Statute of Limitations_Florida Wrongful Death_fightsforyou.netUnfortunately, in the many accidents that occur every day in South Florida, whether it is a Miami Florida car accident, truck accident, boating accident, motorcycle accident, bicycle accident or pedestrian accident, people are killed or fatalities occur. When that happens, the case is converted to a Florida wrongful death claim as opposed to a survivor claim where one sustains serious or minor injuries but lives. When one is killed in a Naples, Florida car accident, a question always asked of a Hialeah Florida injury lawyer is how long do I have to file a wrongful death lawsuit or claim against the negligent or at fault party. This time period is called the Statute of Limitations or “time to sue.”

For Florida wrongful death claims and lawsuits, the statute of limitation periods applicable to these cases is governed by Florida Statute § 95.11(4)(d). According to this statute, the Florida Statute of Limitations period applicable to Florida wrongful death claims is two years from the date of death. Again, it does not matter what type of accident this is, whether a construction site accident involving scaffolding or a crane, pleasure boating accident involving personal watercraft, slip trip and fall accident, food poisoning accident or a pedestrian hit by a car on a sidewalk. However, according to Florida Statute § 95.11(10), the Florida Statute of Limitations for wrongful death claims arising out of intentional torts such as murder or manslaughter, can be brought at any time. For an extensive discussion on Florida Statutes of Limitations and their Affect on Florida Personal Injury Accidents and Cases, see my prior article.

Moral of the Story: if you are injured and a fatality (ie., wrongful death) occurs due to a Miami Florida automobile accident, whether you are a pedestrian hit by a motorcycle, a construction site worker that falls off a roof, a driver or passenger injured in a motorcycle accident, whether it happens in Tampa, Lehigh Acres, Venice, Sebring, Marco Island, Sanibel Island, Rotunda, Punta Gorda, Port Charlotte, Northport, Moore Haven, Lee County, Arcadia, Ave Maria, Avon Park, Bonita Springs, Cape Coral, Charlotte County, Clewiston, Collier County, DeSoto County, Lake Placid, Labelle, Immokalee, Kendale Lakes, The Hammocks, Miami Beach, Hialeah, West Kendall, Homestead, the Florida Keys, Englewood, Highlands County, Florida City, Hendry County, Miami Shores, Glades County, Fort Myers Beach, Miami Lakes, Everglades City, Key West or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that the Florida Statute of Limitations applicable to your Homestead accident claim or Hialeah injury lawsuit, is important to know as a claim can be barred if the Florida Statute of Limitations expires, to which this may require the retention of a Miami Florida accident lawyer or a Miami Beach injury attorney, given the many complexities involved when analyzing Florida’s statute of limitations (SOL) applicable to the various Florida wrongful death accident claims referenced above.

Florida Statute of Limitations and its Affect on Florida Personal Injury Accidents and Cases

Florida Statute of Limitations_fightsforyou.netWhen one is injured in a Florida accident, a question always asked of a Florida injury lawyer is how long do I have to file a lawsuit or claim against the negligent or at fault party. This time period is called the Florida Statute of Limitations, a time frame that the Florida legislature has assigned to a particular type of accident or cause of action (such as a car accident, bicycle accident, wrongful death, medical malpractice, uninsured or underinsured motorist claim, pedestrian accident, motorcycle accident, taxi accident, bus accident, van accident, construction site accident, etc.) and which restricts the amount of time an that an injured person can file a Florida lawsuit. Once this Florida Statute of Limitations time period expires, Florida Courts no longer have jurisdiction over the particular accident and lawsuits can no longer be filed. It should be noted that the statute of limitations period for different types of cases varies across the country, so the Florida Statute of Limitations time period applicable to a Key West bicycle accident can be quite different than a bicycle accident that occurs in another state. Additionally, there is also somethings called a Statute of Repose which is the ultimate time period upon which a Florida accident lawsuit can be filed — this is usually a time period that exceeds the Statute of Limitations and to which no lawsuit can be filed beyond this time period.

The Following are some of the Statute of Limitation periods applicable to Florida injury and accident lawsuits:

FLORIDA WRONGFUL DEATH LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(4)(d), the Florida Statute of Limitations period applicable to Florida wrongful death claims, is two years. However, according to Florida Statute § 95.11(10), the Florida Statute of Limitations for wrongful death claims arising out of intentional torts such as murder or manslaughter, can be brought at any time.

FLORIDA PERSONAL INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida personal injury claims (ie., negligence) is four years from the date of the accident.

FLORIDA MEDICAL MALPRACTICE LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(4)(b), the Florida Statute of Limitations period applicable to Florida medical malpractice claims (ie., medical, doctor, hospital or nurse negligence) is two years  from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

FLORIDA PRODUCTS LIABILITY (DEFECTS) INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(e), the Florida Statute of Limitations period applicable to Florida products liability accident claims (ie., arising out of the negligent design, negligent manufacturing, distribution, or sale of a product) is four years from the date of the accident. Moreover, according to Florida Statute § 95.031(2)(b), an action for products liability under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence, rather than running from any other date prescribed elsewhere in s. 95.11(3), except as provided within this subsection. Under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product.

All products, except those included within subparagraph 1. (aircraft used in commercial or contract carrying of passengers or freight, vessels of more than 100 gross tons, railroad equipment used in commercial or contract carrying of passengers or freight, and improvements to real property, including elevators and escalators, are not subject to the statute of repose provided within this subsection) or subparagraph 2 (any product not listed in subparagraph 1., which the manufacturer specifically warranted, through express representation or labeling, as having an expected useful life exceeding 10 years, has an expected useful life commensurate with the time period indicated by the warranty or label. Under such circumstances, no action for products liability may be brought after the expected useful life of the product, or more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product, whichever is later), are conclusively presumed to have an expected useful life of 10 years or less.

As to the products listed in subparagraph 1 (ie., aircraft, vessels, railroad equipment, elevators and escalators), except for escalators, elevators, and improvements to real property, no action for products liability may be brought more than 20 years after delivery of the product to its first purchaser or lessor who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product. However, if the manufacturer specifically warranted, through express representation or labeling, that the product has an expected useful life exceeding 20 years, the repose period shall be the time period warranted in representations or label.

FLORIDA SLIP TRIP AND FALL ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida slip and fall or  trip and fall accident claims (ie., negligence) is four years from the date of the accident.

FLORIDA CONSTRUCTION SITE INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida construction site injury claims (ie., scaffolding accidents, forklift accidents, flag man accidents and crane accidents due to the negligence of another) is four years from the date of the accident.

FLORIDA NURSING HOME NEGLIGENCE AND ABUSE LAWSUITS AND CASES:

In general, according to Florida Statute §400.0236, the Florida Statute of Limitations period applicable to Florida nursing home negligence and abuse claims is 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. In those actions in which it can be shown that fraudulent concealment or intentional misrepresentation of fact prevented the discovery of the injury, the period of limitations is extended forward 2 years from the time that the injury is discovered with the exercise of due diligence, but in no event for more than 6 years from the date the incident giving rise to the injury occurred.

FLORIDA ASSISTED LIVING FACILITY NEGLIGENCE AND ABUSE LAWSUITS AND CASES:

In general, according to Florida Statute §429.296, the Florida Statute of Limitations period applicable to Florida assisted living facility negligence and abuse claims is 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.  In those actions covered by this subsection in which it can be shown that fraudulent concealment or intentional misrepresentation of fact prevented the discovery of the injury, the period of limitations is extended forward 2 years from the time that the injury is discovered with the exercise of due diligence, but in no event not more than 6 years from the date the incident giving rise to the injury occurred.

FLORIDA CAR ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida car accident claims (ie., negligence) is four years from the date of the accident.

FLORIDA TRUCK ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida truck accident claims (ie., negligence) is four years from the date of the accident.

FLORIDA BICYCLE ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida bicycle accident claims (ie., negligence) is four years from the date of the accident.

FLORIDA MOTORCYCLE ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida motorcycle accident claims (ie., negligence) is four years from the date of the accident.

FLORIDA PEDESTRIAN ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida pedestrian accident claims (ie., negligence) is four years from the date of the accident.

FLORIDA CRUISE PASSENGER ACCIDENT INJURY LAWSUITS AND CASES:

In general, the Florida Statute of Limitations period applicable to Florida cruise passenger accident claims (ie., negligence) is one year from the date of the accident.  This limitations period is prescribed in the cruise contract documents and also usually includes a six month time period to put the cruise line on notice of the potential personal injury claim.

FLORIDA UNDERINSURED MOTORIST OR UNINSURED MOTORIST ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(2)(b), the Florida Statute of Limitations period applicable to Florida underinsured motorist or uninsured motorist accident claims (ie., a claim based on the breach of a written contract) is five years.

FLORIDA ASSAULT BATTERY OR INTENTIONAL TORT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(o), the Florida Statute of Limitations period applicable to Florida assault, battery (such as improper touching at a massage parlor or spa), false arrest, malicious prosecution, malicious interference, false imprisonment or any other intentional tort type claims, is four years from the date of the incident.

FLORIDA NEGLIGENT SECURITY OR CRIME VICTIM ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(3)(a), the Florida Statute of Limitations period applicable to Florida negligent security or crime victim accident claims (ie., being shot in the parking lot of a mall or commercial retailer, being robbed in a hotel, restaurant, or condominium, being beat up in a bar or other retail establishment, etc.) is four years from the date of the accident.

FLORIDA BOATING JET SKI OR OTHER MARITIME OR ADMIRALTY ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to 46 U.S.C.A. § 30106 , the Statute of Limitations period applicable to Florida boating, jet ski, personal watercraft, wave rider or any other type of  boating accident claim that occurs on navigable waters (ie., a civil action for damages for personal injury or death arising out of a maritime tort) is three years from the date of the accident.

FLORIDA LIBEL SLANDER OR DEFAMATION LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(4)(g), the Florida Statute of Limitations period applicable to Florida libel, slander or defamation claims is two years from the date of the defamatory statement.

FLORIDA CHILD ABUSE OR ADULT ABUSE ACCIDENT INJURY LAWSUITS AND CASES:

In general, according to Florida Statute § 95.11(7), the Florida Statute of Limitations period applicable to Florida child or adult abuse cases (as defined in s. 39.01, s. 415.102, or s. 984.03, or incest, as defined in s. 826.04), may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.

Moral of the Story: if you are injured or a fatality (ie., wrongful death) occurs due to a Miami Florida accident, whether you are a pedestrian hit by a motorcycle, a construction site worker that falls off scaffolding, a driver or passenger injured in a car or truck accident, whether it happens in Orlando, Kissimmee, Lake Buena Vista, Marco Island, Davie, Sunrise, Pembroke Pines, Parkland, Tamarac, Coral Springs, Hollywood, Allapattah, Miami Gardens, Aventura, Tamiami, Kendale Lakes, The Hammocks, Miami Beach, Hialeah, West Kendall, Homestead, the Florida Keys, Weston, Florida City, Cutler Bay, Miami Shores, Sunny Isles, Opa-locka, Miami Lakes, West Palm Beach, Key West or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that the Florida Statute of Limitations applicable to your Hialeah accident claim or Homestead injury lawsuit, is important to know as a claim can be barred if the Florida Statute of Limitations expires, to which this may require the retention of a Fort Lauderdale, Florida accident lawyer or a Miami Beach injury lawyer, given the many complexities involved when analyzing Florida’s statute of limitations (SOL) applicable to the various accident claims referenced above.

Florida Pedestrian Accident Law: Common and Frequently Asked Questions When Pedestrians are Hit by a Car, Truck, Van or Other Motor Vehicle

Florida Pedestrian Accident Law_fightsforyou.netAll too common on South Florida’s roadways, pedestrians and bicycle riders are hit by cars, trucks, vans, taxi’s, motorcycles, mopeds, scooters, golf carts, segways or even public school buses, while jogging, skateboarding, roller skating, rollerblading, in line skating, walking on a sidewalk or even while crossing a street or highway or using a crosswalk — to which the pedestrians sustain serious and catastrophic injuries (usually involving broken arms and elbows, broken hips, fractured knees and broken legs, ORIF surgery, head injuries, torn ligaments, torn tendons and rotator cuff or shoulder labrum injuries (SLAP tear), concussions, neck and back spinal surgeries (fusion, discectomy, decompression, laminectomy, ACDF, etc.), traumatic brain injuries (TBI), or even death) in these types of Florida pedestrian car accidents.  Believe it or not, a lot of these Florida pedestrian automobile accidents can be prevented because a good amount of them are caused by drivers who are not paying attention, drivers who are distracted, drivers who are talking or texting on their cellular phones, or drivers who are driving drunk, under the influence of drugs or alcohol (DUI) or driving while intoxicated (DWI). Sometimes, pedestrians are hit by cars near poorly marked off construction sites or road construction areas, or flag men are not doing their jobs by warning pedestrians of the dangerous road or construction site conditions.

Some of the most common causes of Hialeah Florida pedestrian accidents can include the following:

  • Drivers who are drunk, tired or sleepy, or simply distracted and not paying attention;
  • Drivers who are speeding, driving in a reckless manner, talking on a cell phone or texting on a cell phone;
  • Intersections that are dangerous and not properly marked (such as with a crosswalk) or controlled by traffic control devices (such as with yield signs, stop signs, school crossing signs or stop lights);
  • Road construction areas that are not barricaded off, properly worked by flag men or have insufficient lighting;
  • Obstructions on private residential and commercial properties that can block the view or sight of pedestrians or cars (such as overgrown trees, high fences or other artificially created conditions on the property); and
  • Failure of pedestrians to wear brightly colored clothing or utilize bicycle or jogging lights.

Some of the most common and frequently asked questions of a Miami Florida pedestrian accident lawyer when a pedestrian or bicycle is hit by a car, truck, motorcycle or other motor vehicle, include the following:

What is the definition of a pedestrian under Florida traffic law?

Under Florida Statute 316.003, a pedestrian is considered any person afoot, and for which Florida pedestrians are considered traffic while using any street or highway for purposes of travel. Florida Pedestrians are to use designated cross walks (any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface) when crossing the street. Of note, Florida pedestrians have the right of way in general as compared to car, trucks, vans, motorcycles or other motor vehicles — this right of way is described under Florida pedestrian accident law as the right of one vehicle or pedestrian to proceed in a lawful manner in preference to another vehicle or pedestrian approaching under such circumstances of direction, speed, and proximity as to give rise to danger of collision unless one grants precedence to the other.  In fact, pedestrians can utilize safety zones on the respective roadways which they are traveling, which are defined as the area or space officially set apart within a roadway for the exclusive use of pedestrians and protected or so marked by adequate signs or authorized pavement markings as to be plainly visible at all times while set apart as a safety zone. Florida pedestrians can also use designated side walks which are defined as those portions of a street between the curbline, or the lateral line, of a roadway and the adjacent property lines, intended for use by pedestrians.

What are a pedestrian’s responsibility under Florida law when crossing a street when a traffic light is green, yellow or red?

According to Florida Statute 316.075, a pedestrian facing a green light can cross the street or roadway (except when the green signal is a turn arrow) within any marked or unmarked crosswalk — to which all motor vehicles are required to yield the right of way to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.  If the light is yellow or red, a pedestrian is not to enter the crosswalk or roadway unless they have a proper pedestrian crossing signal.

If I improperly enter a crosswalk, road or highway as a pedestrian, do cars or other motor vehicles still have a responsibility to avoid hitting me under Florida pedestrian accident law?

Yes.  According to Florida Statute 316.130(15), even in this scenario where a pedestrian enters a crosswalk, highway, street or roadway in an improper manner, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle (such as a bicycle, a child riding a tricycle, skateboard, roller skates, rollerblades, etc.) and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person. This means that the driver of a taxicab, bus, motorcycle or other motor vehicle is in a better position to avoid serious injury or death to a pedestrian even when the pedestrian may not be following his or her duties under Florida pedestrian law. Thus, in a case where a pedestrian is crossing a roadway outside of a crosswalk, or is attempting to cross Florida’s interstates, turnpike or highways, the driver of the vehicle must still be paying attention and actively look for dangerous situations in the roadway, including pedestrians, so as to avoid hitting and killing them — which could subject the driver a Miami Florida wrongful death lawsuit filed by a Florida wrongful death accident lawyer.

Do Florida drivers have to yield the right of way to pedestrian highway construction workers?

Yes.  According to Florida Statute 316.079, every driver of a vehicle shall yield the right-of-way to a pedestrian worker and flagperson engaged in maintenance or construction work on a highway whenever the driver is reasonably and lawfully notified of the presence of such worker by a flag person and a warning sign or device.  Moreover, every driver of a vehicle on public roadways shall yield the right-of-way to an escort vehicle or pedestrian flag person that is engaged in the management of highway movements of an oversize vehicle permitted pursuant to s. 316.550, provided the driver is reasonably and lawfully notified of the presence of such vehicle or flag person.

What are a Florida pedestrian’s general responsibility under Florida pedestrian accident law?

According to Florida Statute 316.130, general requirements under Florida traffic law regarding pedestrians includes the following:

  • A pedestrian shall obey the instructions of any official traffic control device specifically applicable to the pedestrian unless otherwise directed by a police officer;

  • Pedestrians shall be subject to traffic control signals at intersections as provided in s. 316.075, but at all other places pedestrians shall be accorded the privileges and be subject to the restrictions stated under Chapter 316 of the Florida Statutes;

  • Where sidewalks are provided, no pedestrian shall, unless required by other circumstances, walk along and upon the portion of a roadway paved for vehicular traffic (ie., pedestrians must use a sidewalk if one is available);

  • Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the shoulder on the left side of the roadway in relation to the pedestrian’s direction of travel, facing traffic which may approach from the opposite direction (ie., Florida pedestrians must face traffic when no sidewalk is available);

  • No pedestrian or person shall stand in the portion of a roadway paved for vehicular traffic for the purpose of soliciting a ride, employment, or business from the occupant of any vehicle (ie, people selling water, fruit or other drinks in Miami road traffic);

  • No pedestrian or person shall stand on or in proximity to a street or highway for the purpose of soliciting the watching or guarding of any vehicle while parked or about to be parked on a street or highway;

  • The driver of a vehicle at an intersection that has a traffic control signal in place shall stop before entering the crosswalk and remain stopped to allow a pedestrian, with a permitted signal, to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger;

  • The driver of a vehicle at any crosswalk where signage so indicates shall stop and remain stopped to allow a pedestrian to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger;

  • If a traffic control signal is not in place or in operation and there is no signage indicating otherwise, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger. Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway;

  • No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield;

  • Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle;

  • Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway;

  • Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk;

  • No pedestrian shall, except in a marked crosswalk, cross a roadway at any other place than by a route at right angles to the curb or by the shortest route to the opposite curb;

  • Pedestrians shall move, whenever practicable, upon the right half of crosswalks;

  • No pedestrian shall cross a roadway intersection diagonally unless authorized by official traffic control devices, and, when authorized to cross diagonally, pedestrians shall cross only in accordance with the official traffic control devices pertaining to such crossing movements;

  • No pedestrian shall enter or remain upon any bridge or approach thereto beyond the bridge signal, gate, or barrier after a bridge operation signal indication has been given. No pedestrian shall pass through, around, over, or under any crossing gate or barrier at a railroad grade crossing or bridge while such gate or barrier is closed or is being opened or closed;

  • No pedestrian may jump or dive from a publicly owned bridge; and

  • No pedestrian shall walk upon a limited access facility or a ramp connecting a limited access facility to any other street or highway; however, this subsection does not apply to maintenance personnel of any governmental subdivision.

If I am blind, do cars and other vehicles have to completely stop when I am crossing the street as a Florida pedestrian?

Yes.  According to Florida Statute 316.1301, when blind persons are crossing the street or highway by way of a guide dog or walking cane/stick, the driver of every vehicle approaching the intersection or place where the pedestrian is attempting to cross shall bring his or her vehicle to a full stop before arriving at such intersection or place of crossing and, before proceeding, shall take such precautions as may be necessary to avoid injuring such pedestrian.

Do bicycle riders have to yield the right of way to Florida pedestrians while riding a bike on a sidewalk?

Yes.  According to Florida Statute 316.2065(10), a person propelling a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian.  For an extensive discussion on Miami Florida Bicycle Accident Law and common questions usually asked regarding Miami Florida bicycle accident injuries, see my previous post.

Do segway or other electric personal assistive mobility riders have to yield the right of way to Florida pedestrians while riding on a sidewalk?

Yes.  According to Florida Statute 316.2068, a person may operate such an electric mobility device such as a segway, on a sidewalk, provided that the person operating the device yields the right-of-way to pedestrians and gives an audible signal before overtaking and passing a pedestrian.

Do mopeds operated under human power have to yield the right of way to Florida pedestrians while riding on a sidewalk?

Yes.  According to Florida Statute 316.208, a person propelling a moped solely by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances, except that such person shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing a pedestrian.

Do golf carts have to yield the right of way to Florida pedestrians while riding on a sidewalk?

Yes.  According to Florida Statute 316.2126, golf carts and utility vehicles may operate on sidewalks adjacent to state highways only if such golf carts and utility vehicles yield to pedestrians and if the sidewalks are at least 5 feet wide.

If I am a pedestrian and am hit by a car or truck in Florida, can I secure pain and suffering damages for my Florida pedestrian car accident by way of a lawsuit?

Possibly. According to Florida Statute 627.737(2), if you are hit by a car or truck or any other vehicle with four or more wheels (excluding taxicabs, buses and limousines), a pedestrian plaintiff involved in a Florida pedestrian automobile accident may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease provided such injury or disease consists in whole or in part of: (a) Significant and permanent loss of an important bodily function; (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) Significant and permanent scarring or disfigurement; and/or (d) Death.

Of note, if you are a pedestrian that is hit by a motorcycle, bicycle, moped, scooter, tri-vehicle, segway or another type of motor vehicle with less than four wheels, or a taxicab, bus or limousine, you are not required to prove permanency or the other injuries above, in a Florida pedestrian accident, in order to recover past or future pain and suffering damages within a Florida lawsuit or claim.

Can I recover damages as a pedestrian even if the motor vehicle never hit me or my child?

Yes.  Even if a motor vehicle does not hit you, if you are forced to evade an accident and are injured in the process, the driver and/or owner of the motor vehicle can possibly still be held responsible for causing your injuries.

How do I pay my medical bills and get treatment following a Florida pedestrian accident if I do not have health insurance?

If you are hit by a car or truck and have your own car insurance, then you can secure Florida personal injury protection (PIP) benefits to cover your medical bills and lost wages, up to a maximum of $10,000.  If you do not own a motor vehicle and you do not live with a relative that has PIP insurance, and you are involved in a motor vehicle pedestrian accident because you were hit by a car or truck, then you may be eligible for PIP benefits from the owner or driver of the motor vehicle that hit you and caused your Florida pedestrian accident injuries, provided you are a Florida resident (if you are from another country or are on vacation and are a permanent resident of another state, you can not secure PIP benefits from the driver or owner of the vehicle that hit you).  If you are involved in a Florida pedestrian accident because a bicycle, motorcycle, scooter or moped hit you, then your own car insurance will not provide you Florida PIP benefits to cover your medical bills or lost wages, nor will the person’s insurance carrier that hit you. For more on Florida’s new personal injury protection (PIP) law and Florida personal injury protection benefits, see my previous article.

How do I pay my medical bills and get treatment following a Florida pedestrian accident if I was hit by a car, truck, motorcycle or other motor vehicle that had no automobile insurance coverage (uninsured motorist), did not have enough insurance coverage (underinsured driver) or leaves the scene of the accident (ie., a Miami Florida hit and run pedestrian accident)?

If you own a motor vehicle and you have Florida uninsured motorist coverage (UM) and/or Florida underinsured motorist coverage (UIM), you may be able to make a claim against your own car insurer to cover your medical bills, lost wages, pain and suffering, etc. For an extensive discussion on Florida Uninsured and/or Underinsured Motorist Automobile Insurance Coverage, see my previous article.

If I am injured in a Florida pedestrian car accident, and I bring a lawsuit against the vehicle that hit me, can I secure punitive damages?

Possibly. In order to recover punitive damages, you would generally need to show that the driver that hit you was willful, wanton and reckless in their driving, such as when one  drives drunk, is driving under the influence of drugs or alcohol or prescription medication (DUI), or while driving while intoxicated (DWI).

How long do I have to file a Florida pedestrian accident case if I sustained serious injuries?

In general, four years.  The Florida statute of limitations for lawsuits filed as a result of injuries sustained in a Florida pedestrian accident (ie., general negligence), is four years.

What happens if I am involved in a Florida pedestrian accident when working on the job or in the course and scope of employment?

If you are riding a bicycle as part of your job (such as delivering newspapers) or simply walking on the street or sidewalks as part of your sales job, or perhaps you are a flag person on a construction site, if you are hit by a car, taxi, truck or other motor vehicle, you would likely be entitled to Florida workers compensation benefits.  In this type of Florida work accident, not only could you be entitled to have your lost wages and medical bills paid as workers compensation benefits, but you may also still bring a claim or lawsuit against the car owner or driver that hit you. For an extensive discussion on Florida workers compensation law and Florida work accidents where one is injured on the job, see my previous article.

Moral of the Story: if you are injured or a fatality (ie., wrongful death) occurs due to a Miami Florida pedestrian accident, whether you are a pedestrian that was hit by a car or a construction site worker that is struck by a vehicle while working on a street or highway, if it happens in Orlando, Lakeland, Tampa, Fort Myers, Naples, Jacksonville, Palm Coast, Sarasota, Pensacola, Hollywood, Palm Beach Gardens, Panama City, Ocala, Miami Gardens, Aventura, Miami Beach, Hialeah, West Kendall, Homestead, the Florida Keys, Weston, Florida City, Cutler Bay, Sunny Isles, Miami Lakes, West Palm Beach, Key West or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that pedestrians may have options available under Florida pedestrian accident law that may require the retention of a Fort Lauderdale, Florida pedestrian accident lawyer or a Miami Beach pedestrian injury lawyer, given the many complexities involved when injured due to a pedestrian car accident, and the unknown of whether a Florida pedestrian injury insurance claim is possible given Florida’s four year statute of limitations (SOL) for Florida pedestrian accident claims.

 

Florida Medical Malpractice Law: Common and Frequently Asked Questions Regarding Lawsuits For Injury or Wrongful Death Due to Doctor, Hospital or Nurse Medical Negligence

Florida Medical Malpractice Law _Statute of Limitations_fightsforyou.netIn the many hospitals in the State of Florida, as well as in the multitude of urgent care and personal injury clinics popping up, medical malpractice can happen in South Florida and all over the country. Medical malpractice involves negligence litigation where a hospital, doctor, nurse practitioner, dentist, psychiatrist, anesthesiologist or other medical provider violates the accepted standards of care (which requires expert testimony to prove such medical negligence at trial) and acts in a negligent manner, and which then leads to catastrophic injuries or even death.

Some of the most common injuries and causes of medical malpractice in the State of Florida can include the following:

  • Failing to properly deliver a baby or newborn resulting in birth-related injuries (including birth-related neurological injuries, cerebral palsy, shoulder dystocia, brachial plexus injuries, forceps or vacuum injuries, cystic fibrosis, cephalohematoma, subconjunctival hemorrhage, developmental delay, newborn persistent pulmonary hypertension, spinal cord injuries, jaundice, seizures, erb’s palsy, hypoxia (brain damage), nerve injury damage, paralysis, stillbirth, fetal distress, C-section issues, injuries to the mother (such as preeclampsia, and eclampsia in the mother) and other birth injuries;
  • Failure to listen to the patient and recognize symptoms;
  • Failure to examine a patient’s medical history;
  • Failure to interpret tests in a proper manner;
  • Ordering a wrong test for a patient;
  • Failing to monitor a patient after surgery or failing to provide the appropriate post surgical care (which can result in infections from catheters or infections at the surgical wound, sepsis, internal bleeding, necrosis of tissue, blood clots, deep vein thrombosis’, air embolisms and pulmonary embolisms);
  • Pharmacy and medication errors (involving the wrong dosage, wrong medication, label errors and insufficient medical history);
  • Surgical errors (such as leaving a surgical instrument in you, operating on the wrong body part, limb or patient, and post-surgical infections);
  • Leaving foreign objects or bodies in you after surgery (such as a sponge, clamp, plastic glove, surgical needle, forceps, tubing, medical device, etc.);
  • Improper care after a surgical procedure;
  • Lab test errors regarding tissue, blood or urine samples;
  • Failure of nurses, doctors, surgeons, interns or support staff to maintain hygiene and wash their hands;
  • Errors by a nurse practitioner;
  • Errors by a physicians assistant;
  • Errors by a midwife;
  • Errors by a medical doctor (M.D.), doctor of osteopath (D.O.), orthopedic, radiologist, gynecologist, obstetrician, cosmetic surgeon, plastic surgeon, neurologist, neurosurgeon, podiatrist, cardiologist, urologist, psychiatrist, etc.;
  • Errors in administering anesthesia during a surgical procedure;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of a medical condition;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of cancer (such as pancreatic cancer, breast cancer, cervical cancer, colon cancer, lung cancer, liver cancer, bone cancer, gall bladder cancer, gastrointestinal cancer, brain cancer, ovarian cancer, uterine cancer, bladder cancer, kidney cancer, lymphoma, mesothelioma, myeloma, thyroid cancer, prostate cancer, skin cancer (melanoma, basal cell or squamous cell), brain tumors, stomach cancer, testicular cancer and vaginal cancer);
  • Failing to diagnose, delayed diagnosis or misdiagnosis of stroke or heart attack symptoms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of diseases, viruses, blood disorders (leukemia) and blood infections;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of blood clots, circulation problems and aneurysms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of bacterial  infections or viral infections;
  • Failing to fully evaluate, treat or monitor a patient;
  • Failing to properly sanitize medical and surgical instruments;
  • Errors involved in blood transfusions;
  • Errors regarding nerve blocks;
  • Errors involved in treating kidney problems (including dialysis errors);
  • Medical device issues involving the design, maintenance or manufacturing, ie., a product defect (can include heart devices, heart monitors, pacemakers, defibrillators, stents, drug-coated stents, drug-eluting stents, artificial valves, cardiac devices, radiological devices, artificial joints, Mirena IUD issues, bone implants (Medtronic Infuse Bone Graft) hip implants (metal on metal hip replacements, DePuy ASR hip implant, Stryker Rejuvenate and ABG II modular-neck stem implants or Zimmer Durom Cup hip replacement implant), jaw implants, breast implants, cosmetic implants, pain pumps, knee replacements (Zimmer NexGen knee implant), respiratory devices, Avaira contact lenses, surgical mesh, transvaginal mesh, Artelon CMC Spacer devices, Bard IVC filters, and hardware implantation for broken bone surgeries or spinal surgeries);
  • Dangerous and defective pharmaceutical drugs, ie., a product defect (can include such drugs as GranuFlo (NaturaLyte), Serzone, diethylstilbestrol (DES)/stilboestrol, Digitek, Tequin, Levaquin, Paxil, Trasylol, Claravis (Chantix), Vioxx, Actos, Ortha Evra, Baycol, Pradaxa, Fosomax, Allopurinol (Zyloprim), Topamax (Topiramate), Fen-Phen, Lexapro (escitalopram), phenylpropanolamine, Yasmin (Yaz or Ocella), Zoloft (sertraline), ;
  • Emergency room (ER) and hospital errors (due to the under-staffing, over-working and communication issues between medical personnel; vague discharge instructions; delayed treatment that causes fatalities or failure to follow up with the patient);
  • Errors involved in gastric bypass surgeries;
  • Errors involved in Lasik eye surgery;
  • Errors involved in dental surgery;
  • Lack of informed consent; and
  • Nursing home errors, neglect and abuse.

What is the Florida Statute of Limitations (ie., how much time a patient has to file a lawsuit) applicable under Florida medical malpractice law?

In general, Florida medical malpractice law states that a patient has two years to file a lawsuit due to a doctor’s or hospital’s negligence. According to Florida Statute 95.11(4)b), if someone sustains an injury or is killed due to the negligence of a Florida medical practitioner (ie., medical negligence), under Florida medical malpractice law, a Miami Florida medical malpractice attorney has two years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

Under Florida medical malpractice law, an “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

What damages can be secured if a patient is injured due to the medical negligence or medical malpractice of a Florida doctor, hospital, nurse or other medical practitioner?

Should a patient be injured as a result of medical malpractice and they hire a Hialeah Florida medical malpractice attorney, and a lawsuit is filed, the types of damages that can be secured can include:

  • pain and suffering (both past and future, such as for a future surgery);
  • disability;
  • disfigurement (such as scars and/or loss of a leg or other limb);
  • mental anguish (could include psychological damages);
  • loss of capacity for the enjoyment of life (one may not be able to do the same things you used to);
  • hospital, nurse or other medical expenses, both past and future (medical bills, insurance liens, EMS/ambulance bills, etc.);
  • loss of earnings or wages (if you miss work due to the injury or going to a doctors appointment; loss of sick or vacation time);
  • loss of ability to earn money in the future (whether you can no longer work, or cannot perform the same job you used to);
  • aggravation of a previously existing condition (if you had back or neck pain that is made worse);
  • Punitive damages (although the threshold to prove this type of damage is quite high, they can be awarded if the case is made that a doctor knowingly behaved in a harmful way that caused malpractice or negligence);
  • Wrongful death damages (assuming a death is caused by the medical malpractice or doctor negligence).

What is the definition of a healthcare provider covered under Florida’s Medical Malpractice Act?

According to Florida Statute 766.202(4), a healthcare provider means any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395; a birth center licensed under chapter 383; any person licensed under chapter 458 (medical doctor’s — ie., M.D.’s), chapter 459 (doctor of osteopath — D.O.’s), chapter 460 (chiropractor — D.C.), chapter 461, (podiatrist — ie., a foot doctor)  chapter 462 (naturopathic treaters such as dietetics, psychotherapist, hydrotherapist, etc.), chapter 463 (eye doctors – ie., optomestrist’s), part I of chapter 464 (nurses), chapter 466 (dentists), chapter 467 (midwifes), part XIV of chapter 468 (orthotics and/or prosthetics), or chapter 486 (physical therapists); a clinical lab licensed under chapter 483; a health maintenance organization certificated under part I of chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by a doctor, physician or other medical provider’s medical negligence?

According to Florida Statute 766.102(1), in any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

(2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

(b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 766.103.

(3)(a) As used in this subsection, the term:

1. “Insurer” means any public or private insurer, including the Centers for Medicare and Medicaid Services.

2. “Reimbursement determination” means an insurer’s determination of the amount that the insurer will reimburse a health care provider for health care services.

3. “Reimbursement policies” means an insurer’s policies and procedures governing its decisions regarding health insurance coverage and method of payment and the data upon which such policies and procedures are based, including, but not limited to, data from national research groups and other patient safety data as defined in s. 766.1016.

(b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the plaintiff is not admissible as evidence in any medical negligence action. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

(4) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by an emergency room doctor, physician, nurse or other emergency room medical provider’s medical negligence, when responding to a sudden medical emergency?

According to Florida Statute 768.13 (Florida’s Good Samaritan law), an emergency room doctor or other personnel must act with a reckless disregard (could be willful or wanton conduct) to the consequences of their medical diagnosis and treatment.  Under Florida Statute 768.13(2)(a) and 2(b), any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

Florida Statute 768.13(2)(b)(1) Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

Florida Statute 768.13(2)(b)(3) For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

Florida Statute 768.13(2)(c)(1) Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of his or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another.

What is the definition of medical malpractice or medical negligence under Florida’s Medical Malpractice Act, Chapter 766 of the Florida Statutes?

According to Florida Statute 766.106(1)(a), a “Claim for medical negligence” or “claim for medical malpractice” means a claim arising out of the rendering of or the failure to render medical care or services.

Can I sue a hospital for the medical negligence of its employee’s or agents?

Yes.  Florida Court’s have opined that that the legislature, in enacting section 766.102, and the Medical Malpractice Reform Act in general, intended that the negligence of a hospital’s agents acting in the course of their employment should be treated as the negligence of the hospital, to which the hospital can be held vicariously liable.

What is informed consent and what is required of doctors and physicians under Florida law?

Florida Courts have noted that a physician has an obligation to advise his or her patient of the material risks of undergoing a medical procedure, and that unless a person knows the risks and dangers of such a procedure, “consent” does not represent a choice and is ineffectual under Florida law.

In fact, the Florida legislature has codified the doctrine of medical informed consent in general under Florida Statute 766.103, which states the following (this does not apply in a “Good Samaritan” situation for emergency medical care):

(3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, dentist licensed under chapter 466, advanced registered nurse practitioner certified under s. 464.012, or physician assistant licensed under s. 458.347 or s. 459.022 in an action brought for treating, examining, or operating on a patient without his or her informed consent when:

(a) 1. The action of the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained; and

2. A reasonable individual, from the information provided by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopathic physicians, chiropractic physicians, podiatric physicians, or dentists in the same or similar community who perform similar treatments or procedures; or

(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in accordance with the provisions of paragraph (a).

(4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent.

(b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.

Do all Florida doctors and physicians have Florida medical malpractice insurance?

In general, no. According to Florida Statute 458.320, while doctors are required to have policies of insurance of $100,000 per claim or $300,000 in the aggregate (this requirement is $250,000 with an aggregate of $750,000, for a doctor or physician with staff privileges), just to practice medicine in this State, they can meet this requirement by proving they have other assets (such as letters of credit), or they can simply be able to respond to a judgment in the baseline amounts.  Doctors who avoid the Florida medical malpractice insurance requirement are also required to post a notice in their office in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or to provide a written statement to any person to whom medical services are being provided. Such sign or statement shall state: “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. YOUR DOCTOR HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under Florida law subject to certain conditions. Florida law imposes penalties against noninsured physicians who fail to satisfy adverse judgments arising from claims of medical malpractice. This notice is provided pursuant to Florida law.”

Moral of the Story: if you are injured or a wrongful death occurs due to medical malpractice, doctor medical negligence, nurse medical negligence, hospital medical negligence or other medical and healthcare professional type neglect, whether the Florida medical malpractice or Florida medical negligence happens in Deltona, Daytona, Fort Pierce, Brandon, Orlando, Lakeland, Tampa, Fort Myers, Naples, Jacksonville, Palm Coast, New Port Richey, Sarasota, Pensacola, Hollywood, Port Charlotte, Palm Beach Gardens, Panama City, Ocala, Cape Coral, Miami Gardens, Saint Augustine, Aventura, Miami Beach, Hialeah, Winter Park, Altamonte Springs, Port Orange, West Kendall, Homestead, the Florida Keys, Titusville, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that patients who are seriously and catastrophically injured in Florida medical malpractice and medical negligence accidents may have options available under Florida law that may require the retention of a Miami Florida medical malpractice lawyer, a Fort Lauderdale Florida medical malpractice birth-related injury attorney, a Palm Beach Florida failure to diagnose cancer lawyer, or a Miami Beach misdiagnosis medical negligence attorney, given the many complexities involved when injured due to medical malpractice and a doctors neglect, and the unknown of whether a Florida medical malpractice insurance claim is possible given Florida’s two year statute of limitations (SOL) for Florida medical malpractice claims.

Florida Bicycle Accident Law: What Florida Law Applies if Injured in a Bike or Pedestrian Accident?

Florida Bicycle Accident Law_fightsforyou.net

Dramatization/Actor – Not An Actual Event

Given that us Floridians and all of the out of state vacationers and non-residents take advantage of the wonderful weather down here in South Florida, we are always participating in activities such as water sports, boating, wave riding, ATV riding, skate boarding, in-line skating, rollerblading and bicycling. However fun these activities may be, they can involve substantial risks, most notably, bicycling on our public roads (given the few bike paths we have) wherein Florida bike riders have sustained catastrophic injuries, head injuries, neck injuries, leg injuries, knee injuries, ankle injuries, elbow injuries, brain injuries, spinal cord injuries, road rash, broken arms, fractured bones and sometimes even death.  Some of the most common causes of South Florida bicycle accidents include the following:

  • Being in a motor vehicle accident and getting hit by a car, truck, taxi, limo, van, bus or motorcycle;
  • Road defects (such as cracks, sand, gravel, road resurfacing, potholes, street grooves, uneven sidewalks, standing or pools of water, manhole imperfections and raised surfaces);
  • Debris in the roadways;
  • View obstructions (such as trees, bushes, parked cars and utility poles);
  • Running over railroad tracks;
  • A defective bicycle part or component (such as the tires, wheels, pedals, rims, brakes, chain, frame, handle bars or seat); and
  • Riding a bicycle under the influence of drugs or alcohol (ie. drunk).

When Miami Florida bicyclists or vacationers are involved in bicycle accidents (especially in resort and vacation areas such as South Beach, Miami Beach, Clearwater, Fort Lauderdale Beach, and Key West), some of the most common and frequently asked questions of a Miami Florida bicycle accident attorney or Florida Keys bicycle injury attorney include the following:

If I am in a Miami Florida bicycle accident and am hit by a car or truck because they were not paying attention or they failed to yield the right of way, what insurance can be applicable?

If you are struck by a car or truck, you MAY be entitled to personal injury protection benefits (PIP) from the driver or owner of the vehicle that hit you.  If you owned a vehicle at the time of the accident, then you would be able to claim your Florida personal injury protection benefits under your own car insurance policy. For more on Florida’s new personal injury protection (PIP) law, see my previous article.

You may also be entitled to additional insurance coverage if you had Florida uninsured motorist coverage or Florida underinsured motorist coverage, ie., Florida UM or UIM benefits, should the car or truck that hit you not have any insurance or they simply did not have enough to cover the medical bills and bicycle accident injuries sustained (ie., your pain and suffering).  You could also bring a liability lawsuit against the truck or car driver/owner should they have been negligent in causing or contributing to your bicycle accident.

If a car, truck, bus, motorcycle or limo does not strike my bicycle but causes me to swerve and I am injured in a Homestead Florida bicycle accident, can I still recover from the driver or owner of the motor vehicle?

Possibly.  In a bicycle accident of this sort, you can still pursue a liability lawsuit against the driver or owner of the vehicle who caused you to crash and sustain injuries, even if they did not make contact with your bicycle.  In fact, if the driver of the vehicle leaves the scene and this becomes a “hit and run” or “phantom vehicle” accident, you may still be able to pursue a claim against your own car insurer if you had Florida uninsured or underinsured motorist coverage. For an extensive discussion on Florida Uninsured and/or Underinsured Motorist Insurance Coverage, see my previous article.

What is the time limit (ie., the statute of limitations) for filing a Florida bicycle accident lawsuit arising out of the negligence of another bicyclist or a motor vehicle ?

Under Florida Statute 95.11(3)(a), the statute of limitations for negligence actions in the state of Florida is four years.

What is the time limit (ie., the statute of limitations) for filing a Florida bicycle accident lawsuit arising out of a defective bicycle part (ie., product liability)?

Under Florida Statute 95.11, the statute of limitations for product defect actions in the state of Florida is four years.

What is the definition of a bicycle under Florida law, in relation to Florida’s traffic laws?

According to Florida Statute 316.003(2), a bicycle is defined as every vehicle propelled solely by human power, and every motorized bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. The term does not include such a vehicle with a seat height of no more than 25 inches from the ground when the seat is adjusted to its highest position or a scooter or similar device. No person under the age of 16 may operate or ride upon a motorized bicycle.

What is the definition of a bicycle path under Florida law?

According to Florida Statute 316.003(63), a bicycle path is defined as any road, path, or way that is open to bicycle travel, which road, path, or way is physically separated from motorized vehicular traffic by an open space or by a barrier and is located either within the highway right-of-way or within an independent right-of-way.

As a Florida bike rider, do I have to obey the traffic laws as if I was a motor vehicle?

Yes.  According to Florida Statute 316.003, a bicycle is defined as a vehicle for purposes of Florida’s Uniform Traffic Control Law. As such, a cyclist must follow the traffic rules common to all drivers, as well as the rules adopted specially for bicycles.  According to Florida Statute 316.2065(1), a cyclist has all of the rights to the roadway applicable to any driver, except as to the special regulations for bicycles. Thus, a person riding a bicycle must obey all traffic control devices such as stop lights, stop signs, yield signs, railroad crossing signs, etc.

As a Florida bicycle rider, do I have to have a permanent seat attached to my bicycle?

Yes. According to Florida Statute 316.2065(2), a person operating a bicycle may not ride other than upon or astride a permanent and regular seat attached thereto.

How many people may ride on a bicycle under Florida law?

According to Florida Statute 316.2065(3)(a), a bicycle may not be used to carry more persons at one time than the number for which it is designed or equipped, except that an adult rider may carry a child securely attached to his or her person in a backpack or sling. Moreover,  a bicycle rider must carry any passenger who is a child under 4 years of age, or who weighs 40 pounds or less, in a seat or carrier that is designed to carry a child of that age or size and that secures and protects the child from the moving parts of the bicycle.

If I am under 16 years old, do I have to wear a bicycle helmet under Florida law?

Yes.  According to Florida Statute 316.2065(3)(d), a bicycle rider or passenger who is under 16 years of age must wear a bicycle helmet that is properly fitted and is fastened securely upon the passenger’s head by a strap and that meets the federal safety standard for bicycle helmets, final rule, 16 C.F.R. part 1203. A helmet purchased before October 1, 2012, which meets the standards of the American National Standards Institute (ANSI Z 90.4 Bicycle Helmet Standards), the standards of the Snell Memorial Foundation (1984 Standard for Protective Headgear for Use in Bicycling), or any other nationally recognized standards for bicycle helmets adopted by the department may continue to be worn by a bicycle rider or passenger until January 1, 2016. As used in this subsection, the term “passenger” includes a child who is riding in a trailer or semitrailer attached to a bicycle.

Under Florida law, if I am 16 years old or older, do I have to wear a bicycle helmet when operating a bicycle?

No.

Under Florida law, can I ride my bicycle while being pulled by a motor vehicle?

No.  According to Florida Statute 316.2065(4), no person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle may attach the same or himself or herself to any vehicle upon a roadway.

If I am riding my bike on the street or roadway under the speed of traffic, can I still ride my bike on the roadway?

Yes.  According to Florida Statute 316.2065(5)(a), any person operating a bicycle upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride in the lane marked for bicycle use or, if no lane is marked for bicycle use, as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:

1. When overtaking and passing another bicycle or vehicle proceeding in the same direction.

2. When preparing for a left turn at an intersection or into a private road or driveway.

3. When reasonably necessary to avoid any condition or potential conflict, including, but not limited to, a fixed or moving object, parked or moving vehicle, bicycle, pedestrian, animal, surface hazard, turn lane, or substandard-width lane, which makes it unsafe to continue along the right-hand curb or edge or within a bicycle lane. For the purposes of this subsection, a “substandard-width lane” is a lane that is too narrow for a bicycle and another vehicle to travel safely side by side within the lane.

If I am riding on a one-way street or highway, do I have to ride on the left hand edge of the road?

Yes.  According to Florida Statute 316.2065(5)(b), any person operating a bicycle upon a one-way highway with two or more marked traffic lanes may ride as near the left-hand curb or edge of such roadway as practicable.

Can I ride my bike along side more than one bike rider on a public street or roadway?

In general, no.  According to Florida Statute 316.2065(6), persons riding bicycles upon a roadway may not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles. Persons riding two abreast may not impede traffic when traveling at less than the normal speed of traffic at the time and place and under the conditions then existing and shall ride within a single lane.

If I ride my bike at night, do I need front lamps?

Yes. According to Florida Statute 316.2065 (7), every bicycle in use between sunset and sunrise shall be equipped with a lamp on the front exhibiting a white light visible from a distance of at least 500 feet to the front and a lamp and reflector on the rear each exhibiting a red light visible from a distance of 600 feet to the rear. A bicycle or its rider may be equipped with lights or reflectors in addition to those required by this section.

If I am riding a bicycle on a sidewalk or crosswalk, do I have the rights and duties of a pedestrian?

Yes.  According to Florida Statute 316.2065(9), a person propelling a vehicle by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances.

If I am riding a bicycle on a sidewalk or crosswalk, do I have to yield the right of way to pedestrians?

Yes.  According to Florida Statute 316.2065(10), a person propelling a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian.

Under Florida law, if I am riding a bicycle on a sidewalk or crosswalk, do I have to watch out for roller skaters and skate boarders?

Yes.  According to Florida Statute 316.2065(11), no person upon roller skates, or riding in or by means of any coaster, toy vehicle, or similar device, may go upon any roadway except while crossing a street on a crosswalk; and, when so crossing, such person shall be granted all rights and shall be subject to all of the duties applicable to pedestrians.

Under Florida law, does my bike have to have brakes?

Yes.  According to Florida Statute 316.2065(13), every bicycle shall be equipped with a brake or brakes which will enable its rider to stop the bicycle within 25 feet from a speed of 10 miles per hour on dry, level, clean pavement.

If I am on vacation and rent a bicycle, if I am under 16 years old, do I need a helmet to rent a bike?

Yes.  According to Florida Statute 316.2065(15)(a), a  person may not knowingly rent or lease any bicycle to be ridden by a child who is under the age of 16 years unless:

1. The child possesses a bicycle helmet; or

2. The lessor provides a bicycle helmet for the child to wear.

If I am required to wear a bicycle helmet under Florida law and do not wear one, am I considered to be comparatively at fault for causing the accident if I file a lawsuit for damages arising out of a Florida bicycle accident?

No.  According to Florida Statute 316.2065(18), the failure of a person to wear a bicycle helmet or the failure of a parent or guardian to prevent a child from riding a bicycle without a bicycle helmet may not be considered evidence of negligence or contributory negligence.

If a car, truck or other motor vehicle attempts to pass me while riding a bicycle, how much distance are they required to have between the car and me?

According to Florida Statute 316.083, the driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle or other nonmotorized vehicle.

Under Florida law, can I wear a headset or Ipod while riding my bicycle?

No.  According to Florida Statute 316.304, a bicyclist may not wear a headset, headphone, or other listening device other than a hearing aid when riding. Wearing a headset can not only distract you from other vehicles on the road, it also prevents you from hearing other vehicles on the road such as when they honk, brake, etc.

If I am riding a bike and need to make a left turn at an intersection, what does Florida law require me to do?

According to Florida Statute 316.151 (1), a bicyclist intending to make a vehicle left turn is entitled to full use of the lane from which the turn is made. After scanning, signaling, and moving to the center of that lane, the bicyclist must check the signal, then proceed when it is green and safe to do so. However, a bicyclist may proceed through the right-most portion of the intersection and turn as close to the curb or edge as possible at the far side. After complying with any official traffic control device, the bicyclist may proceed in the new direction.

Under Florida law, how do I signal if I intend to make a left or right turn?

According to Florida Statute 316.155 and 316.157, a signal of intention to turn must be given during the last 100 feet traveled by the vehicle before turning. If a bicyclist needs both hands for control, the signal need not be given continuously. A bicyclist may signal intent to turn left or right by extending the left hand and arm upward (left) or by extending the right hand and arm horizontally to the right side of the bicycle (right). If you intend to stop your bicycle or suddenly reduce speed, you can by extending the left hand and arm downward.

Under Florida law, can I ride my bicycle on a highway or limited access facility?

No.  According to Florida Statute 316.091, so person shall operate a bicycle on a limited access facility or an interstate highway. Moreover, no person shall operate a bicycle on the roadway or along the shoulder of a limited access highway, including bridges, unless official signs and a designated, marked bicycle lane are present at the entrance of the section of highway indicating that such use is permitted pursuant to a pilot program of the Department of Transportation.

Moral of the Story: if you are a Florida resident, tourist, vacationer or non-resident and are injured in a bicycle accident, whether the Florida bicycle or pedestrian accident happens in Cutler Bay, Daytona, Fort Pierce, Orlando, Port St. Lucie, Tampa, Fort Myers, Naples, Jacksonville, Sarasota, Bradenton, Hollywood, Port Charlotte, Palm Beach Gardens, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that bike riders who are seriously injured in Florida bicycle accidents may have options available under Florida law that may require the retention of a Miami Florida bicycle accident lawyer or a Florida pedestrian accident injury lawyer, given the many complexities involved when injured in a bicycle crash and the unknown of whether a Florida bicycle accident insurance claim is possible.