Cases

A man died when his vehicle crashed into the back of a truck following a rain storm. The trial court granted summary judgment to the defendant in a subsequent wrongful death case based on the presumption of negligence for a driver who rear-ends another vehicle. However, the district court reversed and held that genuine issues of material fact existed regarding who was at fault in this collision. The district court pointed to evidence that the truck driver may have suddenly changed lanes and reduced his speed to support this holding.

A girl was riding a friend’s All-Terrain Vehicle (ATV) when she was thrown off and killed. The friend and the girl were both under the age of 16, and warnings on the ATV state that those under 16 should never use it. The friend’s parents bought him the ATV when he was 11 or 12. The girl’s father brought suit against the friend and his parents, alleging negligent entrustment amongst other causes of action. A jury found for the girl’s estate, finding each of the friend’s parents 35 percent responsible and the friend 10 percent responsible. The friend’s family appealed, but the district court affirmed holding that the friend’s parents failed to exercise reasonable care in giving the friend the ATV and that they set “an example of disregard” making future misuses of the vehicle foreseeable. It also found the fact that Florida had not made it illegal for someone under 16 to operate an ATV was insignificant and that the friend was negligent in allowing the girl to ride the ATV.

The plaintiff’s 15-year-old daughter was killed when her car was hit by a truck in a night-time accident. The plaintiff filed a wrongful death suit as her daughter’s personal representative. At trial, the judge allowed the plaintiff’s alleged negligence in allowing her daughter to drive at night to be introduced and to appear on the jury form. The plaintiff had gone to bed without knowing that her daughter was planning to drive anywhere. The trial judge also limited the testimony of the plaintiff’s accident reconstruction expert to the operation of the truck. On top of that, the judge allowed a police officer to testify, over the plaintiff’s objection, that he believed the daughter had failed to stop at a red light. The district court reversed all three of these decisions. It held that there was no evidence in the record that the plaintiff was at all negligent and that it was not harmless error since it could have confused the jury regarding the issues of the case. As to the expert testimony, the defendant argued that it was cumulative and should be excluded. The district court held that it was rebuttal testimony that went to the heart of the defense’s case. Finally, the district court held that opinion testimony suggesting that the plaintiff had been guilty of a traffic violation was prejudicial error.

The personal representative of a pedestrian’s estate filed suit against defendants, who he said were negligently operating their vehicle when they struck the pedestrian and killed him. The defendants defended this claim by alleging comparative negligence, as the pedestrian’s blood-alcohol level was above a .08 at the time of the accident. The trial court directed a verdict for the defendants, but the district court reversed holding that a reasonable jury could have determined that the defendants did not live up to their duty to be reasonable, prudent drivers and seek to avoid hitting the pedestrian. The district court affirmed the trial court’s ruling that the intoxication defense spelled out in section 768.36, Florida Statutes, barred the pedestrian’s estate from recovering for wrongful death just as it would have barred the pedestrian’s recovery for another tort had he lived.

An estate filed a wrongful death action against the owners of a motor sports park and a manager that worked at the park. As an affirmative defense, the owners and manager argued that the estate’s claims were barred by a release and waiver executed by the decedent's father. The trial court granted summary judgment in favor of petitioners. The Fourth District Court of Appeal reversed and certified a question for review by the Supreme Court. The decedent's father took him to the sports part to ride an all terrain vehicle (ATV). The father signed a release and waiver of liability, assumption of risk, and indemnity agreement. While at the park, the decedent was involved in an accident, the ATV landed on him, and he died. The decedent's mother was unaware that the father permitted the decedent to engage in such activity and was also unaware that the decedent had suffered a fractured rib and concussion at the same park about a month earlier. The court held that the father did not have the authority to execute the pre-injury release on behalf of the child where the release involved participation in a commercial activity. The court found that there was an injustice when a parent agreed to waive the tort claims of a minor child and deprive the child of the right to legal relief when the child was injured as a result of another party's negligence.

A personal representative of a decedent's estate (PR) appealed an order which dismissed with prejudice her second amended complaint against a high school athletic association alleging claims of strict liability, negligence per se, and simple negligence. The PR alleged that the association violated § 1006.20(2)(c), Fla. Stat. (2005), by requiring medical evaluations only for participation in interscholastic athletics, and that, the decedent died as a result of that breach as he was allowed to engage in a baseball team tryout without first securing a medical evaluation. The appellate court affirmed the dismissal and held that there was no private cause of action under § 1006.20 for an alleged failure to enact a particular bylaw. Under § 1006.20, the association had the exclusive authority to adopt bylaws relating to student participation in interscholastic athletic teams. The Florida legislature did not create a private cause of action for individuals based upon the association's failure to enact specific bylaws. Ch. 1006, Fla. Stat., as a whole, regulated the health, safety, and welfare of students. The express authorization to pursue a private right of action under § 1006.24, Fla. Stat. demonstrated that the legislature did not intend to provide a private cause of action with regard to other ch. 1006 claims.

The personal representative, who was one of three brothers, retained the law group to represent the estate in a wrongful death action. One of the brothers retained a separate law firm to represent himself only. The firm hired by the personal representative obtained a settlement; however, the brother whom had secured individual representation subsequently attempted to object to the amount of the settlement but the objection was dismissed because it was procedurally deficient. No further objections were made and the brother accepted his share of the settlement proceeds. The probate court then ruled that the law firm retained to represent the dissatisfied brother was not entitled to a portion of the attorney's fee award. Attorneys fees are apportioned amongst more than one law firm in wrongful death actions when the survivors of the decedent have a conflict of interest and cannot be represented by a single entity. While the dissatisfied brother may have had a conflict of interest, his failure to properly object to the settlement foreclosed his counsel’s ability to recover fees under section 768.26. On appeal, the court rebuked the argument that the fee provision set out in section 768.26 applies only to actions that had already been filed with a court and not to pre-suit settlement negotiations. The court found no basis to exclude fees incurred in such negotiations from the statutory term “litigation expenses.”