News that the parents of a school shooter were themselves convicted in connection with the incident raises the question: Under what circumstances, if any, can a parent be held civilly liable for damages and injuries caused by their child?
A finger on the hand of Miami Beach hotel clerk was severed when an eight-year old girl forcefully slammed a door on it. That was in 1955 and when the injured clerk sued the parents, the case went to the Florida Supreme Court, which ruled a parent is not liable for the torts of a minor child merely because of paternity. That’s the general rule to this day. But as in most things legal, there are exceptions to the rule:
1. When the parent entrusts an instrumentality to a child that could cause a danger. Examples: a two-wheel bicycle without training wheels entrusted to a five-year old child; a baby stroller entrusted to a five-year old in a busy department store, and a loaded pistol left within reach of children.
2. When the child is acting as the servant or agent of its parents.
3.When the parent directs or sanctions the wrongdoing; and
Case in point: Mother of a 16-year old not liable to son’s friend who died after falling off a ATV being driven by her son. Case in point: Two teenagers playing with croquet mallets and one strikes the other on the head. Held: Parents not liable. Every case is different, and each turns on its own factually specific circumstances. But Florida law requires a showing of one of the exceptions listed above to hold a parent liable for damages caused by their child.
The catastrophes are well covered: The obese teenager falling hundreds of feet to his death. A 6-year old dies after being thrown from a roller coaster in Kissimmee.
But really, how safe are you, or aren’t you, when you go to an amusement park in Florida?
Truthfully, it’s hard to tell. There are no reliable statistics. The only reporting is self reporting by the amusement park rider operators themselves. And if they don’t report it, there’s no way to know.
And Florida law just made it harder to find out. The Legislature and Governor passed a new law exempting from the public records act the records of state investigations of accidents on amusement park riders until the state finishes its investigation. Very pro industry.
Except for Disney and Universal, (parks with more than 1,000 employees and full time inspectors on staff), amusement park ride operators in Florida are regulated by the FDACS—the Florida Department of Agriculture and Consumer Services.
The Department is responsible for enforcing the safety standards which are set by statute for amusement park rides. That’s Florida Statute 616.242 to be precise. Among other things, the safety standards require:
– For permanent rides, annual inspection by a qualified inspector – For a ride installed at a temporary location, inspection by a qualified inspector each time the ride is relocated – Defects affecting patron safety must be reported in 8 hours (but only if it results in the ride being close) – $1-million insurance – Employee training records must be maintained – The owner or his employees must inspect daily, and maintain daily inspection reports for 14 days – Any modification to the ride equipment or machinery must be reported to the department – Patrons requiring transport to a hospital must be reported by telephone within 4 hours, with a written report within 24 hours
The Department even maintains a 24-hour hotline for reporting accidents on fair rides. 1-800-663-3542.
The problem with all this is that to a great extent, it depends on the honor system–self regulation by those being regulated. Self policing by those being policed. If the rider owner or manager doesn’t report it, or doesn’t fix it, who’s to know? Until it’s too late.
Case in point: That is exactly what happened to Tyre Sampson, the obese teenager who fell 400 feet to his death in Orlando on a ride to which the operator had modified the sensors and seats but never reported the modifications as required by law.
Amusement parks are rife with conditions conducive to accidental injuries. The attractions and installations are designed to catch your eye, amuse and thrill you. But the installations can also result in slip, trip and fall injuries–many minor but some far more serious with fractures or concussions. Roller coasters can aggravate neck and back injuries, and rides that jolt the rider can, in the extreme, cause traumatic brain injury.
You assume some risk when you go to an amusement park. But the risk you assume is the risk inherent in the safe operation of the ride. You do not assume the risk of careless maintenance, or the risk of a preventable malfunction or the risk of operator error by an operator who was careless or untrained or drunk or all three.
As showcased on ABC News, Semi-tractor trailer trucks, those big 18-wheelers pose a particular hazard on the highway because their size and weight can cause huge damage in a crash, and because they have big blind spots.
A big semi-tractor has blind spots in front of it, behind it, to the left and to the right. The chart here shows where the trucker cannot see. And if the truck driver can’t see you, you’re in danger. So avoid the areas shown on the chart when you’re on the highway.
After an accident with a truck, it is important for your lawyer to place the trucking company on notice to preserve all relevant records, including (but not limited to) those required by the Federal Motor Carrier Safety Administration, the federal government agency that regulates truck safety.
Twice in my career, I represented young men who sustained permanent brain damage in collisions with a big truck on the highway. Neither one of them could tell me how the accident happened. The brain injury took away any memory of it. We had to forensically re-construct what happened and prove what happened using witness’ accounts, circumstantial evidence, and forensic expert witness testimony. These are hard fought battles. Today, both of the young men I refer to are doing well after fighting their way back through years of therapy.
Poor Mr. Yentes. He developed complications after undergoing a robotic prostatectomy, and sued his doctor for not revealing that the doctor had never performed the procedure, or had only performed it on a limited basis and that there would be a proctor (teacher) attending as well.
If he had known, Mr. Yentes claimed, he never would have consented to the operation. He even filed an affidavit by a board certified expert stating that the failure to inform the patient of the physician’s limited experience in performing the procedure was a “deviation from the standard of care” for which the physician would be liable for medical malpractice.
The Florida’s medical consent law says that a doctor is immune from suit for operating on a patient who has consented in accordance “with the standard of practice”. The law requires disclosure of the risks inherent in the procedure, but does it also require disclosure of how many times a physician has performed the procedure? So was the consent obtained really “informed?”
The trial court threw out Mr. Yentes’ case, but the appellate court threw it right back, overruling the trial court and allowing Mr. Yentes to have his day in court and tell his story to a jury. At trial, there will be two issues: first, was Mr. Yentes informed in accordance with the appropriate standard of care, and second, whether a reasonable patient would have foregone surgery if there had been disclosure.
But in general, yes, ride share services such as Lyft and Uber both have insurance coverages in place that provide ample protection to passengers and drivers.
– If you’re in an accident caused by the ride share driver, there is usually $1-million in coverage placed by the ride share company.
– If the accident is caused by a another vehicle, then your recourse is against the other vehicle. But…
– If the accident is caused by another car that has no insurance, the ride share service typically has uninsured motorists coverage for the benefit of both the ride share passenger, and the ride share driver.
– If the accident was caused by carelessness on the part of both the ride share driver and the other driver, then your claim would be against both the Uber/Lyft driver and the other driver.
Regardless of who was at fault, if you own a car and it’s insured, your PIP or no fault insurance will “follow” you while in the ride share vehicle, and pay up to $10,000.00 in benefits to cover 80% of your medical bills in excess of your deductible without regard to who as at fault.
Lyft and Uber also provide insurance to protect the ride share driver. However, the amount of coverage depend on the status of the ride share vehicle in transit. Is the car carrying a passenger? Is the car on its way to pick up a passenger? Is the car just driving around waiting for a ride call? The amount of insurance coverage available will vary depending on the status of the vehicle under these different scenarios.
Locating and identifying available insurance coverages is one of the most important parts of the personal injury lawyer’s job. Each situation is factually specific, and there is no one size fits all. As ever, the advice of a qualified attorney should be sought out if you or a loved one are injured in a crash involving a ride share vehicle.
God forbid, you’re assaulted at a hotel, mall or apartment building. Prior to now, if you sued the property owner for negligently failing to provide sufficient security to deter the crime, the property owner could not defend himself by blaming the assailant for the injuries. The landlord’s hands were tied: Nowhere on the verdict form was the property owner allowed to include the criminal assailant who had actually committed the crime as a liable party in a civil suit for money damages.
That now changes. Property owners being sued for negligent security can now defend themselves in Florida civil court by blaming the criminal for crimes and injuries inflicted on their property–even if the criminal is not an actual party to the case. At trial, the new law says, “the jury must consider the fault of all persons who contributed to the injury.”
For every dollar of fault apportioned by a jury to the assailant in a negligent security case, the landlord or property owner will pay less, and the injured victim’s damages will be reduced. Afterall, the criminal assailant is rarely collectible; whereas, the property owner usually has deep pockets.
This “reform” is going to reduce recoveries in negligent security cases by millions. But one may ask, is it fair to compare the fault of one who acts in a negligent or careless manner with the fault of one who acts with malicious criminal intent? And will this change in the law result in greater care for safety on the part of property owners or less?
There is a longstanding and widely used practice in the world of personal injury called Letters of Protection.
Suppose you’re hurt in an accident and you don’t have medical insurance. Under those circumstances, some physicians (who typically cater to personal injury victims) accept a written promise from the injured patient and his attorney to pay the doctor’s bills from the proceeds of the case–a letter of protection.
This practice has led to abuses in the form of exaggerated charges, and exposes the physician to claims of bias arising from a financial interest in the outcome of the case. The new law attempts to purge abuses of this practice in several ways:
The name of any person who referred the client to the physician with the letter of protection must be disclosed (Attorney client privilege does not apply and if the attorney referred the client, it must be disclosed.)
Doctors must code their charges in accord with standard insurance charges.
Most significantly, the new law specifically allows discovery of the details behind the referral relationship between the law firm and the doctor: How many cases has the firm referred? How much money has been involved? This could be embarrassing for certain large volume personal injury mills who keep using the same questionable doctors over and over.
LOPs are not necessarily a bad practice. Abused, they can result in exaggerated diagnoses and overcharges. But for a genuinely injured client with no other means of paying for care, they can be invaluable.
The new law denying injured persons any damages if they are more than 50% at fault could cause the plaintiff to shoot craps in mediation or negotiation.
The injured plaintiff now faces the risk of taking and recovering nothing unless she can convince an insurance company or a jury that she was not more than 50% at fault–a difficult if not impossible task in many cases where there is no way to objectively predict how a jury would apportion percentages of fault.
This will steeply compromise the plaintiff’s bargaining position in negotiation and mediation, which is precisely what the sponsors of the bill wanted. Faced with the prospect of getting nothing, plaintiffs may feel compelled either to accept a fraction of what they deserve, or risk losing it all.
The biggest change in Florida personal injury law is the change in the law of comparative negligence which now says that an injured party may not recover any damages if the injured party is more than 50 percent at fault.
This will affect every single case where both parties were partially at fault, and where the percentage of fault attributable to each is debatable, as is so often the case.
What if you were seriously injured in a collision at an intersection. In court, suppose the facts are contested, and a jury finds you to be 51% at fault in causing the collision, and the other driver to be 49% at fault.
You may have hospital bills, scars, permanent disabilities and lost earnings for which the other driver was 49% responsible. But rather than collect 49% of those damages from the other side, under the new law, you will get nothing. Nothing.
This means that a sizeable chunk of damages that were previously available under law no longer exists, and many injured persons will be denied recovery of a percentage of damages to which they were formerly entitled. A longstanding civil right to damages simply done away with by an act of the Legislature and the stroke of the Governor’s pen.
I just sent a referring attorney a check for $50,000.00 as a referral fee. He was thrilled.
$50,000.00 is quite a windfall for a lawyer for “just making a phone call.” But bar rules contemplate that the referring lawyer not just make a call, but participate and assume “secondary responsibility” for the case and client. For assuming this “secondary responsibility,” the referring attorney may receive “a maximum of 25% of the total fee.” By the way, the referring attorney not only participates in the fee, but also can be liable if the case is mis-managed and results in a mal-practice claim.
Referral fees in excess of 25% are strongly frowned upon. If the referral fee exceeds 25% the lawyers must obtain permission from the court.
Lawyers are not, repeat not, allowed to share fees with non attorneys, and if discovered to have done so, the lawyer would be subject to discipline including in one recent case suspension from practice.
We are fortunate to have built a network of attorneys over the years who often turn to us to handle their clients’ personal injury cases, through steady, aggressive and ethical representation. If you’re an attorney interested in co-counseling your client’s personal injury case with an attorney who gives each individual case and client personal attention, we may be a good fit for you.
Personal Injury Attorney Mark Wolin proudly serves Florida and South Florida communities in Miami-Dade County, Monroe County and Broward County including Aventura, Bal Harbour, Bay Harbor Islands, Biscayne Gardens, Biscayne Park, Davis Harbor, El Portal, Hallandale, Hallandale Beach, Hialeah, Hollywood, Hollywood Beach, Liberty City, Little Haiti, Little River, Miami, Miami’s Upper East Side, Miami Beach, Miami Gardens, Miami Shores, North Bay Village, North Miami, North Miami Beach, Opa Locka, Pembroke Pines, Pembroke Park, Sunny Isles Beach and Surfside, Florida. View our privacy policy here.
