December 2017 - Bryan W Crews Archive

Kissimmee Slip and Fall Personal Injury Attorney

Posted on: December 29th, 2017 by pmilakovic No Comments

When you enter the property of another, you expect that the premises are safe, and free from dangerous hazards. Kissimmee property owners owe their guests and patrons a duty. They are required to keep their restaurants, retail stores, and private residences free from defects that could cause invitees or licensees harm. While most property owners are proactive, some landowners fail to repair or warn guests or patrons of dangerous conditions. Slip and fall injuries can result in irreparable harm. Bryan W. Crews is a Kissimmee personal injury attorney with decades of experience. Contact the Kissimmee attorneys at Bryan W. Crews today for a free consultation.

Guests in a hotel are owed a duty of care. When you stay in a hotel, you expect that the premises are safe. Consider the following. The fire alarm goes off mid-evening in an upscale hotel. You are residing safely in your hotel room. When you hear the alarm, you proceed towards the nearest exit. As you enter the lobby, you hear the wail of the fire alarm, and speed towards the door. Except, as you walk across the tile, you slip and fall on a puddle of water and land on your back. As you land on your back, your head slams against the tile. Later you learn, the puddle of water that you tripped on had been sitting there for hours. This circumstance is more than likely the result of negligence on behalf of the hotel. Business owners are required to keep their walkways free of defects that could result in injury.

The standard of care changes depending on the type of property, and the status of the guest. Invitees, or business patrons, are owed the highest duty of care in Kissimmee. Business owners owe their patrons a duty. This duty includes inspecting the premises, and warning of any defects.

When you sustain injuries on a business owner’s property, you are entitled to make a claim for compensation for your injury. Kissimmee attorneys at Bryan W. Crews have experience litigating premises liability cases in Kissimmee. Contact our offices today you’re a free case evaluation.

Altamonte Medical Malpractice Attorney

Posted on: December 25th, 2017 by pmilakovic No Comments

Over the last decade in the United States, patients have filed over 400,000 adverse action reports against medical practitioners according to the latest data from the National Practitioner Data Bank. When our health is at risk, we turn to medical professionals for care. The last thing any patient expects is to have their health jeopardized through the incompetence of a nurse, physician’s assistant, or doctor. Medical malpractice is increasingly common and can leave patients devastated. Existing health concerns compounded by the shock of a medical procedure gone wrong, and the long term effects of dealing with medical malpractice.

In Florida, there were over 24,000 adverse action reports filed by patients during the same time period according to the National Practitioner Data Bank. Statistics published by the Institute of Medicine and the National Academy of Sciences found that roughly 98,000 patients die per year in hospitals due to medical errors. Unfortunately, not all medical professionals are held responsible. If you or a loved one have been impacted by medical malpractice, contact Bryan W. Crews, your Altamonte personal injury attorney. Bryan W. Crews is a personal injury lawyer and regularly handles medical malpractice claims. If you have been harmed by the negligence of a medical professional, you deserve to be compensated for your injury.

Common causes of medical malpractice are failure to follow established procedures and protocol, unsanitary medical instruments, leaving medical tools inside of a patient after surgery, misdiagnosis, operating on the wrong limb, administering the wrong medicine, administering the wrong blood type during a transfusion, and a number of other deviations from the standard of car. Doctors are professionals, and they are required to operate according to the highest levels of established care. Surgeons often work long hours and as their shifts are prolonged, the risk of medical malpractice increases dramatically.

Thousands suffer every year from medical malpractice. Statistics show that not all doctors are disciplined by their licensing authorities. Do not be intimated by hospitals and insurance companies. If you or a loved one have been injured due to medical malpractice, Bryan W. Crews can help. You deserve to be compensated for the pain and suffering you have endured.

In Florida, there are special rules that plaintiffs must follow prior to filing a lawsuit. If you have been injured by a medical professional, you should consider retaining the services of competent legal counsel. Per § 766.106, you must mail a notice of intent to sue to the health care provider prior to filing a lawsuit. This notice, per the statute, “must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065.” In addition, this starts a 90 day clock for the statute refers to as pre-suit investigation. This is a complicated set of rules designed to vet claims prior to initiating a lawsuit.

In 2017, the Florida Supreme Court ruled that caps on damage awards in medical malpractice cases were unconstitutional. Previously, there was a $500,000 cap on non-economic damages, or in other words, pain and suffering damages. There was also a $1,000,000 cap on non-economic damages in death or vegetative state cases.

Bryan W. Crews is a personal injury attorney serving residents in the greater Altamonte area. With his decades of experience, and dedicated staff, Bryan W. Crews will fight tirelessly to secure the maximum compensation for your medical malpractice claim. Call today for a free case evaluation.

Private Nuisance: Your Right to Peace and Quiet

Posted on: December 21st, 2017 by pmilakovic No Comments

Property rights are often referred to as a bundle of sticks. The bundle of sticks image is helpful because property can be sold outright, conveyed for a particular purpose, or leased. Each transaction carries with it a certain set of rights and obligations. Thus, each conveyance of property can be thought of as transferring a bundle of sticks. Buying property outright vests the owner with the entire bundle of sticks: including but not limited to the right to exclude others, the right to transference, the right to use, the right to mortgage, etc. Those that lease their apartment or home have only some of these rights. This starting point is helpful for personal injury law because what is common for owners and renters is their right to reasonable use and enjoyment.

Private nuisance occurs when there is a substantial, unreasonable interference with another’s use or enjoyment of property. Property owners cannot use their property in a manner that interferes with another’s right to use their property. An isolated interference, or minor inconvenience is not enough to constitute a private nuisance.

The interference must be substantial. Hypersensitive plaintiffs, or plaintiffs using their property in a specialized way may not be able to establish a substantial interference. The interference must be offensive, inconvenient, or annoying to an average person in the community.

Illegal activity, noise pollution, light pollution, water pollution, noxious odors, fences, and constant barking all may rise to the level of a private nuisance. Whatever the type of nuisance, it must be unreasonable. Generally, the severity of the injury must outweigh the utility of the defendant’s conduct. Courts may evaluate the character of the neighborhood, land values, and whether the defendant has alternative course of conduct. Determining whether a nuisance exists may require the court to balance the competing interests of litigating landowners.

Florida’s nuisance statute is codified at § 60.05. The statute allows landowners to file for a permanent injunction, or a “temporary injunction without bond on proper proof being made.” A word of caution to vexatious litigants, if “the court finds that there was no reasonable ground for the action, the costs shall be taxed against the citizen.” For successful plaintiffs, “if the existence of a nuisance is shown, the court shall issue a permanent injunction and order the costs to be paid by the persons establishing or maintaining the nuisance and shall adjudge that the costs are a lien on all personal property found in the place of the nuisance and on the failure of the property to bring enough to pay the costs, then on the real estate occupied by the nuisance.”

Nuisance actions are different than trespass actions. Trespass to land is an interference with a landowner’s exclusive possession by physical invasion of the land. Whether you own or rent, you have the right to invite or exclude others from your property. A nuisance to land is not a physical invasion, but an interference with your use and enjoyment of the property.

Neighborhoods subject to homeowner’s associations, apartment complexes, and condominiums require residents to abide by certain rules and regulations. If you live in such a community, as a matter of course your first step in abating a nuisance should be contacting the HOA, landlord, or condominium association. The oversight and authority vested in these bodies can remedy most neighborhood disputes.

However, if you live in a community that is not subject to an HOA or other such association, your only recourse against an interfering neighbor may be the courts. As the nuisance continues, keep detailed records. Even if a temporary injunction is issued, permanently enjoining the nuisance will require some level of evidence to prevail.

If you or your family are living in discomfort because of a neighbor’s noise, obstruction, or other such disturbance, contact Bryan W. Crews today. Bryan W. Crews is your Orlando personal injury attorney.

Belle Isle Car Accident Attorney

Posted on: December 17th, 2017 by pmilakovic No Comments

January 5, 2018

Handling your personal injury claim with care, the Belle Isle car accident attorneys at Bryan W. Crews will fight for maximum compensation. We will process your claim through your insurance company and if necessary the at fault driver’s insurance company. If you have been injured, contact our office today. Those injured by thoughtless drivers should not have to pay out of their own pocket to receive the necessary medical treatment.

Driving on our nation’s busy highways can be incredibly stressful. Traffic on the interstate, one way streets, confusing traffic patterns, and five lane highways are made more dangerous by negligent operators. If you or a loved one have been injured in a car accident, do not hesitate to contact Bryan W. Crews, your Belle Isle car accident attorney. We understand that the facts and circumstances of your injury are unique.

Drivers owe each other a duty of care. The law demands that those operating a motor vehicle do so as a reasonable person would. This means that drivers must obey the speed limit, actively observe their surroundings, and respond prudently to sudden changes in traffic. When a negligent driver causes a collision, or causes another car to veer off the road, they are obligated to make the injured party whole again. Bryan W. Crews, your Belle Isle car accident attorney, understands that financial compensation cannot truly compensate for the severe emotional toll that car accidents inflict. However, a visit to the emergency room, lengthy physical therapy, time away from work, permanent loss of mobility, or loss of companionship are quantifiable losses that form the basis of a personal injury claim. After evaluating your claim, the Belle Isle car accident attorneys at the offices of Bryan W. Crews will work with the appropriate insurance companies or party to secure the maximum possible compensation.

Car accidents may involve one car, multiple vehicles, defects or hazards in the roadway, poorly managed construction zones, debris left in the roadway, tractor trailers, or collisions with commercial vehicles. Dangerous road conditions may include potholes, poor road design, or sinkholes. Florida law requires drivers involved in an accident to follow certain criteria. Drivers involved in an accident are prohibited by law from leaving the scene without abiding by the terms of the statute. Every case is different, and not all car accidents involve two cars in a fender bender. Some car accidents involve pedestrians and bicyclists.

Recovering from a car accident is stressful, and the effects of trauma may be long term. As a car accident victim, the last thing you want to do is work with an insurance adjustor. Bryan W. Crews, your Belle Isle personal injury attorney, will work on your behalf to secure the maximum possible financial recovery.

Do not hesitate to contact a Belle Isle personal injury attorney. Florida’s statute of limitations for personal injury claims is four years. The longer you wait, the greater opportunity there is for evidence to be lost, and memories to fade. Document everything you can, and avoid speaking directly with the insurance adjuster.

Lake Buena Vista Car Accident Attorney

Posted on: December 15th, 2017 by pmilakovic No Comments

Car accidents are commonplace and in Florida there are roughly over 600,000 car accidents every year according to Florida’s Highway Safety and Motor Vehicles website. While car accidents happen every day, not all drivers successfully recover the financial compensation necessary to address their physical and emotional loss. Every victim is different, and the facts and circumstances of each collision are different. If you are the victim of careless or reckless driving, you may be unsure about how to proceed. Bryan W. Crews, your Lake Buena Vista personal injury attorney, will evaluate the unique circumstances of your claim and advocate on your behalf. Car accidents and injuries are on the rise. Do not hesitate to contact the competent staff at the law offices of Bryan W. Crews.

If you have been contacted by an insurance company, proceed with caution. Insurance companies often look out for their own best interest and their offer may not fully compensate for your medical needs or the emotional toll of your accident. A life changing event such as a car accident in Lake Buena Vista can be traumatic, and perhaps overwhelming. Let the experts at Bryan W. Crews, your Lake Buena Vista personal injury attorney, handle your claim.

The impact of a car accident can be far reaching. Aside from your immediate medical needs, you may require ongoing physical therapy or other long term medical treatment. Some injuries require multiple procedures. Not all drivers carry policy limits that will fully compensate you for your injuries. This may require recovering directly from the driver in their personal capacity. If you are not able to reach settlement that reflects the full extent of your damages, pursuing justice through the courts may be your only avenue to compensation. An experienced Lake Buena Vista attorney can help you work through the legal complexities of litigation.

Remember that the insurance adjustor works for the insurance company. Resist giving a recorded statement to the at-fault party’s insurance company, no matter how much pressure they apply. Contact your Lake Buena Vista attorneys at the law offices of Bryan W. Crews. All communication should take place in writing. Do not sign any authorizations that allow the insurance company to seek your medical records. And most importantly, do not sign any settlement agreements until the competent Lake Buena Vista attorneys have had a chance to revise them accordingly. Insurance adjustors are not your friends, and they do not work on your behalf. Some insurance adjustors are compensated through bonuses or have other incentives to settle your case for the lowest possible amount.

Car accidents can result in any number of injuries including catastrophic injuries, loss of mobility, spinal cord injuries, traumatic brain injury, and whiplash. Common causes of car accidents include distracted driving, intoxicated drivers, head on collisions, fender benders, speeding, pulling out in front of your vehicle, or stopping too abruptly. Some accidents may be caused by negligent construction vehicles on the highway. Whatever the cause, the Lake Buena Vista lawyers at Bryan W. Crews have experience handling car accident cases.

Florida is a no-fault state. This means that injured drivers utilize their own policy first up to $10,000. Recovery beyond that is obtained through the at fault driver’s insurance. In order to hold the at fault driver liable, you must prove that they were driving negligently. Negligence is a legal standard. To prove negligence, you must show that the driver owed you a duty of care that he breached, the breach of this duty caused your accident, and you have suffered damages as a consequence. This legal formula is used to assign fault in car accident case in Lake Buena Vista, and all jurisdictions.

Orlando Motorcycle Accident Attorney

Posted on: December 13th, 2017 by pmilakovic No Comments

Motorcycles are thrilling, an excellent commuting option, and a great way to enjoy Florida scenery. Unfortunately, riding can result in severe injury due to the lack of protection on the open road. If you or a loved one have been injured in a motorcycle accident due to a careless motorist, or negligent road maintenance, Bryan W. Crews can help you recover financial compensation for your injuries. A personal injury claim can result in compensation for your hospital visit, ongoing medical care, necessary physical therapy, lost income, lost future wages, property loss, pain and suffering, or in the event of a fatality, loss of consortium. Bryan W. Crews is an Orlando personal injury attorney with decades of experience.

According to the latest statistics from the Governors Highway Safety Association, there were 550 motorcyclist fatalities in 2015, more than any other jurisdiction in the United States. Statistics from the Florida Department of Transportation reveal a rise in motorcycle fatalities, and explain the factors involved in motorcycle accidents. The report also states that in 2009, there were 8,202 motorcyclist and passenger related injuries.

Most motorcyclists operate their motorcycles in a safe and responsible manner. Motorcyclists are too often labeled irresponsible because of the carelessness or showboating of a minority of motorcyclists. Riders are taught defensive driving and inexperienced or aggressive motorists sometimes are the cause of motorcycle related accidents. It is a fact that motorcyclists have less protection in the case of an accident. A road incident with a car or truck can result in severe injury requiring years of ongoing medical treatment or therapy.

Some causes of motorcycle accidents include defective parts, tailgating and aggressive driving from other motorists, intoxicated motorists, speeding motorists, drivers not paying attention, or pulling out in front of a motorcyclist. Such reckless or negligent behavior is unacceptable and the responsible driver should be held accountable. Hiring an Orlando personal injury attorney may be critical to the success of your claim. Bryan W. Crews, your Orlando personal injury attorney, has been successfully handling personal injury claims for decades. Mr. Crews and his staff have the knowledge and expertise to skillfully and effectively build your case in order to recover compensation on your behalf. Bryan W. Crews is also prepared to handle claims in Winter Park, Altamonte, Orange County, and Oak Ridge.

The value of your case depends on whether the other party involved was negligent, and the extent of your damages. Liability is another way of saying fault. Someone can be held liable when a plaintiff can prove they were owed a duty of care, that duty was breached, the breach was the cause of their injury, and they have incurred a loss, or damages. Without damages, there can be no lawsuit. Your damages are the sum of your medical bills, lost income due to time away from work, and any ongoing treatment.

If your case proceeds to trial, and the jury determines you contributed to your injury, your reward will be reduced. In Florida, for example, if 30% of your injuries are the result of your own carelessness, then a $100,000 judgment will be reduced to $70,000. In addition, be prepared to settle for less than what you might expect to recover at trial. Settlements are expedient, and they provide certainty. Trials can be lengthy, and the outcome is not certain. If your case does not settle, Bryan W. Crews is a seasoned personal injury attorney with decades of trial experience.

Working with insurance adjusters to negotiate your claim can be frustrating. Do not hesitate to contact the law offices of Bryan W. Crews. Mr. Crews and his staff will evaluate your motorcycle accident claim and work on your behalf to make you whole again.

Timeline of a Personal Injury Trial

Posted on: December 11th, 2017 by pmilakovic No Comments

The vast majority of personal injury claims settle before trial. Whether it’s an insurance company, a large corporation, or an individual, most parties want to avoid the time, stress, and cost of going to trial. Most parties, including the plaintiff, would rather resolve their claim quickly, even if it means settling for less. However, some parties refuse to make reasonable settlement offers. Accepting a low offer that does not address the long term effects of your injury is not worth a quick resolution. If the party responsible for your injury is unwilling to negotiate, Bryan W. Crews, your Orlando personal injury attorney will zealously advocate on your behalf. As a seasoned Orlando personal injury lawyer, Bryan W. Crews is prepared to litigate your claim all the way to trial. The trial process can be lengthy and is sometimes complex. The following is a short overview of what you can expect if your claim does not result in a settlement.

Settlement

Prior to trial, depending on your facts and jurisdiction, your personal injury claim may be resolved through negotiation, mediation, or arbitration. Negotiating with the party responsible for your injury can take place over the phone, in person, through email, etc. The back-and-forth of negotiating includes an estimate of your damages and what the responsible party is willing to pay. Mediation and arbitration are more formal methods of resolving a claim. While different, both involve sitting down with a neutral third party that guides the negotiation process. Unfortunately, regardless of the method, some cases do not resolve at this early stage. If you have been injured and are left without compensation, the following is an overview of the trial process.

Filing and Discovery

The one filing the lawsuit is called the plaintiff, and the party defending the lawsuit is called the defendant. As the plaintiff, you are the master of your lawsuit. The plaintiff makes a number of decisions such as what claims to bring, where to file, and which parties to sue that have a strategic significance.

Once the lawsuit is filed, the plaintiff and defendant begin the discovery process. At the time of filing, most plaintiffs do not have all the evidence they need to succeed. Having all the evidence is not required in order to file. Discovery is an opportunity for the plaintiff to uncover more information and the facts necessary to win at trial. Plaintiffs with no basis for filing are barred from using discovery as a “fishing expedition.” This means that courts will dismiss complaints filed by plaintiffs that want to use discovery just to find information. Complaints must be filed in good faith, and abuse of the discovery process will not be tolerated by judges.

The most common discovery tools are interrogatories, requests for production, and depositions. Interrogatories are questions asked of one party by the other, and they must be answered. Requests for production are evidentiary requests, such as a request for emails or financial records. Depositions are similar to in-court testimony and are taken under oath. Depositions often last much longer than in-court testimony, and statements from depositions are often admissible at trial.

Suffering

If the exhaustion of discovery does not compel a settlement amongst the parties, a trial will commence. Depending on the type of case, and the jurisdiction, the plaintiff may have the option of trial by jury or a bench trial. The number of jurors may depend on state law. Jury selection is called voir dire, and each side vets potential jurors through a series of questions to eliminate bias. Once the jury is selected, the judge will schedule a trial date.

Trials can be complex and their length depends on the complexity of the case, number of witnesses, and a variety of other factors. All the components of a trial would be far too exhaustive for this brief overview. However, a few of the main components are opening statements, witness testimony, cross-examination, the presentation of physical evidence, and closing arguments. Once the trial has concluded, the jury deliberates and the verdict is read aloud in the courtroom.

If you have been injured, contact the offices of Bryan W. Crews today, your Orlando personal injury attorney.

Orlando Dog Bite Lawyer

Posted on: December 7th, 2017 by pmilakovic No Comments

If you have suffered an injury due to a dog bite, you may be entitled to compensation for costs such as medical expenses. Dog owners are required by law to compensate dog bite victims for their injuries. Bryan W. Crews is an Orlando personal injury attorney. Mr. Crews is prepared to handle your dog bite case and will zealously advocate on your behalf.

Florida statute § 767.04 states that dog owners are “liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners’ knowledge of such viciousness.” Section 767.04 applies to anyone in public, and those lawfully on private property. If the person bitten contributes to his own injury through carelessness or provocation, this “reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the biting incident.” To lawfully be on the private property of the dog owner, according to the statute, you must be performing “any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States,” or be there by invitation from the owner. However, the owner may not be liable if they prominently display “on his or her premises a sign easily readable including the words ‘Bad Dog.’” This prominent display does not apply if the one bitten is under the age of six, or if the dog owner carelessly causes the dog bite.

Some jurisdictions abide by what is called the “one bite” rule. Another way to think about this rule is that the dog owner must be on notice that he or she is the owner of a vicious dog before the law will attach liability for a dog bite. This is also sometimes called the “free bite” rule because dog owners will not be held liable for the first instance of biting. As demonstrated above, § 767.04 does not follow the “one bite” rule. In Florida, dog owners are held liable “regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” Dog owners in Florida are held strictly liable for their dog’s viciousness, and their liability is only reduced if the one has bitten somehow contributed to the bite.

Further, the Florida legislature has codified procedures for declaring, impounding, and destroying dangerous dogs. A dog that has “aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being” may be investigated and classified as a dangerous animal. During the investigation, the dog may be impounded with the owner paying all related costs. The investigation may result in the dog being destroyed to ensure the safety of the community.

It is important that you report dog bites as soon as possible. Once reported to the proper authorities, they will begin investigating. The longer you wait for the greater risk of loss of critical evidence.

This past August, a woman in Fort Walton Beach was attacked by a pit bull. According to news sources, the woman sustained four separate wounds from the attack. Upon arriving, law enforcement was then charged by the pit bull. The dog was tranquilized and taken to an animal shelter for observation.

Dog bites can cause severe wounds, disease, or even lead to infection if left untreated. They may also result in long-term scarring or permanent injury. Any medical treatment that you receive should be paid for by the owner of the dog. If they refuse to pay or are unwilling to compensate you fully, contact Bryan W. Crews, an Orlando personal injury attorney today.

Generally speaking, you have four years to file a personal injury claim. The facts and circumstances of each case are different. While this article primarily addresses the statutory liability, dog bite victims may file other types of claims including negligence.

Bryan W. Crews is a seasoned personal injury attorney with decades of experience. If you or a loved one has suffered a dog bite, contact Bryan W. Crews for a free case evaluation.

Need Assistance Following A Truck Accident?

Posted on: December 7th, 2017 by pmilakovic No Comments

You have come to the right place. In the event that you or a loved one has been the victim of a truck accident, an expert truck accident lawyer could possibly help. Due to the fact of their sizeable size, semi-truck accidents are usually complex and in most cases cause serious emotional and physical harm, and a truck accident lawyer can assist.

An Orlando truck accident lawyer can work with you when you’ve been involved in a truck accident. Bryan W. Crews will be honored to work with you and have our most experienced Orlando truck accident lawyer to help prepare your case following a truck accident.

Need An Attorney In Orlando, Florida?

Bryan W. Crews has experienced truck accident attorneys with real courtroom experience. With our over 30 plus years of courtroom experience, we have the reputation, experience, and knowledge to handle your truck accident case.

Use the contact form or call our office to connect with an Orlando, Florida attorney for legal advice.

How Do I Choose an Orlando Lawyer?

Consider the following:

Comfort Level – Are you comfortable telling the lawyer personal information? Does the lawyer seem interested in solving your problem?
Credentials – How long has the lawyer been in practice? Has the lawyer worked on other cases similar to yours?
Cost – How are the lawyer’s fees structured – hourly or flat fee? Can the lawyer estimate the cost of your case?
City – Is the lawyer’s office conveniently located?

Not Sure What Questions To Ask A Lawyer?

Here are a few to get you started:

How long have you been in practice?
How many cases like mine have you handled?
How often do you settle cases out of court?
What are your fees and costs?
What are the next steps?

Consumer Expectations in Product Liability Cases

Posted on: December 5th, 2017 by pmilakovic No Comments

Recently, the law governing Product Liability has changed, and the change could impact the outcome of your case.

In 2015, the Florida Supreme Court ruled that the consumer expectations test is the appropriate standard under which design defect claims should be evaluated. In Aubin v. Union Carbide, the Florida Supreme Court held that “the definition of design defect first enunciated in West, which utilizes the consumer expectations test, instead of utilizing the risk-utility test and requiring proof of a reasonable alternative design, best vindicates the purposes underlying the doctrine of strict liability. We thus disapprove of the Third District’s adoption of the risk-utility test for design defects, as enunciated in the Third Restatement.” This holding has led to interesting observations amongst commentators and the possibility that the risk-utility test may still be applicable in some cases.

Products Liability refers to a specific area of law that governs whether someone in the manufacturing chain is liable to consumers for a faulty product. Defective brake pads, faulty household appliances, and children’s toys containing toxic substances are all examples of potential Products Liability claims. Manufacturers owe consumers a duty of care and Products Liability law holds sloppy manufacturers accountable for manufacturing defects, and design defects.

Consumers that purchase brake pads, household appliances, or children’s toys do so with certain expectations that these products function effectively and safely. Consumers do not expect their brake pads to fail, household appliances to combust, or children’s toys to contain toxic substances. The consumer expectations test “allows a jury to infer the existence of a defect if a product fails to meet reasonable expectations of consumers. In a case where there is no evidence, direct or circumstantial, available to prove exactly what sort of manufacturing flaw existed, a plaintiff may establish his right to recover by proving that the product did not perform in keeping with the reasonable expectations of the user.” Legal Information Institute.

Conversely, the risk-utility test asks whether the risk of using the product is outweighed by the utility of its design. This is essentially an economic analysis and juries typically answer whether a reasonable alternative design existed. The basic criteria in this standard favor the manufacturer. If juries find that the utility outweighed the risk, and a lack of reasonable alternative designs, the manufacturer will likely succeed.

After Aubin, the belief was that adjudicating strict liability design defect cases required the consumer expectations test. In fact, in Aubin the Florida Supreme Court articulated its rationale stating “the burden of compensating victims of unreasonably dangerous products is placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict liability in West.”

However, since then, some courts have indicated that the consumer expectations test is not appropriate when dealing with complex technical products. In those instances, some believe that the facts and circumstances of a case may demand the use of the risk-utility test. One of the reasons for this belief is that the jury instructions remain unchanged.

Either way, in many Products Liability design defect cases the consumer expectations test will be used. This is advantageous for consumers and good news for those litigating their claims. Manufacturers are in the best position to protect consumers, and the consumer expectations test reflects this reality.

If you or a loved one have been injured as the result of an improperly designed product, call Bryan W. Crews today, your Orlando personal injury attorney. Bryan W. Crews has decades of experience and will thoughtfully evaluate your claim. Products Liability is a complex area of law. Bryan W. Crews, your Orlando personal injury attorney, will advocate on your behalf and fight to obtain full compensation.

Archive for December, 2017