When a defendant is found liable, a judge or jury then determines the amount of damages owed to the plaintiff.  In a civil action for personal injury, damages are normally limited to pain and suffering, and economic loss.  However, depending on the severity of the defendant’s behavior, the plaintiff may also be entitled to punitive damages.  This category of damages are awarded to punish the defendant’s behavior.  In a criminal proceeding, the prosecuting attorney’s job is to enforce the law.  If the criminal defendant is found guilty, the court will punish the defendant by handing down a sentence, usually in the form of a fine or prison term.  In a tort or personal injury claim, the civil court’s primary function is to make the plaintiff whole not to punish the defendant.  But when a defendant’s behavior is so egregious, the plaintiff may be entitled to relief beyond that which would make her whole.

Under Florida law, § 768.72 the “defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.”  To prove that the defendant’s conduct was intentional, the plaintiff must show “that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.”  To prove that the defendant acted with gross negligence, the plaintiff must show “that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”  One important thing to note is that this statute requires clear and convincing evidence, a higher burden of proof than the preponderance standard.

In short, a claim for punitive damages requires proof that the defendant’s behavior was willful or wanton.  In most personal injury cases, the defendant is alleged to have behaved negligently, below the standard of care or required duty owed to the plaintiff.  But in some cases, the defendant may have acted with complete disregard, or perhaps intentionally caused the plaintiff’s injury.  When that behavior is present, the plaintiff is warranted in his pursuit of additional damages beyond that which would make him whole.

A jury recently awarded the surviving family members in a horrific car accident case $20 million in compensatory damages and $25 million in punitive damages.  In another recent case, a jury required two tobacco companies to each pay $12.5 million in punitive damages.  Current law requires half of punitive damage awards in nursing home cases go to a state administered trust fund, but the legislature may be considering repealing this rule.

Punitive damages play an important role in civil proceedings.  Plaintiffs that suffer willful or wanton conduct have recourse through punitive damages.  Compensatory damages may not always capture and quantify the true cost and suffering that victims endure at the hands of reckless defendants.

Punitive damages are sought in roughly 10% of all tort trials, and are only awarded about 5% of the time when the plaintiff prevails according to Bureau of Justice Statistics.  The vast majority of plaintiffs are not victims of such reckless behavior, and punitive damages are rarely awarded.  Even so, each case is different, and the lawyers at Bryan W. Crews will gladly evaluate your case.  Bryan W. Crews is an Orlando personal injury attorney with the expertise necessary to successfully handle your claim.  If you or a family member have suffered a personal injury, call Bryan W. Crews today for a review of your case.

Previously, I discussed intentional and negligent misrepresentation, a cause of action under Florida Law.  In this article, we revisit the issue with an interesting case from the District Court of Appeal of the State of Florida, Fourth District.  Decided during the July Term 2011, Blumstein v. Sports Immortals, Inc., presents an interesting case demonstrating the application of negligent misrepresentation.

In Blumstein, two associates approached a lender for a $203,000 loan .  To secure the loan, they offered a collection of baseball memorabilia as collateral.  Before issuing the loan and accepting the collateral, the lender required an appraisal of the baseball memorabilia at a value of $300,000 or more.  For the appraisal, the two associates and the lender obtained the services of Sports Immortals.  Sports Immortals advertised “as experts at authenticating and appraising sports memorabilia.”  While engaging Sports Immortals, the two associates and the lender made known “that the appraisal was being done for the specific purpose of Phillips relying on it to make a loan against the memorabilia.”  A key fact in the case that meant Sports Immortals was on notice that the associates and the lender were “relying upon the appraisal/evaluation to make complete the loan.

Sports Immortals appraised the baseball memorabilia at $350,000-$400,000.  The specific piece of memorabilia was a Hall of Fame Baseball Montage depicting the original inductees into the Baseball Hall of Fame.  Signatures include those of Babe Ruth, Grover Alexander, Connie Mack, Tris Speaker, George Sisler, Walter Johnson, Ty Cobb, Nap Lajoie, Honus Wagner, Cy Young, and Eddie Collins.  Sports Immortals provided a written appraisal on letterhead and described the piece in detail and the potential auction price.

The lender issued the loan, and the associates defaulted in October of 2007.  The lender, in an effort to recoup his losses, took the baseball memorabilia that was used as collateral to another appraiser “to ascertain the current value of the memorabilia.”  To the lender’s dismay, the second appraisal was not as generous.

According to the second appraiser, Sports Immortals estimation was invalid “because the autographs on the montage ‘were not authentic.’”  In February of 2009, the lender returned to Sports Immortals for a reappraisal.   Sports Immortals consulted an autograph authenticator at an auction house who determined the signatures were no authentic and refused to place the montage at auction.  Sports Immortals therefore gave the montage no value but made a modest offer on the remaining memorabilia.

Blumstein, by way of assignment, took on a claim against Sports Immortals.  Blumstein argued that Sports Immortals “owed [] a duty of case to conduct the appraisal/evaluation in a reasonable manner consistent with the requirements of a ‘memorabilia appraiser/evaluator/authenticator in the community.’”  Blumstein maintained that Sports Immortals breached this standard when it issued the original appraisal of $350,000-$400,000.  This breach, Blumstein further argued, was the proximate cause of damages.

The appellate court concluded that Sports Immortals owed “a duty of reasonable care to insure the accuracy and validity of the information they provided.”  Sports Immortals was in the business “of appraising sports memorabilia and [the parties] travelled to their place of business to obtain an opinion, after fully disclosing the reason for the inquiry.”  To succeed on his claim of negligent misrepresentation, Blumstein was required to show that Sports Immortals had a pecuniary interest in the matter.  This was a critical point in the lawsuit because Sports Immortals did not charge for their appraisal.  However, the appellate court concluded that this “transaction was an opportunity for appellees to establish a relationship with [the parties] that might have led to future business.”

If you have suffered a financial loss due to negligent misrepresentation, contact Bryan W. Crews today.  With his expertise, and dedicated staff, you can rest assured that Bryan W. Crews, your Orlando personal injury attorney will handle your claim with the utmost care.

Deceitful or fraudulent representations are actionable under Florida law, and plaintiffs that rely on false statements to their detriment have every right to pursue damages against those that misrepresent a material fact.  In some cases, lying parties may be prosecuted for fraud.  But you also have a right to pursue your claim in civil court to recover damages.  There are two types of misrepresentation, intentional and negligent misrepresentation.  If you or a family member have suffered damages due to misrepresentation, contact Bryan W. Crews today for an evaluation of your claim.

Prima facie is a Latin term used in the law and it means “on its face” or “at first sight.”  To establish a prima facie case of intentional misrepresentation, the plaintiff must show that the defendant (1) made a misrepresentation, (2) scienter, meaning the defendant knew the statement was, (3) an intent to induce reliance on the misrepresentation, (4) plaintiff’s reliance on the false statement was the cause of the harm, (5) the plaintiff’s reliance was justified, meaning the statement was not obviously false, and (6) the plaintiff suffered damages.

Generally, the misrepresentation must be of a material past or present fact.  In a typical misrepresentation case, reliance on a misrepresentation of opinion will not satisfy the plaintiff’s burden of establishing a prima facie case.  A part from certain transactions, such as real estate, there is no general duty to disclose a material fact.  Withholding material facts is not actionable unless by statute or some other legal requirement the defendant was required to make disclosures.  Fiduciary relationships and real estate transactions are examples where defendants may be required to make certain disclosures.  Actively concealing material facts is also actionable.  While there may not be a duty to disclose generally, making certain facts undiscoverable may constitute active concealment.

Scienter is another Latin term often used in the law to connote intent or knowledge of wrongdoing.  For example, in the sale of a business, if the owner of a company misrepresents last year’s profits as being $50,000 greater than actual profits, scienter is present.  However, the same is true if the owner of the company makes this same statement without even reviewing his financial records.  Representing profits and losses without even reviewing financial regards would constitute reckless disregard as to truth or falsity.

The next element is fairly straightforward.  The plaintiff must show that the defendant intended to induce reliance.  In the previous example, if the owner of a company represents profits and losses in hopes of a selling a business, that representation is designed to induce the buyer to act or refrain.  It is not a benign statement.

Without causation, the plaintiff has no case.  If the misrepresentation of fact does not cause the plaintiff’s injury, then there is no prima facie case.  The plaintiff must show actual reliance on the statement.

Justifiable reliance is perhaps the most interesting element of establishing a prima facie cause of intentional misrepresentation.  In short, this means that plaintiff’s cannot bring a claim for false statements that a reasonable person would recognize as obviously false.  Outlandish or bizarre representations made by the owner of a business cannot justifiably be relied upon.  The same is true when the plaintiff investigates a misrepresentation and learns it is false.  There is no duty imposed on plaintiffs to investigate.  But, once a plaintiff investigates and learns the representation is false, he cannot then claim that he was justified in relying on the misrepresentation.

Lastly, the plaintiff must show actual pecuniary loss.  It is not enough to prove that the defendant misrepresented a material fact, reliance, and causation.  Courts will not police misrepresentations a part from actual economic loss.

The prima facie elements for negligent misrepresentation claims are different, but the main difference is that the defendant breached a duty toward a particular plaintiff.  Analyzing negligent misrepresentations does not require a finding that the defendant intentionally misled the plaintiff.  Once a duty of care is established, then the plaintiff may argue that this duty was breached when the defendant failed to accurately represent a product of service.  This claim is most often seem in commercial settings.

If you have been deceived or misled due to the intentional or negligent misrepresentations of another, call Bryan W. Crews today, your Orlando personal injury attorney.

When two or more defendants act to cause an indivisible injury to a plaintiff, each defendant is jointly and severally liable for that injury.  Meaning, each defendant is liable to the plaintiff for the entirety of damages.  In jurisdictions that apply joint and several liability, each defendant is liable even if they acted independent of one another.  If the defendants act independently, and it is possible to determine which injuries were caused by each defendant, then the damage liability will be apportioned among the defendants.

Jointly liable defendants are each 100% responsible for compensating the plaintiff.  Conversely, when fault is proportioned among severally liable plaintiffs, they only owe the plaintiff compensation according to their degree of fault.  However, under the doctrine of Joint and Several Liability, the plaintiff can collect his judgment from any defendant as if they were jointly liable.  The majority of jurisdictions still maintain some form of Joint and Several Liability.

In 2006, Florida abolished Joint and Several Liability.  A landmark decision from the Florida Supreme Court demonstrates the shift away from joint and several liability.  In Walt Disney World Co. v. Wood, the plaintiff “was injured in November 1971 at the grand prix attraction at Walt Disney World (Disney), when her fiancé, Daniel Wood, rammed from the rear the vehicle which she was driving.”  The jury in Wood found that the plaintiff 14% at fault, her fiancé 85% at fault, and Disney 1% at fault.  Under the doctrine of Joint and Several Liability, Disney was 86% liable and ordered to compensate the plaintiff.  The Florida Supreme Court addressed “whether we should now replace the doctrine of joint and several liability with one in which the liability of codefendants to the plaintiff is apportioned according to each defendant’s respective fault.”  Analyzing the issue, the Court reasoned that “[t]here is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss.”  Ultimately, the Court held that “[i]n view of the public policy considerations bearing on the issue, this Court believes that the viability of the doctrine is a matter which should best be decided by the legislature. Consequently, we approve the decision of the district court of appeal.”  That came to fruition over time, and in 2006 the Florida legislature completely abolished the doctrine.

The import of this legislative decision is that plaintiffs can no longer recover damages from one defendant.  Like the plaintiff in Wood, plaintiffs in Joint and Several Liability jurisdictions will proceed with claims against multiple defendants, even if most of them are not solvent, so long as one of the defendants has deep pockets.  Under the doctrine of comparative liability, Florida’s replacement for Joint and Several Liability, Disney would have only owed the plaintiff in Wood for 1% of the liability.

Joint and Several Liability gives plaintiffs a greater chance of recovery but can be unfair to defendants.  Comparative liability apportions fault and only obligates defendants respective of their fault.  This system of apportioning fault can also present greater challenges for plaintiffs during settlement negotiations.  If you or a loved one have been injured, contact Bryan W. Crews, an Orlando personal injury attorney.  Calculating damages can be difficult, and Bryan W. Crews will work tirelessly on your behalf to secure the greatest possible outcome.

When a plaintiff undertakes a dangerous task or activity, the law will generally not allow recovery for any damages if the plaintiff assumed the risk.  This basic principle is referred to as Assumption of Risk, and its parameters have been narrowly defined under Florida law.  The assumed risk may be express or implied and the defendant must show that the plaintiff knew the risk and voluntarily assumed the risk.  However, a recent Florida decision reiterates the narrow application of this principle as previously held by the Florida Supreme Court.

In Petruzella v. Church of the Rock of Palm Coast, the District Court of Appeal of Florida, Fifth District, decided on May 19, 2017, the appellate court held that “the doctrine of express assumption of the risk should not be expanded beyond express contracts not to sue and injuries resulting from contact sports.”  The plaintiff in Petruzella, a “volunteer musician drummer and member of the Church on the Rock of Palm Coast”, sued his church after “he tripped on the bass player’s unsecured cord and fell off the stage during a rehearsal. As a result of the fall, he sustained substantial injuries.”  Evidence showed that the plaintiff performed on the church’s stage “at least three to four times a week” starting in 2009.  The church moved for summary judgment arguing that the plaintiff was familiar with the stage, he assumed the risk of performing, and the dangerous condition was open and obvious.

The appellate court in Petruzella held that the “trial court’s finding that Mr. Petruzzella expressly assumed the risk of performing on that stage is contrary to the law of Florida regarding express assumption of risk, implied assumption of risk, and principles of comparative negligence.”  The appellate court explained that the Florida Supreme Court had narrowed the application of the doctrine of Assumption of Risk in a 1977 decision and again in 1989.  In those decisions the Court held that express contracts not to sue, and injuries sustained from contact sports were the only cases in which the doctrine was applicable.  The case was remanded to the trial court to be evaluated under comparative negligence.

Comparative negligence limits the amount a plaintiff can recover by apportioning fault between the parties.  Rather than a complete bar to recovery under the doctrine of Assumption of Risk, comparative negligence, as applied in the Petruzella case, would mean that the plaintiff’s recovery is limited if the jury finds that he contributed to his injury.  As a general rule, depending on how this doctrine is applied in your jurisdiction, this is advantageous for plaintiffs.

Plaintiffs that suffer injuries during the course of participating in a contact sport may be barred from recovery if the defendant asserts the affirmative defense of Assumption of Risk.  For example, a hockey player that sustains injuries from a check, a trip, a puck, or any other contact may be barred from recovery because they assumed the risk of injury when they decided to participate in a contact sport.  In Kuehner v. Green, a case decided by the Florida Supreme Court in 1983, it held that “[i]f contact sports are to continue to serve a legitimate recreational function in our society express assumption of risk must remain a viable defense to negligence actions spawned from these athletic endeavors.”  There, the Court evaluated whether a plaintiff who was “injured as the result of a karate takedown maneuver executed by [the defendant] during a sparring exercise at [defendant’s] home” could recover from the defendant.  The Court explained that “[w]hen a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.”

If you have been injured, contact Bryan W. Crews, your Orland personal injury attorney.  Bryan W. Crews and his staff will evaluate your case, and work diligently on your behalf to protect your rights.

Waiting to contact an attorney can be costly for some personal injury victims.  As times goes by, evidence may be lost, memories fade, investigators may take statements, and insurance companies may pressure you to settle.  Waiting may even cost you your case.  Contacting Bryan W. Crews, an Altamonte Spring personal injury lawyer, immediately after an injury or accident could mean avoiding a complete bar to recovery.

Statutes of limitation give plaintiffs a limited amount of time to sue, or they forfeit their claim.  In Florida, § 95.11 covers the statutes of limitation in personal injury cases.  The facts and circumstances of your claim will dictate which statute of limitation applies.  Some injuries may require that you bring a claim in as little as two years before being barred from recovery.

How long do I have to file my claim?

Claims for negligence must commence within four years from the date of the injury.  Negligence is carelessness, or an unreasonable course of action that results in injury to the plaintiff.  Other more specific claims give plaintiffs less time.

Plaintiffs bringing an “action for professional malpractice,” according to the statute, have two years.  Unlike the general negligence deadline, personal injury claims against professionals may be brought “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.”  Meaning, some injuries do not manifest themselves right away, and when they do, plaintiffs may not know the cause of their injury either.  The Florida legislature allows what is often called tolling.  Tolling puts a pause on the clock.  It would be unfair to start the two year time window from the date of the accident if you do not know you are injured, or do not know the source of your injury.

This is particularly important in medical malpractice cases.  A common instance of medical malpractice is leaving surgical material inside of a patient.  Every year thousands of patients suffer when a sponge or medical instrument is sown up inside of a patient.  This particular injury is prone for later discovery because the offense is out of sight.  Florida law requires medical malpractices claims to be filed within two years from the date of the incident, or two years from when the injury is discovered.  However, the statute also provides that “in no event shall the action be commenced later than 4 years from the date of the incident.”

Negligence or injury can occur over a period of time, and a series of events may be relevant to establishing liability in your case.  In Silva v. Baptist Health South Florida, Inc., the United States Court of Appeals for the Eleventh Circuit applied Florida’s statute of limitations for negligence.  There, the court ruled that events occurring prior to the statute of limitations could not be used to establish liability, but could be used to determine “whether the hospitals had the requisite knowledge to establish deliberate indifference during Plaintiffs’ subsequent hospital visits.”

Bryan W. Crews and his dedicate staff are standing by to assist the needs of personal injury victims in Altamonte Spring and throughout the state of Florida.  Do not hesitate to contact Bryan W. Crews for a case evaluation.

Those injured as a result of negligence often do not realize what they are entitled to financially, and should speak with Bryan W. Crews, your Orlando, Florida, personal injury lawyer.

In 1992, Stella Liebeck, an elderly woman from New Mexico was severely burned, receiving third degree burns on sixteen percent of her body.  Ms. Liebeck spent eight days in the hospital where she received skin grafts.  In total, her recovery lasted two years.

The cause of Ms. Liebeck’s severe burns?  McDonald’s coffee brewed at dangerously high temperatures.  Perhaps you have heard of the case.  Ms. Liebeck’s case is often cited as support for the proposition that some personal injury cases are frivolous.  However, Ms. Liebecks injuries were not frivolous.

At the outset, desiring to cover her medical costs, Ms. Liebeck only demanded $20,000 in damages to compensate for her $13,000 bill.  McDonald’s refused, and offered a mere $800.  With the help of legal counsel, Ms. Liebeck sued, and was eventually awarded $160,000 in compensatory damages, and $480,000 in punitive damages.

Personal injury victims in Orlando, Florida, seeking legal representation can contact Bryan W. Crews for a case evaluation.  Ms. Liebeck’s story is common.  Personal injury victims often do not realize all that they are entitled to, and may even face resistance when seeking financial compensation.  Bryan W. Crews works tirelessly to seek the full compensation for his clients.

The facts and circumstances of personal injury cases are often complex, and require diligent representation to navigate the intricacies of Florida law.  Bryan W. Crews, a Orlando, Florida, personal injury attorney, can help you or your family member understand compensatory damages, punitive damages, the applicable statute of limitations, and the pure comparative negligence rule.

Each case is different, and results are not guaranteed.  That is why Bryan W. Crews and his dedicated staff work tirelessly to represent the interests of Orlando, Florida residents.  Like Ms. Liebeck, you may not know be aware of all legal options available to you for recovery.

What many do not know about Ms. Liebeck’s case is that McDonalds was brewing its coffee significantly hotter than industry standards.  During the course of Ms. Liebeck’s trial, the jury learned that hundreds of others were burned by McDonald’s coffee.  In other words, they knew, and did nothing.

If you or a family member have been the victim of negligence, please contact Bryan W. Crews today, your Orlando personal injury lawyer to receive an evaluation of your case.

A recent development in personal injury law could mean increased awards for plaintiffs.  Your trusted advisors at the offices of Bryan W. Crews are ready to evaluate your case and advocate on the behalf of plaintiffs in Oak Ridge, Florida.

This June, in North Broward Hospital District v. Kalitan, the Florida Supreme Court ruled that a Florida statute limiting the amount that a personal injury victim could recover in noneconomic damages was unconstitutional.  The statute, § 766.118, capped the amount that a plaintiff could recover for noneconomic damages at $500,000 and $750,000 for practitioners and nonpractitioners respectively.  Finding the law unconstitutional, the court held that the limits “arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries.”

Noneconomic damages are sometimes referred to as pain and suffering damages.  Economic damages are generally awarded to cover the cost of medical expenses and your inability to earn, or loss of, income.  Medical bills and wages are easy to quantify but are often not nearly as detrimental as the emotional anguish that plaintiffs suffer.

In the North Broward case, the plaintiff went to the hospital for carpal tunnel surgery.  When anesthesia was administered, “one of the tubes perforated Plaintiff’s esophagus.”  After surgery, the plaintiff complained of “excruciating pain in her chest and back.”  The anesthesiologist ordered a drug for the pain and sent the plaintiff home.  The next day the plaintiff was found unresponsive, rushed to the hospital, and underwent “lifesaving surgery to repair her esophagus.”  In addition to a series of surgeries, and her ongoing recovery, the plaintiff suffered “serious mental disorders as a result of the traumatic incident.”

The plaintiff was awarded “$2 million for past pain and suffering and $2 million for future pain and suffering,.”  However, “the noneconomic damages award of $4 million was reduced by close to $2 million,” and then further reduced “by about $1.3 million, as the Hospital’s share of liability was capped at $100,000 by virtue of the hospital’s status as a sovereign entity.”

Plaintiffs that suffer the same type of grievous and catastrophic injury as the plaintiff in the North Broward case will no longer have their pain and suffered damages limited by § 766.118.  Plaintiffs and their families suffer ongoing trauma that cannot be measured in terms of medical bills and wages.  The personal injury attorneys at the offices of Bryan W. Crews handle medical malpractice cases in Oak Ridge, Florida, and actively seek the fullest possible recovery for all our clients.