Injury accident

injury accident

The Type of Proof You Need for Your Florida Slip and Fall Claim

Posted By Alan Sackrin on September 25, 2014

In our last post, we discussed the steps you need to take after a slip and fall accident no matter where it happens. In Florida, for example, fall injuries happen all the time in fun places like restaurants, bar and grilles, hotels, and entertainment parks, as well as grocery stores, condo pools, and parking lots.

Gathering information to support your slip and fall injury claim at the time of the accident itself can be vitally important to proving your injury claim. However, once you have that raw data, other steps must be taken to insure that the information is given legal respect as concrete proof and formal evidence of your injuries and the damages you have suffered as a result.

To do this, Florida law establishes specific requirements for the type of proof needed to file a claim at each of these locations.

(1)?If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:

(a)?The 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

(b)?The condition occurred with regularity and was therefore foreseeable.

(2)?This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

What is important here is to recognize that Florida law requires the injury victim to prove that the premises owner was to blame for what happened, I.e. was “negligent.”

You have to prove with authenticated, admissible evidence that:

  1. theaccident happened through evidence like witness statements and photos from the scene,
  2. you have to show that you were injured through things like medical bills and doctors’ statements, and
  3. you have to prove that the premises owner was knowledgeable and didn’t respond (“was negligent”)  at the time of your accident.

Circumstantial Evidence the Plaintiff Must Provide

Circumstantial evidence can be very critical in a slip and fall injury case. Since the statute requires the injury victim to prove the owner’s actual or constructive knowledge of the “dangerous condition” and the need to take “action to remedy it,” you need to have proof to support your claim of this knowledge from someone who’s your opponent here, who is denying liability.

Circumstantial evidence important in a Florida slip and fall case to establish the premise owner’s knowledge can include:

1. Weather reports that confirm a heavy rain on the day of the accident, showing that the owner should have known about the slippery conditions causing the fall. See, Doudeau v. Target Corporation.

2. Store surveillance camera footage of the parking lot and steps taken by premises owner after it rained. See, Walker v. Winn-Dixie, Inc.

3. Past incident reports at the store for similar slip and fall injuries to the one suffered by the plaintiff when she slipped and fell on spinach that had falled onto the grocery store aisle. See, Publix v. Santos.

Often, it’s necessary to have an experienced personal injury lawyer at your side when you are trying to build evidence of the premises’ owner’s actual or constructive knowledge of the dangerous condition and their failure to take action to fix it.

Proof of damages and proof of the accident itself may be evidence that is easy enough to locate and document; however, gathering legal evidence of the knowledge of the owner may require formal discovery through an official lawsuit if the owner is denying responsibility.

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Alan Sackrin adds value to his clients because he will go to trial when the insurance company denies coverage or doesn’t make a settlement offer that he believes is fair. Alan won’t send his client to a different lawyer to file a lawsuit, he’s the lawyer that other lawyers send their cases to when they are unable to obtain a reasonable settlement offer.

What Do You Do If You’re Injured in a Slip and Fall? First Steps to Take in a Fall Injury Claim

Posted By Alan Sackrin on September 23, 2014

No one expects to be hurt as they go about their busy day. Slip and fall accidents are always unexpected: you – or your wife, your mother, your sister or your son – are leaving the restaurant, shopping at the mall, or just walking through the office parking lot, and suddenly a fall, and an injury.

What should you do if you’re hurt in a slip and fall accident?

1. The first thing, of course, is to get medical attention. Some slip and fall injuries may seem minor but these minor injuries can be deceptive. It’s very important in any fall injury to have a medical professional check things out to make sure more serious injuries are discovered and treated (like a torn ligament).

2. After medical treatment, the second thing is to consider where you were when the accident happened. Slip and fall accidents are common in locations like:

  • Restaurants
  • Grocery store aisles
  • Stores or mall areas
  • Condominium common areas (including pool areas)
  • Parking Lots

You will need to know who the responsible parties are for the location of the accident. Who owns the property? Who manages it? Who is responsible for its care and upkeep? Take notice of signs and notices in the location. You may have to investigate these ownership and management issues later and in detail. Determining all the responsible parties are for a particular location can be a difficult task.

3. Before you leave the scene, look for people who saw what happened. Approach them and ask for their help as possible witnesses for your accident. Ask them to write down things like:

  • their name
  • heir phone number
  • their e-mail
  • their mailing address.

4. Before you leave the scene, call the police. You may need the officer’s written police report to substantiate your injury claim and your claims for economic damages (like lost wages) as well as general damages (like pain and suffering).

This is different from reporting the accident to the manager of the establishment.  You should report what happened to the restaurant manager, grocery store manager, etc. and they should have accident reporting procedures in place to deal with documenting what has happened.  However, this will be biased toward the establishment itself (geared toward a defense perspective).   Having a police report is different from this internal reporting by the premises owner.  Get the police report for your claim — even if (especially if) the manager says it’s not necessary.

5. Before you leave the scene,take photos of the scene. Videos are good, too. Make sure to include the area of the fall as well as its surroundings and try to capture faces of the witnesses as well as how you got there (your path to the scene of the accident). Include things like:

  • Substances like grease on the restaurant floor
  • Water or ice on a condominium common area
  • Fruit or vegetables laying on the grocery aisles
  • Trash, cracks, curbs, or concrete barriers in a parking lot.

What Do You Do With This Information?

Once you have all this information, and if you have an injury, you are ready to begin building your damages claim against the “premises owner” in your “premises liability” slip and fall claim.  The information you gather will be used to substantiate your right to be paid damages by those responsible for your accident.

It may be that your claim will be promptly paid without a hassle.  However, if your right to compensation for your injuries is not respected and recognized, then you need to advocate for your rights in formal settlement negotiations or even a lawsuit.

Have questions?  Feel free to ask an experienced Florida slip and fall lawyer.  Most, like our law firm, are happy to chat with you and answer your questions at no charge.

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Alan Sackrin adds value to his clients because he will go to trial when the insurance company denies coverage or doesn’t make a settlement offer that he believes is fair. Alan won’t send his client to a different lawyer to file a lawsuit, he’s the lawyer that other lawyers send their cases to when they are unable to obtain a reasonable settlement offer.

Lost Wage Claims in Florida Injury Cases: What You Need to Know

Posted By Alan Sackrin on September 22, 2014

This article discusses lost wage claims related to accident and injury claims in the State of Florida. Injuries resulting from motor vehicle accidents, slip and fall accidents, and on the job work incidents can all form the basis of a lost wages damage claim under Florida law.

This article answers general questions about Florida lost wage claims including:

  • What are lost wages in Florida?
  • How are Lost Wages Determined?
  • How do you claim Lost Wages and what documentation do you need to do so?
  • Are Lost Wages Covered under PIP – Fla Stat. 627.736?
  • How are Lost Wages covered under Workers’ Compensation Law?
  • How does a jury calculate lost wages in a Florida injury claim?

Let’s start with the basics; Florida state law provides that injury victims can be reimbursed for their lost wages after an accident. Lost wages are part of an injured party’s personal injury claim when they have been hurt in an accident caused by another person’s negligence. Additionally, workers are protected under Florida workers’ compensation law allowing for the recovery of their lost wages after an on the job injury.

What Are Lost Wages?

Look in the dictionary, and you can find “lost wages” defined in simple terms as the “potential earnings the insured was unable to receive due to an injury or disability.” [1] However, defining “lost wages” can be also be complicated, especially when things like Florida Statute 448.01 are involved. In Florida Statute 448.01, “wages” are explained as a full day’s work being a ten (10) hour working day, and all work thereafter being considered overtime for labor law protection purposes. [2]

However, when someone is hurt in an accident, their personal injury claim will include consideration of their work details at the time of the event. A Personalized, individual wage history (which may include a history of hours worked per day and per week, hourly wages and/or salary, gratuities received like meals and/or tips, bonuses, and may state whether or not the injured party was paid during their absence) will be used to support a claim for compensation to cover those days, weeks, or months that they cannot do their job and earn a living.  Essentially, your lost wages are the income that you couldn’t earn because you were hurt in an accident. Your “lost wages claim” will be determined by your documented personal financial income records at the time of the accident (This may be a problem for some self-employed workers).

Remember, a “lost wages” claim is part of a larger accident claim that includes things like medical expenses, EMS charges, long term care costs, and other “economic damages” that make up





an accident claim. (Economic damages are those damages that can be documented with things like invoices or other paperwork, unlike “general damages” like pain and suffering that need expert opinion and other types of support. Economic damages, once fully documented, are harder to challenge by the opposition and are easier to get paid when a demand is made).

How Are Lost Wages Determined?

Lost wages are determined using paperwork from your employer that confirms the exact amount of money that you would have received if you had not been hurt in the accident. Other documentation will be needed, as well, to support the amount of time that you were unable to work and to prove that your injuries kept you from doing your job.

For example, if you break your leg and you work as a dancer, then you will not be able to return to your job until your leg is completely healed and the doctor approves you going back to work. However, if you break your leg and you work as a graphic artist, then you may have problems getting to and from your job, but you should be able to sit at your design table and do a full day’s work while you still have a cast on that broken leg and it’s still healing. In this comparison, the dancer’s lost wages claim will be higher than the graphic designer’s lost wages claim because the dancer has a longer time period where she is not able do her work.

Additionally, “lost wages” can include a change in your ability to do your job. If you are permanently injured in the accident and cannot do the same type of work as you were doing before the accident, then your “lost wages” claim will expand to include “lost earning capacity.”

In the above example, if the graphic designer lost part of her ability to use her leg in the accident, then there would be some compensation for that loss but it might be paid in a different type of claim than lost wages. However, if the dancer lost partial use of her leg, then she would be able to extend her “lost wages” claim to “lost earning capacity,” since she would no longer be able to dance as she could before the injury.

How Do You Claim Lost Wages? What Documentation Do You Need To Do So?

Lost wage claim documentation includes things like:

Physician’s Written Opinion — a letter from your doctor or treating physician should be included with your claim. This letter should be signed by the treating physician, and it should include his or her professional opinion about the extent of your injuries and how they have compromised your ability to do your job.

The doctor should include supporting documentation for his opinion, too. Details should be provided that include treatments and therapies that you were given (along with dates and times); medications and prescriptions given to you both during and after any hospitalization; long-term therapies, a disability slip, and treatments that have been proscribed for you; and all medical bills related hereto.

Employer’s Confirmation — a letter from your employer that confirms you were employed on the date of the accident and that you have missed work because of your injuries. Most Human Resources departments are well-versed in how to document a lost wages claim for an employee. Most will know to include things like salary details; history of overtime if you are a non-salaried worker; bonus history; and other wage and income information.

What if you are self-employed? Then you may need to provide things like past tax returns and bank statements to confirm your income and revenue streams at the time of the accident.

Other Documents: Police Reports And The Names of All Treatment Facilities — Some insurance companies, when making a lost wage claim, will ask that the claim be accompanied with a police report that documents the accident itself. Of particular import here for purposes of calculating lost wages is the time and date of the accident because this is the starting point for calculation of the monetary lost wages amount.  The insurance company will also want to the know all places the injured party received treatment in order to verify the injuries and to see when the injured party went for treatment.

Are Lost Wages Covered Under PIP?

Florida is a “no fault” insurance state. This means that Florida law requires all drivers to carry “no fault” automobile insurance coverage that will provide them with a baseline of personal injury insurance coverage if they are in a traffic accident. This coverage is called “Personal Injury Protection” or “PIP.” [3]

In 2013, Florida’s PIP coverage was changed by the Florida Legislature. You need to be aware that PIP will cover the maximum amount of $10,000 as long as your physician confirms that you have an “Emergency Medical Condition“ at your first medical visit, and you must be seen by the doctor within fourteen (14) days of the accident.

Pursuant to Florida Statute 627.736, lost wages remain covered as part of Florida’s PIP coverage.[3] These lost wages are covered regardless of whether or not you were at fault in causing the crash.

PIP coverage of lost wages is in addition to: (1) liability bodily injury coverage on the insurance policy of the person who caused the accident in which you were hurt; and in addition to (2) the coverage provided by your own uninsured / under-insured insurance coverage on your policy in the event that the at-fault driver has insufficient coverage to pay for your injury claim.

According to the PIP Statute, the coverage provided is as follows [5]:

Sixty percent of any loss of gross income and loss of earning capacity per individual from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his or her household. All disability benefits payable under this provision must be paid at least every 2 weeks.

Lost Wages Under Workers’ Compensation Law

If you are hurt on the job in Florida, then special laws come into play to cover your accident and your injury claim. Workers hurt on the job in Florida look to the Florida Workers’ Compensation Act not only for what damages are coverage but how claims are made and what kinds of damage claims will be paid.

For instance, if you are hurt in an accident at work then you will not be able to sue for punitive or exemplary damages in a lawsuit as you might be able to do in a standard car crash case involving gross negligence. Currently under Florida law, you must seek relief through the Workers’ Compensation system for your lost wages as well as your other injury claims.

This system is established under statutes enacted by the Florida Legislature and how your lost wages claim is documented and pursued is specific to the rules and regulations set up within this Workers’ Compensation System.

NOTE: The extent of coverage provided to Florida workers by the current Florida statutes may change in the future and the inability of Florida workers to sue in a private civil lawsuit for injury damages may be nearing an end.

1.  The Florida Workers’ Compensation Act was held to be unconstitutional by a Miami court in August 2014; this case is being appealed to Florida’s 3rd Circuit Court of Appeals. See, Florida Workers’ Advocates v. State of Florida where Judge Jorge E. Cueto of the 11th Judicial Circuit Court ruled that the present law is unconstitutionally prohibitive as the ‘exclusive remedy’ offered to Florida workers for lost wage claims (and injury damages).[6]

2.  Additionally, the Florida Supreme Court is presently considering another challenge to the current Florida worker’s compensation law which may also dramatically change certain worker’s compensation coverage for lost wage and injury claims based upon on the job injuries. The High Court is considering firefighter Bradley Westpahl’s challenge in Westphal v. City of St. Petersburg. where the 1st District Court of Appeals held the Florida Workers’ Compensation statute to be unconstitutional. [7]

If the Florida Supreme Court agrees with the lower appellate court’s determination (or with other challenges to the current statutory framework, such as Judge Cueto’s ruling), then how lost wages and other injury claims are paid for workers hurt on the job in Florida will be radically changed.

How Does A Jury Calculate Lost Wages In A Florida Injury Claim?

There are times when demand letters and attempts at negotiating a reasonable settlement after an accident just don’t work. In this situation, a lawsuit must be filed in order to get the responsible parties to take responsibility for the harm that has been done to the injury victim. Filing a lawsuit is a big step; however, there are several steps in the litigation process where settlement of a claim can still occur.

If the other side remains stubborn or unreasonable, the case may proceed to trial.  Then, the decision of compensation will be given to the jury, as fact-finder, to make a determination of what they believe is fair and just. Here, evidence is provided at trial of the victim’s injuries, long-term prognosis, wage history, and other elements of his lost wages claim and other elements of his overall injury claim.

The same documentation and support for lost wages discussed above is provided for the jury’s consideration. In some cases, expert testimony in the form of medical experts or experts in particular kinds of occupational skills may also be involved as added support for the plaintiff’s claim.

For instance, in the above example, a professional dancer might testify as an expert witness for the injury victim, explaining to the jury the number of years in the career of most professional dancers or how the full use of both legs are imperative for the type of dancing the injury victim did on the job before the accident. This would help support the victim’s lost wages in future earning capacity claim.

Once all the evidence has been presented to the jury, which may or may not include the victim testifying on the witness stand about things like his/her inability to work a full day or change in his/her ability to do the same kind of work due to the injuries sustained in the accident, then the jury will be sent back to the jury room to deliberate and decide what amount the injured person rightfully should receive.

However, before the jury is sent to deliberate, the judge will instruct them with specific “jury instructions” on how to calculate these damages. Using the instructions provided by the judge, the jury will then tally an amount to be awarded as lost wages, both for the past as well as any future wages in the form of lost earning capacity, using the evidence provided during the trial.

Conclusion

In Florida, if you are the victim of an accident and suffer bodily injury, then Florida law affords you all types of protections including  lost wage claims. These can include past wages as well as future lost wages due to a change in your ability to perform the work you did prior to the injury or accident. Your lost wages may be paid from a variety of sources, including your own insurance coverage (PIP, under-insured coverage); as well as the coverage of the person at-fault or that of Workers’ Compensation.

Not having the ability to pay one’s bills as they come due can be extremely stressful and one of the most frustrating parts of an accident’s aftermath. Luckily, Florida law provides remedies to help injury victims get reimbursed for their lost wages after an accident so that justice may prevail.

Endnotes

[6] See, Harrison, Sheena, “Florida exclusive remedy ruling may upend workers compensation system ,” Business Insurance, August 31, 2014.

Source: southfloridainjuryaccidentblog.com

Category: Accident

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