Civil Litigation - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. /// Florida Premises Liability Law – Open & Obvious and Building Code Violations

Jeffrey P. Gale, P.A. — Tue, 31 Mar 2026 18:17:23 GMT

The open and obvious doctrine, as applied in Florida premises liability cases, has become a vexatious legal doctrine that is too often used to support summary judgment despite longstanding case law holding that the obvious nature of a hazard does not necessarily discharge a landowner’s duty to maintain reasonably safe premises. That is precisely what occurred in Sutley v. Ocean Trillium Suites, Inc., 422 So. 3d 1241 (Fla. 5th DCA 2025), where the trial court granted summary judgment based on the open and obvious nature of the condition, effectively allowing the obviousness of the hazard to eliminate the landowner’s duty rather than submitting issues of comparative fault and foreseeability to the jury. The Fifth District Court of Appeal reversed and remanded the trial court’s ruling.

Under Florida law, property owners and those in possession or control of premises owe invitees a duty to maintain the premises in a reasonably safe condition and to correct or warn of dangerous conditions of which they knew or should have known. See Frazier v. Panera, LLC, 367 So. 3d 565, 568 (Fla. 5th DCA 2023); Parker v. Shelmar Prop. Owner’s Ass’n, 274 So. 3d 1219, 1221 (Fla. 5th DCA 2019); Trainor v. PNC Bank, Nat’l Ass’n, 211 So. 3d 366, 368 (Fla. 5th DCA 2017). Florida’s open and obvious doctrine is a principle in premises liability law that can limit or eliminate a property owner’s liability when a dangerous condition is so visible and apparent that a reasonable person would notice and avoid it. However, an open and obvious condition does not automatically eliminate the landowner’s duty, but it can affect duty, breach, and comparative negligence depending on the circumstances.

While application of the open and obvious doctrine by trial courts to bar claims against defendants has been upheld on appeal in some Florida cases, the preferred procedure is to present the issue to the jury, as the obviousness of a condition typically implicates comparative negligence rather than eliminating a landowner’s duty as a matter of law.

In Sutley, the alleged dangerous condition consisted of an abrupt change in elevation between the sidewalk and the ramp leading to the Appellee’s pool area. Appellant presented expert testimony that the condition constituted a building code violation. The violation of the building code constituted prima facie evidence of negligence, reflecting a breach of the duty to maintain reasonably safe premises and sufficient to defeat summary judgment. See Dudowicz v. Pearl on 63 Main, Ltd., 326 So. 3d 715, 719 (Fla. 1st DCA 2021) (reversing summary judgment where hotel’s violation of building code provisions constituted prima facie evidence of negligence based on a breach of the hotel’s duty to maintain its premises in a safe condition); Parker, 274 So. 3d at 1221 (holding that summary judgment was improper where plaintiff’s expert opined that the placement of a wheel stop near defendant’s building constituted a dangerous condition in violation of the Florida Building Code, which constituted prima facie evidence of negligence); Cruz v. Wal-Mart Stores E., LP, 268 So. 3d 796, 798-800 (Fla. 4th DCA 2019) (holding that expert opinion that a raised manhole cover was a dangerous condition in violation of the Broward County Code was sufficient to defeat defendant’s motion for summary judgment); Doering v. Vills. Operating Co., 153 So. 3d 417, 418 (Fla. 5th DCA 2014) (reversing summary judgment where evidence was presented that a warped board on defendant’s deck violated a building code provision requiring any elevation changes over a quarter inch to be beveled); Holland v. Baguette, Inc., 540 So. 2d 197, 198 (Fla. 3d DCA 1989) (reversing summary judgment where the affidavit of plaintiff’s engineer supported the allegation that a step over was built in violation of the South Florida Building Code, which, if proven, would constitute prima facie evidence of negligence). Accordingly, we reverse and remand for further proceedings.

In reversing the trial court, the appellate court held that the jury should determine (1) whether the defendant breached its duty to maintain the premises in a reasonably safe condition, (2) whether the condition was so open and obvious as to eliminate the property owner’s duty, and (3) whether the dangerous condition was the proximate cause of the Appellant’s injuries.

In personal injury cases, summary judgment on liability is seldom appropriate because these cases typically present genuine issues of material fact that are exclusively for the trier of fact, usually a jury, to decide.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Las Compañías de Seguros de Compensación Laboral Suelen Estar Exentas de las Acciones Legales Previstas en el Estatuto de Florida 624.155

Jeffrey P. Gale, P.A. — Fri, 02 Jan 2026 16:58:12 GMT

El Estatuto de Florida 624.155 otorga a las personas el derecho a demandar a las compañías de seguros si gestionan de forma indebida las reclamaciones y causan perjuicios económicos. Sin embargo, las aseguradoras de compensación laboral están exentas de estas disposiciones. El artículo 440.11(4) establece lo siguiente:

“Sin perjuicio de lo dispuesto en el artículo 624.155, la responsabilidad de una aseguradora ante un empleado o ante cualquier persona con derecho a interponer una demanda en nombre del empleado será la establecida en este capítulo, que será exclusiva y sustituirá a cualquier otra responsabilidad”.

Esto significa, en esencia, que los trabajadores lesionados suelen estar limitados a los recursos estipulados en el Capítulo 440 de los Estatutos de Florida al tratar con las aseguradoras de compensación laboral. En la mayoría de los casos, estos recursos se adaptan a las circunstancias.

Sin embargo, existe una excepción importante a los recursos del Capítulo 440.

En Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla 2005), la Corte Suprema de Florida declaró que los empleados pueden presentar demandas civiles independientes por agravio contra las aseguradoras por conducta que cause daño intencionalmente.

La Corte distinguió entre mala conducta deliberada y flagrante y simples demoras procesales o mala fe habitual en la tramitación de la reclamación de indemnización del empleado, contempladas en la disposición de exclusividad de responsabilidad del artículo 440.11(4) de los Estatutos de Florida. El Tribunal explicó:

“Con respecto a la responsabilidad de una aseguradora de compensación laboral, el artículo 440.11(4) disponía que ‘sin perjuicio de lo dispuesto en el artículo 624.155, la responsabilidad de una aseguradora ante un empleado o ante cualquier persona con derecho a interponer una demanda en nombre del empleado será la establecida en este capítulo, la cual será exclusiva y sustituirá a cualquier otra responsabilidad’. En esencia, el sistema está diseñado para que los empleadores y las aseguradoras asuman la responsabilidad de cantidades limitadas de beneficios médicos y por pérdida de salario resultantes de lesiones laborales, independientemente de la culpa, a cambio de limitaciones en su responsabilidad, mientras que el empleado recibiría, en consecuencia, una compensación limitada por pérdida de salario y beneficios médicos de forma rápida y eficiente. El sistema de compensación laboral nunca fue diseñado ni concebido para actuar como un escudo para quienes incurren en conductas intencionales que causan lesiones a los trabajadores a través del propio proceso de beneficios”.

Las disposiciones de inmunidad del artículo 440.11(4) son formidables; solo una conducta verdaderamente atroz puede superarlas. Los hechos del caso Aguilera demuestran lo exigente que es ese estándar.

Se notificó nuevamente a la aseguradora que se requería atención urológica urgente porque la orina de Aguilera supuestamente había comenzado a oler a heces.
Cuatro días después, se le informó a Aguilera que sus beneficios de compensación laboral serían cancelados, a pesar del informe de dos médicos, incluyendo la opinión del propio médico de la aseguradora, de que no debía regresar al trabajo.
La aseguradora intervino y, de hecho, bloqueó la recepción de Aguilera de la medicación que le había recetado el médico de urgencias del hospital para su afección urinaria.
Posteriormente, la aseguradora volvió a denegar la solicitud de emergencia de Aguilera para la atención de un urólogo, alegando que no era médicamente necesaria. En ese momento, la aseguradora contaba con documentación médica que demostraba la falsedad de su postura y establecía claramente la necesidad médica de la atención.
El médico tratante de Aguilera informó a la aseguradora que su necesidad de una consulta urológica era urgente y que su condición se estaba deteriorando. El propio médico de la aseguradora le recetó a Aguilera varias pruebas de orina, y las citas fueron programadas por la enfermera de la aseguradora.
Sin embargo, uno de los peritos de la aseguradora intervino de nuevo y simplemente canceló unilateralmente algunas de estas pruebas médicas.
Las pruebas que finalmente se realizaron, específicamente una uretrografía retrógrada, revelaron que Aguilera tenía una fístula, o un orificio en la vejiga.
El perito de la aseguradora denegó la autorización para la cirugía de emergencia e insistió en una segunda opinión.
El perito se presentó en secreto en el consultorio del médico para la cita de Aguilera con un urólogo forense independiente (IME).
El perito instó a Aguilera a mentirle a su abogado y a engañarlo, diciéndole que no se había presentado en el consultorio, contrariamente a la realidad. La cirugía definitiva de Aguilera, cuya necesidad se había diagnosticado como de emergencia ya en junio de 1999, no fue finalmente autorizada ni aprobada hasta el 22 de marzo de 2000. Para entonces, según las acusaciones, Aguilera llevaba más de diez meses orinando heces y sangre.

La decisión de Aguilera repercutió en toda la industria aseguradora, lo que provocó una reestructuración inmediata de las prácticas de tramitación de reclamaciones para atender mejor las necesidades de los trabajadores lesionados. Si bien persisten algunos abusos, las faltas más flagrantes se han reducido en gran medida.

Prevalecer bajo el marco legal establecido por el caso Aguilera es excepcionalmente difícil; los hechos deben ser tan graves que resulten indignantes, y los daños resultantes deben ser permanentes y sustanciales. En consecuencia, solo se han presentado un número limitado de casos de este tipo.

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Contáctenos al 305-758-4900 o por correo electrónico (jgale@jeffgalelaw.com) para una consulta gratuita y confidencial y conozca sus derechos legales.

Jeffrey P. Gale, P.A. es un bufete de abogados con sede en el sur de Florida, comprometido con el sistema judicial y con la representación y la obtención de justicia para las personas: los pobres, los lesionados, los olvidados, los que no tienen voz, los indefensos y los desamparados, y con la protección de sus derechos frente a la opresión de corporaciones y gobiernos. No representamos a gobiernos, corporaciones ni grandes empresas.

Si bien nuestro objetivo es la pronta resolución de su asunto legal, nuestro enfoque es fundamentalmente diferente. Nuestros clientes son personas, no casos ni expedientes. Nos tomamos el tiempo necesario para establecer una relación con nuestros clientes, conscientes de que solo a través de una interacción significativa podemos satisfacer mejor sus necesidades. De esta manera, hemos podido brindar la mejor ayuda a quienes requieren representación legal.

Jeffrey P. Gale, P.A. // The Science of Looming Motion and Looming Threshold in Rear-End Motor Vehicle Collisions

Jeffrey P. Gale, P.A. — Fri, 19 Dec 2025 18:56:18 GMT

Rear-end collisions account for more than 25 percent of all roadway motor vehicle accidents. The reflexive response is to blame the driver of the approaching vehicle – the one who strikes the vehicle ahead. Florida law reinforces this instinct by creating a rebuttable presumption of fault against the trailing driver. Gulle v. Boggs, 174 So. 2d 26, 27–29 (Fla. 1965) (When “a defendant runs into the rear of a plaintiff’s automobile while the plaintiff is stopped for a traffic light or at an intersection, there is a presumption of negligence of the defendant … . The presumption provides a prima facie case which shifts to the defendant the burden to go forward with the evidence to contradict or rebut the fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, then the impact of ‘the presumption is dissipated.’ Whether the ultimate fact has been established must then be decided by the jury from all the evidence before it without the aid of the presumption.”)

That presumption, however, is not absolute. Law enforcement, courts, and personal injury practitioners should resist the temptation to stop their analysis there. Attentive, reasonable drivers can – and sometimes do – collide with the rear of a leading or stationary vehicle in broad daylight through no fault of their own.

Our firm, together with Attorney Sean Domnick, represented a client in litigation against a motor coach company and its driver arising from precisely such a scenario. Our client was operating his employer’s passenger bus when he struck the rear of a motor coach stopped in a through lane of travel. There was no traffic condition requiring the stop. The motor coach was not disabled; it had not run out of fuel, suffered a mechanical failure, or experienced any emergency. Nevertheless, it remained stationary in a live traffic lane.

Our client approached from behind in the same lane with an unobstructed view beginning approximately 2,500 feet away. There were no vehicles in front of or beside him in any lane. He observed the motor coach at a distance, but did not perceive that it was stopped until he was too close to avoid a collision. The result was catastrophic injuries. (Our client was extricated from his vehicle using the Jaws of Life and airlifted to the hospital.)

We retained multiple experts to address discrete aspects of the case. An engineer testified regarding speeds, distances, and stopping calculations. A trucking expert addressed industry standards and safety practices. Medical experts explained the severity and permanence of our client’s injuries, and an economist quantified past and future economic losses. None of those experts, however, was qualified to explain why a reasonably attentive driver can collide with a stationary vehicle without being negligent.

That explanation lies within the domain of human factors science.

We retained a leading human factors expert to address this critical question. Rather than attempting a technical exposition here, I will briefly describe – at a lay level – the most significant principles at issue: “looming motion and looming threshold.”

In roadway safety, looming motion concerns the human ability to perceive whether an object ahead is moving or stationary. Counterintuitively, a stopped vehicle in the roadway can be among the most difficult hazards to detect, even in broad daylight. At long distances, a stationary vehicle can produce visual information indistinguishable from that of a moving vehicle traveling at the same speed as the observer. In such circumstances, the absence of angular expansion delays recognition that the object ahead represents a hazard. Absent strong visual cues – such as warning triangles, visible occupants outside the vehicle, or signs of roadside activity – the human visual system may not immediately register that a vehicle ahead is not moving.

Closely related is the role of expectation. Human perception is influenced by what a driver reasonably anticipates encountering. Expectation can delay the recognition of danger. In our case, the collision occurred on our client’s regular route, one he had driven daily for more than ten years. The location – near the entrance to a major theme park – was specifically designed to allow commercial passenger vehicles to approach without interruption or delay. In all those years, our client had never encountered a vehicle stopped in this portion of the roadway without an apparent reason.

His reasonable expectation was that traffic would continue flowing smoothly toward the entrance gate located 800 to 1,000 feet ahead. Accordingly, although he saw the motor coach, he did not perceive that it was stationary. The combination of diminished perceptual cues and reasonable expectation created the perfect storm. While the motor coach driver had multiple safe alternatives and made an affirmative choice to stop in a through lane, our client – due to a scientifically explainable failure of perception – was deprived of any meaningful opportunity for cognitive choice.

The concept of “looming distance” is well established in human factors research. Mathematical models can determine the distance at which a stationary hazard should become perceptible to a reasonably attentive driver. Predictably, litigation focuses on the variables—such as vehicle speed—to be used in those calculations. In this case, however, both sides’ engineers agree on the speed at impact.

The “looming threshold” is the point at which the rate of angular expansion becomes sufficient for the human visual system to register that an object ahead is stationary or closing rapidly. This threshold is not subjective guesswork; it is a measurable and well-studied phenomenon grounded in vision science.

The looming threshold occurs later—often dramatically later—when:

The stopped vehicle presents a large, uniform profile (e.g., a bus or motor coach);
There are no visual cues indicating distress or abnormality;
The roadway geometry and traffic flow create an expectation of uninterrupted movement; and
Lighting and contrast conditions do not emphasize depth or closure.

Until the looming threshold is crossed, a driver may see the vehicle without perceiving it as a hazard.

Our human factors expert opined – using established science – that by the time a reasonably attentive driver would have perceived the motor coach as stopped, there was insufficient time or distance to avoid the collision. Importantly, all evidence supported that our client was, in fact, attentive.

It also bears emphasis that perception and reaction are not synonymous. Even after a hazard is perceived, additional time is required for cognitive processing and physical response.

This discussion is not intended to suggest that trailing drivers are never at fault. Clearly, many rear-end collisions result from inattention or negligence. The takeaway is more modest, but critical: lawyers must be willing to look beyond presumptions and examine the science. When they do, the results can be both professionally rewarding and profoundly meaningful to the client.

The case was tried before an Orlando jury, which awarded nearly $2,000,000 in damages and apportioned fault almost equally between our client and the corporate owner of the stopped motor coach.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Unlock Full Recovery: Using Subrogation Assignments to Your Advantage

Jeffrey P. Gale, P.A. — Wed, 10 Dec 2025 18:05:39 GMT

A core responsibility of lawyers representing clients with personal injury or property-damage claims is to maximize recovery. Conventional wisdom holds that recovery is limited to actual damages – the plaintiff cannot collect more than the loss suffered.

Florida law, however, provides a pathway to expand recovery when subrogation, reimbursement, or contribution rights exist.

In Despointes v. Florida Power Corporation, 2 So. 3d 360 (Fla. 2d DCA 2008), the insured had received $224,567.66 from her own insurer, CIGNA, for fire damage. Through an assignment of CIGNA’s subrogation rights, she was able to recover the same amount against a third party allegedly responsible for the loss caused by a defective surge protector. The trial court initially barred recovery, but the Second District reversed, noting that allowing the tortfeasor to avoid liability “because the victim was prudent enough to obtain insurance” would be unjust.

Assignments of subrogation or contribution rights are well-established under Florida law, as reflected in § 768.76(1), Fla. Stat., and cases like Robarts v. Diaco, 581 So. 2d 911 (Fla. 2d DCA 1991), where defendants assigned their rights of contribution to the plaintiff.

The key takeaway for practitioners: when a right of subrogation or reimbursement exists, consider obtaining an assignment. This strategy can unlock recovery beyond the client’s direct damages.

A word of caution: assignments often come at a cost. The assignor is relinquishing something of value, which may require negotiation, such as accepting a reduced settlement. In Despointes, while the opinion does not specify, the insured may have agreed to a lesser amount from CIGNA in exchange for the assignment.

By strategically leveraging subrogation or contribution assignments, plaintiffs can prevent tortfeasors from benefiting from the plaintiff’s foresight in obtaining insurance and potentially maximize overall recovery.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Workers’ Compensation Insurers Exempt from Civil Remedies Under Florida Statute 624.155

Jeffrey P. Gale, P.A. — Wed, 12 Nov 2025 22:05:01 GMT

Florida Statute 624.155 gives people the right to sue insurance companies if they mishandle claims and cause financial harm. However, workers’ compensation insurance carriers are exempt from these provisions. Section 440.11(4) provides as follows:

“Notwithstanding the provisions of s. 624.155, the liability of a carrier to an employee or to anyone entitled to bring suit in the name of the employee shall be as provided in this chapter, which shall be exclusive and in place of all other liability.”

This essentially means that injured workers are usually limited to the remedies spelled out in Chapter 440 of the Florida Statutes when dealing with workers’ compensation insurers. In most instances, those remedies are suitable to the circumstances.

There is, however, one important exception to the Chapter 440 remedies.

In Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla 2005), the Florida Supreme Court declared that employees may present independent civil tort actions against insurance carriers for conduct intentionally causing harm.

The Court distinguished between deliberate, egregious misconduct and mere procedural delays or routine bad faith in the handling of the employee’s compensation claim captured within the exclusiveness of liability provision of s. 440.11(4), Florida Statutes. The Court explained:

“With regard to the liability of a worker’s compensation insurance carrier, section 440.11(4) provided that ‘[n]otwithstanding the provisions of s[ection] 624.155, the liability of a carrier to an employee or to anyone entitled to bring suit in the name of the employee shall be as provided in this chapter, which shall be exclusive and in place of all other liability.’ Essentially, the system is designed for employers and insurance carriers to assume responsibility for limited amounts of medical and wage loss benefits resulting from workplace injuries without regard to fault in exchange for limitations on their liability, while the employee would correspondingly receive quick and efficient delivery of limited wage loss compensation and medical benefits. The workers’ compensation system was never designed nor was it intended to act as a shield for those engaged in intentional conduct inflicting injuries upon workers through the benefit process itself.”

The immunity provisions of section 440.11(4) are formidable; only truly egregious conduct can surmount them. The facts in Aguilera demonstrate just how high that bar is set.

The insurance carrier was again notified that urological care was needed now on an emergency basis because Aguilera’s urine had allegedly begun to smell like feces.
Four days later, Aguilera was advised that his workers’ compensation benefits were being terminated, notwithstanding the report of two doctors, including the opinion of the insurance carrier’s own doctor, that he should not return to work.
The insurance carrier intervened and actually blocked Aguilera’s receipt of medication which had been prescribed for him by the hospital emergency physician for his urinary condition.
Thereafter, the insurance carrier again denied Aguilera’s emergency request for the care of a urologist on the asserted basis that it was not medically necessary. At this time, the insurance carrier actually had within its possession medical documentation which both demonstrated the falsity of its position and clearly established the medical necessity for the care.
The insurance carrier was advised by Aguilera’s treating physician that his need for a urological consultation had become urgent and that his condition was deteriorating.
The insurance carrier’s own doctor issued Aguilera prescriptions for various urinary tests, and the appointments were in fact scheduled by the insurance carrier’s nurse.
However, one of the insurance carrier’s adjusters again intervened and simply unilaterally canceled some of this medical testing.
Testing that was ultimately performed, specifically a retrograde urethrogram, revealed that Aguilera had a fistula, or a hole in his bladder.
The insurance adjuster refused authorization for the emergency surgery and insisted on a second opinion.
The adjuster secretly appeared at the physician’s office for Aguilera’s appointment with an IME (independent medical examiner) urologist.
The adjuster urged Aguilera to lie to his counsel and to deceive his attorney by advising that she had not appeared at the doctor’s office contrary to the true fact.
Aguilera’s ultimate surgery, the need for which had been diagnosed as an emergency as early as June of 1999, was not finally authorized or approved until March 22, 2000. By this time, according to the allegations, Aguilera had been urinating feces and blood for over ten months.

The Aguilera decision reverberated throughout the insurance industry, prompting an immediate overhaul of claims handling practices to better address the needs of injured workers. Although some abuses persist, the most flagrant misconduct has largely been curtailed.

Prevailing under the Aguilera framework is exceptionally challenging; the facts must be so egregious as to shock the conscience, and the resulting damages must be both permanent and substantial. Consequently, only a limited number of such cases have been brought forward.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Jeffrey P. Gale, P.A. /// Tort Claims Against the Federal Government are not Capped by Florida’s Sovereign Immunity Limits

Jeffrey P. Gale, P.A. — Mon, 03 Nov 2025 17:05:04 GMT

For those of us in Florida familiar with the constraints of the state’s sovereign immunity law, Florida Statute 768.28, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, comes as a pleasant surprise. Under the state law, judgment damages against the state—or any of its agencies or subdivisions — are capped at $200,000 per individual or $300,000 per claim.

Interestingly, these caps do not apply to claims brought under the FTCA. The first paragraph of 28 U.S.C. § 2674 makes this explicit, stating:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual [emphasis added] under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

Simply put, although FTCA claims are brought against the federal government and its entities — just as claims under Florida’s Section 768.28 are brought against the state and its subdivisions — for purposes of damages, FTCA claims are treated as if they were brought against an individual rather than a government entity under 768.28.

Currently, under Florida law, individuals are not entitled to the misguided constraints of arbitrary damage caps.

Unfortunately, because Florida’s substantive law governs FTCA claims arising in the state, the FTCA does not protect all claims from the reach of every flawed or restrictive Florida law. For example, the Florida Wrongful Death Act (Fla. Stat. §§ 768.16–768.26) restricts recovery for certain survivors in medical malpractice cases, and those limitations still apply even to claims brought under the FTCA. Thus, the wrongful death of a patient resulting from medical malpractice at a VA hospital is governed by the same restrictive Florida law that applies to any other medical malpractice wrongful death case.

Florida’s sovereign immunity cap — essentially a modern echo of the old maxim that ‘the king can do no wrong’ –makes pursuing most tort claims against the state and its subdivisions virtually untenable. Very few lawyers are willing to invest the time and resources to challenge the sovereign for limited damages, knowing the state can fight with impunity, indifferent to the outcome, and effectively discourage even the thought of pursuing otherwise meritorious claims.

Thankfully, Congress chose not to shield the federal government with the same outdated liability protections that the Florida Legislature grants to state entities.*

*For administrative settlements, attorney fees are capped at 20%, while for cases that proceed to a federal court lawsuit and result in a settlement or judgment, the cap increases to 25%.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Jeffrey P. Gale, P.A. /// Comparative Fault and the Open & Obvious Doctrine

Jeffrey P. Gale, P.A. — Wed, 08 Oct 2025 20:08:25 GMT

Florida premises liability law governs the responsibility of those who possess or control land for injuries sustained by individuals on their property. It is a negligence-based system, meaning that liability is determined according to the degree of fault. This principle is known as comparative fault, codified in Florida Statute § 768.81, entitled Comparative Fault.

Under this system, the jury determines the percentage of fault attributable to the plaintiff, the defendant, and even nonparties who may have contributed to the injury. The jury also assigns a monetary value to the plaintiff’s damages. Together, these findings constitute the jury’s verdict.

A jury verdict is not the same as a final judgment. Only judges render final judgments, and in doing so, they consider several factors—two of the most important being the jury’s findings on fault and damages.

Consider a simple example:

Mr. Jones, visiting a friend’s condominium, trips over a large crack in a poorly lit underground parking lot and falls, suffering a severe laceration and a concussion. The lot, owned by a condominium association and managed by a maintenance company, had a long history of accidents caused by the same crack. After failing to reach a settlement, Mr. Jones sues both the association and the management company for negligence.

The jury returns a verdict of $500,000 in damages, apportioning fault 75% to the defendants (the association and management company) and 25% to Mr. Jones. Applying Florida’s comparative fault rule, the final judgment for Mr. Jones would be $375,000—reflecting 75% of the total damages awarded.

From Contributory to Comparative Fault

Before 1973, Florida followed the doctrine of contributory fault, under which a plaintiff who was even 1% at fault was barred from any recovery. In our example, Mr. Jones—though only 25% at fault—would have recovered nothing under that old rule.

Is there anything similar to contributory fault in modern Florida law? Sort of, but not quite. There remains a principle that can, in certain circumstances, prevent a plaintiff from recovering even when the defendant bears some responsibility: the Open and Obvious Doctrine.

The Open and Obvious Doctrine

The Open and Obvious Doctrine holds that certain conditions are so open and obvious that, as a matter of law, they cannot be considered dangerous, and therefore do not give rise to liability. Examples include:

A six-foot-diameter planter (Taylor v. Universal City Property Mgmt., 779 So. 2d 621 (Fla. 5th DCA 2001));
A landscaped area surrounded by large planks adjacent to a walkway (City of Melbourne v. Dunn, 841 So. 2d 504 (Fla. 5th DCA 2003));
A raised concrete surface at a gas station, visible in broad daylight (Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990)).

The critical language in these cases is that the condition must be “glaringly open and obvious.”

Fortunately for most plaintiffs, Florida courts are generally reluctant to decide—as a matter of law—that a condition meets this standard. In most premises liability cases, the issue of liability remains a question for the jury.

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Jeffrey P. Gale, P.A. // Overview of the Florida Wrongful Death Act

Jeffrey P. Gale, P.A. — Wed, 01 Oct 2025 18:58:59 GMT

Overview of the Florida Wrongful Death Act

When a person’s death is caused by the wrongful act, negligence, default, or breach of contract or warranty by another individual or company—including incidents occurring on navigable waters—Florida law determines who may be entitled to compensation. These legal rights and procedures are governed by statute, specifically the Florida Wrongful Death Act, found in Sections 768.16 through 768.26 of the Florida Statutes. The section addressing damages is Section 768.21.

Wrongful death claims are filed through the decedent’s estate by a court-appointed Personal Representative, who brings the claim on behalf of the individuals entitled to compensation. In many cases, the Personal Representative is a surviving family member who is also eligible to receive damages. The Personal Representative retains the attorney to pursue the claim.

Under the Florida Wrongful Death Act, individuals entitled to damages are referred to as “survivors.” In addition, the Estate itself may recover damages under certain conditions.

Determining who qualifies as a survivor and what types of damages may be recovered involves multiple factual variables and is not governed by a simple formula. Below is an outline of common scenarios and the types of damages that may be awarded under each:

SCENARIO 1: Decedent is Married – No Surviving Children

Surviving Spouse May Recover:

Loss of decedent’s companionship and protection
Mental pain and suffering (from the date of injury)
Loss of support and services (from the date of injury to the date of death, with interest)
Future loss of support and services (from the date of death, reduced to present value)
Medical and funeral expenses paid by the survivor

SCENARIO 2: Decedent is Married – With Surviving Children

Surviving Spouse May Recover (same as above):

Loss of decedent’s companionship and protection
Mental pain and suffering
Loss and future loss of support and services
Medical and funeral expenses (if paid by the spouse)

Surviving Children May Recover:

Loss of support and services (past and future, as above)
Minor children (under age 25, per §768.18(2))—or all children if there is no surviving spouse—may also recover:
- Loss of parental companionship, instruction, and guidance
- Mental pain and suffering (from the date of injury)

SCENARIO 3: Parent Dies – Surviving Children, No Surviving Spouse

All Surviving Children May Recover:

Loss of support and services (past and future)
Loss of parental companionship, instruction, and guidance
Mental pain and suffering (from the date of injury)

SCENARIO 4: Child Dies – Surviving Parents, No Spouse or Children

For a Deceased Minor Child:

Mental pain and suffering (from the date of injury)
Medical and funeral expenses (if paid by the parents)

For a Deceased Adult Child (Only if No Other Survivors Exist):

Mental pain and suffering
Loss of support and services (past and future)
Medical and funeral expenses (if paid by the parents)

Damages Recoverable by the Personal Representative (on Behalf of the Estate)

Loss of earnings from the date of injury to the date of death (minus support provided to survivors, excluding contributions in kind), with interest
Loss of prospective net accumulations to the estate (if reasonably expected but for the death), reduced to present value
- Available if:
  - There is a surviving spouse or child, or
  - The decedent was not a minor (under age 25), no support damages are recoverable, and a parent survives
Medical or funeral expenses charged to the estate or paid on behalf of the decedent (unless already claimed by a survivor)

Important Exceptions in Medical Malpractice Cases

Adult children cannot recover for loss of parental companionship in medical malpractice claims
Parents of a deceased adult child cannot recover for mental pain and suffering in such cases

If you, like many, question the fairness of these exceptions, consider contacting your state legislators to advocate for change.

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Jeffrey P. Gale, P.A. // Reclaiming the Truth About the McDonald’s Coffee Case – And Why It Matters

Jeffrey P. Gale, P.A. — Tue, 30 Sep 2025 19:20:16 GMT

For decades, Corporate America has waged a calculated campaign to vilify trial lawyers and delegitimize civil lawsuits. The now-infamous McDonald’s coffee spill case has been cynically exploited as the poster child for “frivolous lawsuits.” The case is cited endlessly in media soundbites, political speeches, and boardroom talking points to convince the public that the justice system is out of control.

And sadly, the public has swallowed this propaganda—hook, line, and sinker.

Why would Corporate America want to discredit civil lawsuits?
The answer is simple: profits over people. By undermining the right of individuals to seek justice through the courts, corporations reduce their accountability for negligent and harmful conduct. Civil lawsuits are one of the few tools that force powerful interests to take responsibility. Limit those lawsuits, and you limit consequences. It’s that straightforward.

How does the propaganda work?
By fueling a false narrative of a “lawsuit crisis,” the public is stirred into demanding reform. Politicians—particularly those who proudly wear the “conservative” label—are more than happy to oblige. But not without a price. The loudest voices for lawsuit restrictions also tend to receive the most generous campaign contributions from corporate donors.

In response, these lawmakers push so-called “tort reform” laws that make it increasingly difficult for everyday Americans to take on big business in court. These laws don’t just stack the deck—they lock the courtroom doors.

It’s been happening for years, and it’s not just concerning—it’s dangerous. This is big business run amok.

Let’s go back to the McDonald’s coffee case.

Here are the facts:

In 1994, a New Mexico jury awarded $2.9 million to Stella Liebeck, a 79-year-old woman who suffered third-degree burns after spilling McDonald’s coffee on her lap. She was seated in a parked car, attempting to add cream and sugar when the coffee spilled. She sustained burns so severe that she was hospitalized for eight days, required skin grafts, and was left with permanent scarring and pain. Her medical bills exceeded $11,000.

Before filing suit, Ms. Liebeck simply asked McDonald’s to cover her medical expenses. The company offered $800.

Here’s what the public rarely hears:

McDonald’s served its coffee at 195–205°F. Liquids at that temperature can cause third-degree burns in 3 seconds or less.
Experts testified that coffee at 160°F (a much safer temperature) would take 20 seconds to cause the same damage—time enough to react and avoid serious injury.
McDonald’s internal documents showed it had received over 700 burn complaints from hot coffee in the previous 10 years. The company had already paid out over $500,000 to settle similar claims.
The jury awarded $200,000 in compensatory damages, reduced to $160,000 because Ms. Liebeck was found 20% at fault. They also awarded $2.7 million in punitive damages—roughly two days’ worth of McDonald’s coffee revenue—based on findings that McDonald’s acted with willful disregard for consumer safety.
The judge later reduced the punitive award to $480,000. Both sides appealed and the case was ultimately settled for an undisclosed amount.
The day after the verdict, the temperature of the coffee at that McDonald’s location was tested—reduced to 158°F.

Ms. Liebeck was not a serial litigant. She was a retired clerk, injured by a dangerously hot product. Her case was tried before a fair and impartial judge, with competent counsel on both sides, and a jury of everyday Americans. This wasn’t a rogue decision—it was the justice system working as designed.

The Bigger Picture

The Founding Fathers enshrined the civil jury system in the Constitution for a reason: it is the best safeguard a free society has against unchecked power. It’s not perfect, but it works remarkably well—if we let it. When mistakes occur, the system has mechanisms to correct them through judicial oversight and appellate review.

The smear campaign against the civil justice system isn’t about protecting the public from “greedy lawyers” or “runaway juries.” It’s about protecting corporate profits by weakening your right to hold wrongdoers accountable.

Believe in the civil jury system. It’s one of the last remaining ways for everyday people to stand on equal footing with the most powerful interests in our society.

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Jeffrey P. Gale, P.A. // Valuation Date for Workers’ Compensation Subrogation Lien

Jeffrey P. Gale, P.A. — Thu, 25 Sep 2025 18:51:26 GMT

Personal injury and workers’ compensation cases differ significantly in the remedies they offer and the parties they involve. It is not uncommon for an individual injured in the course of employment to also have a viable personal injury claim. Workers’ compensation cases are brought against the employer and its insurance carrier, whereas personal injury actions target the negligent third party responsible for the incident, including any entities that may be vicariously liable for their conduct.

One of the most significant distinctions between workers’ compensation and personal injury cases lies in the role of fault: workers’ compensation operates as a no-fault system, while personal injury claims require the injured party to prove that another’s negligence caused the harm. Because workers’ compensation operates as a no-fault system, benefits are typically provided from the outset of the claim. In contrast, personal injury cases often require lengthy litigation to establish fault, meaning compensation may not be received for months or even years.

Pursuant to Florida Statute § 440.39, when an employee or their dependents accept workers’ compensation benefits or initiate proceedings to obtain them, the employer—or its insurer—is subrogated to the rights of the employee or dependents against any third-party tortfeasor. This subrogation applies to the extent of compensation benefits paid or payable, as outlined in subsection (2).

This right of subrogation entitles the employer and its workers’ compensation insurer to reimbursement from any recovery the injured employee obtains—whether by judgment or settlement—from a third-party tortfeasor.

The employer and its workers’ compensation carrier rarely recover the full value of their lien. Florida Statute § 440.39(3)(a) sets forth the formula used to calculate the extent of their recovery. It calls for a pro rata determination. The Florida Supreme Court’s decision in Manfredo v. Employer’s Casualty Insurance Co. provides a clear and accessible explanation of how the statutory formula operates in practice.

In Liberty Mutual Insurance Company v. Robert A. Lee (Feb. 7, 2025), the issue concerned the proper “valuation date” for calculating the subrogation lien. Lee argued that Liberty Mutual was entitled to reimbursement of only 11.61% of the benefits it had paid through the date of his settlement with the elevator operator. Liberty Mutual, by contrast, maintained that it should be reimbursed for 11.61% of the benefits it paid through the date of the equitable distribution.

The valuation date was important in the Lee case because Liberty Mutual paid over $300,000 in benefits to Lee and on Lee’s behalf after the date of the settlement agreement.

Liberty Mutual argued that its position is supported by the plain language of section 440.39(3) providing that the lien applies to “benefits paid or to be paid.” Florida’s Sixth District Court of Appeal agreed.

The Court’s decision made a $34,830.00+ difference.

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Jeffrey P. Gale, P.A. /// The Shifting Legal Landscape of Employment Discrimination Cases

Jeffrey P. Gale, P.A. — Thu, 28 Aug 2025 20:36:36 GMT

Although our law firm does not handle employment discrimination cases, we frequently refer such matters to excellent attorneys. Recently, however, I came across a particularly insightful and well-written Florida Bar Journal (volume 99, No. 4 July/August 2025) article by Attorney James Poindexter, which inspired me to write this blog.

Employment discrimination cases are primarily grounded in Title VII of the Civil Rights Act of 1964. Like all statutory law, Title VII has been shaped and refined through judicial interpretation, with courts across the country—including the United States Supreme Court—defining its scope and application.

For more than fifty years, one of the most influential cases in employment discrimination law has been McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), decided by the United States Supreme Court. The decision established a framework for plaintiffs to prove discrimination in cases where direct evidence of discriminatory intent is absent.

Unfortunately, although once regarded as a lifeline for plaintiffs, the case has gradually evolved into more of an obstacle to proving even meritorious claims, ossifying into a rigid procedural doctrine. This shift stems from a misunderstanding of the framework’s purpose. Rather than treating it as one of several possible methods of proof, many courts and practitioners have mistakenly applied it as the exclusive route. Encouragingly, recent decisions have begun to clarify that the McDonnell Douglas framework is not the only path available.

These decisions reaffirm that the ultimate issue is ‘whether the defendant intentionally discriminated against the plaintiff,’ United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983), rather than whether the three-part framework of McDonnell Douglas has been mechanically satisfied. In effect, courts have recognized that, for some, the McDonnell Douglas test has come to overshadow—and at times supplant—the Civil Rights Act itself as the governing law.

A significant shift in how courts should view the McDonnell Douglas framework came in Tynes v. Florida Department of Juvenile Justice, 88 F.4th 939 (11th Cir. 2023). In Tynes, the jury returned a verdict for the plaintiff, but the employer sought to overturn it by arguing that the plaintiff had failed to establish a prima facie case of discrimination under McDonnell Douglas.

The Tynes court clarified that while McDonnell Douglas remains a valid method of proving discrimination, it is not the exclusive one. Most importantly, the court emphasized that the central question is whether unlawful discrimination occurred—not whether the plaintiff successfully cleared the procedural hurdles outlined in McDonnell Douglas.

Tynes’ message is that courts should analyze the evidence as a mosaic, considering all the pieces together to determine if a jury could reasonably conclude that unlawful discrimination occurred. This holistic approach aligns with the text of Title VII of the Civil Rights Act.

Getting the Supreme Court to adopt the “mosaic” approach may be challenging. In Hittle v. City of Stockton, California, 145 S. Ct. 759 (2025), the Court denied a petition for certiorari, thereby declining to review a Ninth Circuit opinion that required the plaintiff to satisfy the traditional McDonnell Douglas burden-shifting framework. Justice Thomas, joined by Justice Gorsuch, dissented from the denial, arguing that the Court should have used the case to reconsider the McDonnell Douglas framework.

Employment discrimination cases can be exceedingly difficult for plaintiffs, as federal courts are often inclined to grant summary judgment motions, dismissing the claims before they can be heard by a jury. However, the Tynes decision may signal a softening of this approach. By emphasizing the “mosaic” of evidence, the court encourages judges to look beyond the rigid, step-by-step framework of McDonnell Douglas and instead consider the totality of the circumstances, which may make it more difficult for defendants to obtain summary judgment.

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Jeffrey P. Gale, P.A. // Fundamentals Matter — Proximate Cause

Jeffrey P. Gale, P.A. — Mon, 28 Jul 2025 17:38:59 GMT

In every negligence action for personal injury or wrongful death, the plaintiff must establish three core elements: (1) a duty owed by the defendant; (2) a breach of that duty; and (3) that the breach proximately caused the claimed damages.

While duty and breach often dominate attention, proximate cause is the element that connects wrongdoing to legal responsibility. Without proximate cause, even clear negligence is not actionable.

Florida courts apply the “more likely than not” standard to determine causation. The plaintiff must prove that the defendant’s negligence probably caused the injury—not merely that it possibly did. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977). As Prosser succinctly put it:

“A mere possibility of causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”

The Gooding Benchmark

The North Star of Florida’s proximate cause law remains Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984).

Emily Gooding, representing her late husband’s estate, alleged emergency room negligence in failing to timely diagnose and treat his abdominal aneurysm. Although her expert established a breach of medical standards, he failed to testify that immediate treatment would have more likely than not saved Mr. Gooding’s life. The Florida Supreme Court affirmed a reversal of the plaintiff’s jury verdict, holding that causation evidence must satisfy the “more likely than not” standard, not rest on a mere possibility of survival.

Directed Verdicts and Proximate Cause

The Gooding principle shapes when courts must take causation questions away from the jury. A directed verdict is appropriate “where no proper view of the evidence could sustain a verdict in favor of the non-moving party.” See Friedrich v. Fetterman & Assocs., 137 So.3d 362 (Fla. 2013).

A recent example is R.J. Reynolds Tobacco Co. v. Nelson, 47 Fla. L. Weekly D2436 (Fla. 1st DCA 2022). There, Reynolds was sued for design defect negligence causing COPD. The appellate court reversed the plaintiff’s verdict, finding no competent evidence that Reynolds’ conduct proximately caused the plaintiff’s disease. Once again, the absence of substantial causation evidence mandated a directed verdict.

But Sometimes, Proximate Cause Is a Jury Question

Not all proximate cause cases end in favor of the defendant. In Aragon v. Issa, M.D., 103 So.3d 887 (Fla. 4th DCA 2012), the appellate court reversed a trial judge’s post-verdict ruling for the defense. Because the plaintiff presented conflicting expert testimony supporting causation, the case should have been left to the jury.

Similarly, in Claire’s Boutiques v. Locastro, 85 So.3d 192 (Fla. 4th DCA 2012), the court upheld the denial of a directed verdict on causation. Although the defendant claimed there was insufficient proof that their negligence caused an infection, the court emphasized that if “sufficient evidence” supports the “more likely than not” standard, the issue must go to the trier of fact.

Primary Cause ≠ Proximate Cause

One of the most important clarifications in Florida law is that proximate cause does not require an act to be the “primary” cause of an injury. In Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So.3d 977 (Fla. 2018), the Florida Supreme Court reversed a directed verdict in a medical malpractice case.

The defendant doctor argued he merely “placed” the patient in a position to be harmed by the independent actions of others. The Court disagreed, reaffirming that:

““the law does not require an act to be the exclusive or even the primary cause of an injury in order for that act to be considered the proximate cause of the injury: rather, it need only be a substantial cause of the injury.”

This principle was famously applied in Sardell v. Malanio, 202 So.2d 746 (Fla. 1967), where a boy who threw a football was held potentially liable for injuries caused when another boy collided with a passerby while catching the ball. Proximate cause, the Court explained, hinges on whether an act substantially contributed to the injury, not whether it was direct or dominant.

Proximate Cause in Workers’ Compensation

Though often associated with tort law, proximate cause is equally fundamental in Florida workers’ compensation cases. Claimants must prove a causal link between an industrial accident and their injury with competent substantial evidence. See § 440.02(1), Fla. Stat.; Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991).

In Escambia County Board of County Commissioners v. Reeder, 648 So.2d 222 (Fla. 1994), the claimant’s compensation was not reduced despite his failure to wear a safety belt on a bulldozer. The court held that the employer had to prove a causal connection between the refusal to wear safety equipment and the injury. Because that proof was lacking, the 25% statutory penalty pursuant to § 440.09(5) could not be applied.

Conclusion: Fundamentals Always Matter

Like a receiver taking his eyes off the ball or a tennis player forgetting footwork, lawyers sometimes lose sight of foundational principles. Proximate cause is a legal fundamental. It bridges the gap between wrongful conduct and compensable harm. Whether in personal injury, medical malpractice, or workers’ compensation, failing to establish proximate cause is fatal to a claim. Conversely, remembering and proving it can be the difference between victory and defeat.

In litigation, fundamentals always matter.

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Jeffrey P. Gale, P.A. // Election of Remedies in Florida: The Point of No Return

Jeffrey P. Gale, P.A. — Tue, 22 Jul 2025 16:27:16 GMT

Some legal wrongs give the aggrieved party more than one avenue of redress. A common example arises when an injured person must choose between pursuing a remedy under common law or seeking benefits under Florida’s Workers’ Compensation Law, Chapter 440, Florida Statutes. However, once a path is chosen and pursued past a certain threshold, the alternative remedy may no longer be available. This is the doctrine of Election of Remedies.

It is not uncommon for the injured party to first receive workers’ compensation benefits before deciding whether to pursue civil damages. Florida appellate courts have thoroughly analyzed how far one can go down the workers’ compensation path before the election becomes binding. Far less guidance exists, however, on how far one may go in a civil action before being barred from later seeking workers’ compensation benefits.

Yet, the governing legal principle applies to both scenarios:

An election becomes binding “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.”
— Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So. 2d 726 (Fla. 1963)

In practice, determining when an election has matured is often clearer in civil litigation. Civil damages are not awarded until a court determines whether common law is the appropriate remedy. Until that point, the election generally remains open.

The Hume Decision

The case of Hume v. Thomason, 440 So. 2d 441 (Fla. 1st DCA 1983), illustrates the consequences of making a binding election. Hume, a carpenter injured while working on the Thomasons’ home, was entitled to elect between workers’ compensation and a civil lawsuit under § 440.11(1), Florida Statutes, because the employer failed to secure workers’ compensation coverage. Hume chose to sue in civil court, but the court entered final summary judgment against him. He then sought workers’ compensation benefits. The Thomasons objected, arguing that Hume had elected his remedy.

The judge of compensation claims agreed, and the First DCA affirmed:

“The summary judgment rendered in the circuit court was obviously efficacious from the Thomasons’ point of view, as it worked to their advantage and to Hume’s disadvantage. Thus, Hume’s election matured when judgment was entered finally adjudicating the rights of the parties. He was precluded thereafter from pursuing his workers’ compensation claim.”

The court also observed the unfairness of requiring the employer to defend the same injury claim in two different forums:

“[T]he employer should not be twice placed in the position of defending himself where he had had to defend either a damage suit on the one hand or a compensation claim on the other to its final conclusion.”

In short, Hume elected his remedy—and lost. End of story.

The Gilbert Decision

The principle was similarly tested in Gilbert v. Florida Birth-Related Neurological Injury Compensation Association, 724 So. 2d 688 (Fla. 2d DCA 1999). There, the plaintiffs settled a civil medical negligence claim and later filed a petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). An administrative law judge dismissed the petition, citing the doctrine of election of remedies. The Second DCA reversed:

“The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition. … The resulting settlement of [the civil] action, although it may imply [the baby was not covered under NICA], fell short of such a determination.”

In other words, an election is not binding unless the underlying factual issue has been definitively resolved.

Application in Workers’ Compensation

In workers’ compensation matters, benefits are often received passively, without the injured worker affirmatively electing them. Such passive receipt—even if substantial—typically does not constitute a binding election.

More commonly, the issue arises when a claimant receives some benefits and then files a civil suit. Despite the general guidance from Duggan, the outer limit of how far one can go in the compensation system before forfeiting a civil remedy remains somewhat unclear.

Still, as shown in Hume and Gilbert, most decisions support the idea that an election is not binding until a factual determination on the core issue has been made. In civil cases, that core issue may be whether the claim is governed by the exclusive remedy provision of Chapter 440. In workers’ compensation cases, it may be whether the injury falls within the Act’s coverage.

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Jeffrey P. Gale, P.A. // Mental and Nervous Injuries Under Florida Law: The Impact Rule and Workers’ Compensation

Jeffrey P. Gale, P.A. — Thu, 12 Jun 2025 20:06:05 GMT

Florida’s liability and workers’ compensation systems take a cautious approach when it comes to awarding benefits for mental and emotional injuries. This caution stems from a fundamental public policy concern: without clear limits, allowing recovery for purely emotional harm could lead to a flood of speculative or fabricated claims. As the Florida Supreme Court explained in R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995), this concern is central to the application of what’s known as the “Impact Rule.”

What Is the Impact Rule?

Under the Impact Rule, a plaintiff cannot recover damages for emotional distress caused by another’s negligence unless the emotional distress arises from physical injuries sustained during a physical impact. This requirement is firmly rooted in Florida case law. See Southern Baptist Hosp. of Fla. v. Welker, 908 So. 2d 317 (Fla. 2005).

The rule applies to both common law personal injury claims and statutory workers’ compensation claims. It sets a high bar for plaintiffs and claimants seeking compensation for psychological harm, requiring a demonstrable link to physical trauma.

Common Law Exceptions to the Impact Rule

Over time, the Supreme Court of Florida has recognized a narrow set of exceptions to the Impact Rule. These exceptions apply only in specific circumstances where emotional distress is particularly foreseeable, severe, and supported by strong public policy justifications. Examples include:

Intentional Infliction of Emotional Distress: Eastern Airlines, Inc. v. King, 557 So. 2d 574 (Fla. 1990)
Witnessing a Close Relative’s Trauma: Champion v. Gray, 478 So. 2d 17 (Fla. 1985)
Wrongful Birth Claims: Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992)
Stillbirth of a Child: Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997)
Breach of Confidentiality: Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002)
Attorney Malpractice Resulting in Psychological Harm: Rowell v. Holt, 850 So. 2d 474 (Fla. 2003)

These exceptions are rare and narrowly drawn. As the Supreme Court of Florida has emphasized, “[e]xceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Rowell, 850 So. 2d at 478.

By contrast, courts have declined to recognize exceptions in other emotionally charged situations. For example:

Negligent Misdiagnosis of HIV: R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995)
Disclosure of a Student’s Sexual Orientation: Woodard v. Jupiter Christian School, Inc., 913 So. 2d 1188 (Fla. 2005)

Application in Workers’ Compensation Law

Workers’ compensation in Florida is governed by statute—primarily Chapter 440 of the Florida Statutes. Mental and nervous injuries are addressed specifically in section 440.093, which mirrors the Impact Rule. Under this provision, workers cannot receive compensation for psychiatric injuries resulting solely from stress, fright, or excitement, absent a physical injury.

However, there are limited statutory exceptions for first responders—defined in section 112.1815(1) as firefighters, paramedics, emergency medical technicians, and law enforcement officers.

Key Exceptions:

Section 112.1815(2)(a)3: First responders may receive medical benefits for mental or nervous injuries arising from the job, even without physical trauma. Indemnity benefits, however, are not allowed under this provision.
Section 112.1815(5): In cases involving posttraumatic stress disorder (PTSD) resulting from specifically enumerated traumatic events, first responders may receive both medical and indemnity benefits. This is a significant exception that reflects the unique risks faced by these professionals.

Final Thoughts: Fairness vs. Fraud Prevention

Critics argue that the Impact Rule unfairly bars legitimate claims by those who suffer serious psychological harm in the absence of physical trauma. It’s a valid concern. But as tort scholars such as Prosser and Keeton have explained, requiring a physical impact serves a vital evidentiary function: “It gives assurance that the claimed injury is genuine.” Prosser and Keeton on the Law of Torts § 54, at 363 (5th ed. 1984).

Ultimately, Florida courts and lawmakers continue to strike a delicate balance—acknowledging the real harm caused by emotional trauma while seeking to avoid opening the door to unverifiable and speculative claims.

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Jeffrey P. Gale, P.A. // Understanding Florida’s Rear-End Collision Presumption

Jeffrey P. Gale, P.A. — Wed, 11 Jun 2025 14:56:33 GMT

In 1958, Florida joined a small number of states in adopting a legal presumption of negligence against trailing drivers involved in rear-end motor vehicle collisions. This shift was established in McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958), and later endorsed by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959).

The Legal Rationale

The presumption is rooted in practical evidentiary concerns. Typically, plaintiffs bear the burden of proving all four elements of negligence: duty, breach, causation, and damages. But in rear-end crashes, plaintiffs often know they were hit from behind but have no access to the circumstances leading up to the impact—leaving gaps in proof for breach and causation.

To address this, Florida courts created a rebuttable presumption: if a rear-end collision occurs, the trailing driver is presumed negligent. This shifts the burden of production to the defendant, who must offer a “substantial and reasonable explanation” to overcome the presumption. If successful, the case proceeds to the jury without the benefit of the presumption. See Gulle v. Boggs, 174 So.2d 26, 28–29 (Fla. 1965); Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977).

Originally developed during Florida’s contributory negligence era—where any negligence on the plaintiff’s part barred recovery—the rule had significant weight. Under today’s comparative fault framework, however, negligence is apportioned, and partial fault does not automatically defeat a claim. See Shayne v. Saunders, 176 So. 495 (Fla. 1937); Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), quashed on other grounds.

Modern Interpretation: Birge v. Charron

In Birge v. Charron, 107 So.3d 350 (Fla. 2012), the Florida Supreme Court clarified that the rear-end presumption is “an evidentiary tool” designed to bridge gaps in liability and causation when evidence is one-sided. Importantly, it is not absolute.

Where there is evidence that the front driver may have been negligent, the presumption is rebutted. At that point, the case must go to a jury for resolution—without the presumption. It may remain only as a permissible inference the jury is free to accept or reject. This standard was reaffirmed in Crime v. Looney, 328 So.3d 1157 (Fla. 1st DCA 2021).

Real-World Application: A Case Study

We recently handled a case involving a catastrophic, multi-vehicle crash on Florida’s Turnpike. Our client was sideswiped by an SUV that had been rear-ended, causing their vehicle to be propelled into a tree at high speed. The chain-reaction began with a rear-end collision—clearly placing the trailing vehicle at the center of the causation analysis.

We argued that the presumption of negligence should apply to the vehicle that initiated the sequence. However, the court noted that the rear-ended SUV had come to a sudden stop on a section of highway where such stops are not expected, unlike urban roads with frequent stops for businesses or intersections.

Because there was a factual dispute over whether the front vehicle’s conduct contributed to the crash, the court ruled that the presumption did not apply. The case ultimately settled for a confidential amount.

Key Takeaways

Presumption of Negligence: In Florida, a rear-end collision creates a presumption that the trailing driver was negligent.
Rebuttable Standard: The presumption can be rebutted by presenting a reasonable explanation (e.g., sudden, unexpected stop by the lead vehicle).
Comparative Fault: Even if the lead driver was partially at fault, liability can be shared rather than barred entirely.
Not Always Applicable: The presumption is less likely to apply on highways or areas where sudden stops are unusual.

This rule continues to play a vital role in rear-end crash litigation, especially where direct evidence is hard to come by. But as our case illustrates, it is not a one-size-fits-all solution.

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Jeffrey P. Gale, P.A. // Florida’s “Free Kill” Law: A Legal Loophole That Still Denies Grieving Families Justice

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 16:29:57 GMT

Since 1990, Florida has enforced a statute commonly referred to as the “Free Kill” law. Codified at Section 768.21(8) of the Florida Wrongful Death Act, this provision creates a glaring exception in an otherwise remedial framework intended to support grieving families.

The legislative intent behind the Wrongful Death Act, as stated in Section 768.17, is clear:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”

From car crashes and construction accidents to defective products and medical malpractice, wrongful death claims arise in countless tragic ways. When negligence causes a death, Florida law generally allows surviving family members to recover damages — including for mental pain and suffering, often the most devastating aspect of such a loss.

But Section 768.21(8) carves out a critical exception: If the death is caused by medical negligence, parents of adult children (defined under Section 768.18(2) as those age 25 or older) and adult children of deceased parents are barred from recovering non-economic damages — no compensation for grief, anguish, or loss of companionship.

Yes, you read that correctly. If a doctor’s negligence kills your elderly parent or your adult child, Florida law says you’re entitled to nothing for your emotional loss. That’s why Section 768.21(8) has earned the nickname: “The Free Kill Law.”

The Insurance Myth

Proponents of the law claim it helps keep medical malpractice insurance rates down. But studies have not substantiated those claims. In fact, in McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases, finding they violated equal protection. The Court specifically rejected the idea that such caps meaningfully reduce insurance premiums or promote physician retention.

A Repeal Effort Thwarted — Again

Over the years, bipartisan efforts to repeal the “Free Kill” law have steadily gained traction. During the 2024 legislative session, lawmakers introduced multiple bills to eliminate the unjust provision. Some were clean, straightforward repeal proposals. Unfortunately, opposition — fueled by powerful healthcare and insurance industry lobbyists — once again derailed reform.

One high-profile example: SB 248, sponsored by Sen. Corey Yarborough (R), sought to repeal Section 768.21(8), but only if unconstitutional damage caps (struck down in McCall) were reinstated. That bill failed, but not before it distracted from genuine repeal efforts — yet another missed opportunity.

Then, in the 2025 legislative session, both the House and Senate passed a full repeal of the Free Kill law by veto-proof majorities. But Governor Ron DeSantis vetoed the bill. Despite having the votes to override the veto, Republican legislators declined to act.

The result? The law remains intact. Some believe this was a calculated move — allowing lawmakers to appear supportive of repeal while ensuring the law stayed in place, placating key political donors. With Governor DeSantis term-limited, his veto came at little political cost.

Real Families, Real Grief

At our firm, not a week goes by without a call from someone devastated by this law — most often adult children grieving the preventable loss of a parent due to medical error. For many, we are not the first law office to deliver the heartbreaking news: Florida law offers them no remedy.

It’s a painful conversation every time. We encourage callers to reach out to their elected officials and demand change. Most say they will. Whether lawmakers will finally listen remains to be seen.

Bottom Line: Until Florida repeals the “Free Kill” law, the state’s legal system will continue to deny justice to countless families — especially those who lose elderly parents to preventable medical negligence. The fight isn’t over, but the time for action is long overdue.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. /// Reimbursement Rights of Health and Disability Insurers in Florida Personal Injury Cases

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 16:09:01 GMT

It is common for health and disability (lost wages) insurance carriers to pay benefits to their insureds who are injured due to someone else’s negligence. Many of these policies include reimbursement provisions allowing the insurer to recover payments from any personal injury settlement or judgment obtained by the insured.

How Much Must Be Repaid?

The reimbursement amount depends on two key factors:

Policy Language
The Source of the Settlement or Judgment

Most policies state that the insurer is entitled to full reimbursement from the insured’s recovery—often before the insured or their attorney receives anything. However, when the recovery is from a tortfeasor (the at-fault party), Florida law may limit the insurer’s rights.

Florida Statute § 768.76(4): The Governing Rule

When recovery is made from a tortfeasor, Florida Statute § 768.76(4) controls, regardless of what the insurance policy says. This was confirmed in Ingenix v. Ham, 35 So. 3d 949 (Fla. 2d DCA 2010). In that case, United Healthcare sought full reimbursement after paying most of the decedent’s medical bills. However, the court limited reimbursement based on the statutory formula in § 768.76(4), stating:

“A provider of collateral sources…shall have a right of reimbursement…if such claimant has recovered…from a tortfeasor.”

A Different Outcome: When the Statute Doesn’t Apply

In contrast, Travelers v. Boyles, 679 So. 2d 1188 (Fla. 4th DCA 1996), involved a settlement with an uninsured motorist (UM) carrier—not a tortfeasor. The court held that § 768.76(4) did not apply and allowed the health insurer to pursue full reimbursement under its policy terms. The statute wasn’t triggered because a UM carrier is not considered a tortfeasor under the law.

Importantly, the Ingenix court emphasized that the Travelers decision does not mean policy language trumps the statute when § 768.76(4) does apply.

When Both Standards Apply

In certain cases—such as auto accidents involving inadequate bodily injury (BI) coverage and a payment from an underinsured motorist (UIM) policy—both Ingenix and Travelers may apply. Reimbursement rights may then be split between the statutory formula (for the tortfeasor’s share) and policy language (for the UIM portion).

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. /// Uber Drivers and Passengers, Beware!

Jeffrey P. Gale, P.A. — Wed, 30 Apr 2025 17:22:19 GMT

Much has been written about the type of insurance coverage available to Uber passengers and other third parties for accidents caused by Uber drivers. Less has been written about the coverage available to Uber drivers and their passengers for injuries caused by third parties such as other drivers.

Currently, we are handling a case for an Uber driver who was hurt through the negligence of another driver. Our client’s passenger was also hurt.

Florida motor vehicle insurance policies offer a variety of coverages. For individuals, only Property Damage Liability and PIP are mandatory. The other available coverages are Uninsured Motorist/Underinsured Motorist (UM/UIM), Comprehensive, Collision, and Medical Payments. A premium is charged for each type of coverage.

Uber maintains insurance coverage in Florida with Progressive. We received a copy of the policy applicable to our accident. The available coverages are:

Liability to Others – Bodily Injury and Property Damage Liability – $1,000,000 combined single limit
Comprehensive – $2,500
Collision – $2,500
Medical Payments – $5,000 each person

Uber rejected UM/UIM. PIP was not an option.

Uninsured Motorist insurance is coverage for when the at-fault party does not maintain Bodily Injury Liability insurance coverage. Underinsured Motorist applies when the Bodily Injury Liability coverage limits are insufficient to fully compensate for all damages.

Florida Statute 627.748(7) outlines the insurance requirements for transportation companies like Uber and Lyft — referred to in the statute as “Transportation Network Companies” and “TNC” — and their drivers. The statute provides that “Uninsured and underinsured vehicle coverage as required by s. 627.727” must be maintained while a participating TNC driver is logged on to the digital network but is not engaged in a prearranged ride or while a TNC driver is engaged in a prearranged ride. Subsection (7)(d) further provides:

If the TNC driver’s insurance under paragraph (b) or paragraph (c) has lapsed or does not provide the required coverage, the insurance maintained by the TNC must provide the coverage required under this subsection, beginning with the first dollar of a claim, and have the duty to defend such claim.

The statutory language gives the appearance that UM/UIM would always be available, when applicable, through the TNC or its driver. Appearances can be deceiving! In Progressive Express Insurance Company v. Raiser-DC, LLC, 724 F.Supp. 1273 (USDC, S.D. Florida 2024), summary judgment was entered in favor of Progressive’s position that UM and UIM coverage did not exist under the TNC’s insurance policy. This left its driver [Karina Monasterio], who was seriously injured by the negligence of another driver, who was underinsured at the time of the accident, without UIM insurance. Here are key parts of the ruling:

In pertinent part, the Florida UM/UIM statute requires that:

(1) No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein … However, the coverage required under this section is not applicable when, or to the extent mat, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.”

Fla Stat. 627.727(1) (emphasis added). Florida courts have already interpreted that Subsection (1) of the Florida UM/UIM Statute “limits the applicability of the uninsured motorist requirements to liability policies covering specifically insured or identified motor vehicles.” Hooper v. Zurich Ins. Co., 789 So. 2d 368, 369 (Fla. Dist. Ct. App. 2001).

The Parties state, and Ms. Monasterio readily concedes, that the Period Policy “is not issued for specifically insured or identified vehicles.” The Period Policy does not identify any specific vehicle nor is Ms. Monasterio’s vehicle specifically identified. As Subsection (1) is therefore not applicable to the Period Policy, Ms. Monasterio cannot point to any text in the Florida UM/UIM Statute that would require coverage for her vehicle during the May 6, 2022, incident. Her argument that Subsection (1) of the Florida UM/UIM Statute is the only subsection to limit its applicability to specifically insured or identified motor vehicles, does undermine the limitation nor in and of itself create language that mandates UM/UIM insurance for all other types of insurance policies.

However, Ms. Monasterio urges this Court to recognize the result that follows. Subsection (1) of the Florida UM/UIM Statute only requires UM/UIM coverage for “specifically insured or identified vehicles.” The Period Policy was written to cover “any auto while being used by a TNC driver, but only while engaged in providing a prearranged service utilizing the ride-share application …” It is likely that most TNC policies will be written similarly and it would be virtually impossible for any TNC to possibly identify each vehicle in the written policy. Therefore, it is further likely that no TNC driver or vehicle would ever be specifically insured or identified by the TNC’s insurance policy, and as a result, never meet the condition precedent for Subsection (1) of the Florida UM/UIM Statute. By referencing, the Florida UM/UIM Statute, the TNC Act makes the requirement for UM/UIM coverage meaningless for TNC insurance policies.

The court acknowledged “that this interpretation might be counter to the Florida Legislature’s intent when they drafted the TNC Act.” However, it relied on basic statutory interpretaton to reach the final result:

Notwithstanding the legislative intent however, my inquiry must focus on the language of the statute in its final form, and the statute references the Florida UM/UIM Statute in its entirety. The TNC Act only mandates UM/UIM insurance as required by the Florida UM/UIM Statute and Subsection (1) of the UM/UIM only requires that policies that specifically insure vehicles provide such coverage. I believe this is the result that the final text of the TNC Act requires. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (“When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.”).

In our case, because Uber’s driver, our client, did not cause the crash, the Bodily Injury Liability coverage in Uber’s Progressive policy does not come into play for our client or his passenger. The only injury-related coverage in Uber’s policy for our crash is the Medical Payments coverage. This coverage does not compensate for non-economic damages such as pain and suffering. Thankfully, the at-fault driver maintained enough bodily injury liability insurance to compensate for our client’s non-economic damages. Had our client’s injuries been more serious, that would not be the case. We do not know the full extent of the passenger’s injuries or what other insurance coverage he may have to know whether he will be fully compensated.

Bottom line: to protect against uninsured and underinsured situations, TNC drivers must maintain their own UM and UIM insurance. The TNC will not provide the coverage for them. The same goes for passengers. If the driver has UM/UIM and the passenger does not have other insurance considered primary for the same measure of damages, the driver’s UM/UIM should provide coverage.

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. /// Premises Liability: Landlord’s Post-possession Duty to Repair Dangerous Defective Conditions

Jeffrey P. Gale, P.A. — Fri, 18 Apr 2025 19:48:43 GMT

Our law firm receives a steady stream of inquiries from tenants, mostly residential, regarding dangerous conditions inside of their units. If someone has been injured, we ask if the landlord or maintenance company had notice of the dangerous condition in advance of the incident. If nobody has yet been injured, we instruct the callers to notify their landlord and maintenance company in writing (email will do).

The reason for this is because landlords and maintenance companies have a continuing duty to repair dangerous conditions upon notice of their existence, unless waived by the tenant. Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981 and § 83.51(1), Fla. Stat. (2021).

In Perez v. Belmont at Ryals Chase Condo, 393 So. 3d 859 (Fla. 2nd DCA 2024), the tenant was injured by falling on loose tiles inside his unit. On two occasions, his wife made complaints about the loose tile to the property management company and its maintenance supervisor. Nevertheless, in reliance on an appellate case in which the landlord was not notified in advance of the dangerous condition (a loose and unsecured towel rack, which was used by the tenant to support herself while exiting a shower), Youngblood v. Pasadena at Pembroke Lakes South, Ltd., 882 So. 2d 1097 (Fla. 4th DCA 2004), the trial judge granted summary judgment for the defendants, the building owner and maintenance company, effectively throwing the case out of court. In essence, the trial judge decided that because the tenant knew of the open and obvious condition, the landlord and maintenance company did not have a duty to eliminate the danger. The Second District Court of Appeal disagreed with the trial judge, reversing the summary judgment.

Another key to the appellate decision in the Perez case is that the condition was considered inherently dangerous. In Menendez v. Palms West Condominium Association, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999), a tenant was shot in the head by an unknown assailant after he opened the front door to answer a knock. In his lawsuit for damages, the tenant alleged that the defendants were negligent for failing to install a viewing device in the front door of the apartment. In finding that “[t]here is no evidence that any specific person had any actual or constructive knowledge of any fact that arguably would make the incident described in [the complaint] reasonably foreseeable,” the trial judge granted summary judgment for the defendants. In essence, the trial court had decided that the lack of a viewing device was not inherently dangerous. The First District Court of Appeal agreed.

The landlord’s duty to a residential tenant: “A landlord’s duty to its residential tenant can be properly divided into a prepossession duty and postpossession duty. Before allowing a tenant to take possession of the residence, a landlord “has a duty to reasonably inspect the premises … and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant.” Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981). “After the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless waived by the tenant.” Id.; see also § 83.51(1), Fla. Stat. (2021).” Perez at 861.

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Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

Jeffrey P. Gale, P.A. — Tue, 18 Mar 2025 21:37:28 GMT

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

In considering a motion for summary judgment, the trial court views the facts in the light most favorable to the non-moving party, draws all reasonable inferences in favor of the non-moving party, and may not weigh evidence or make credibility determinations, which are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11^th Cir. 2019) and Feliciano v. City of Miami Beach, 707 F. 3d 1244, 1252 (11^th Cir. 2013). Accord, Holl v. Talcott, supra; Piedra v. City of North Bay Village, supra; Villanueva v. Reynolds, Smith and Hills, Inc., 159 So. 3d 200 (Fla. 5^th DCA 2015); Rocamonde v. Marshalls of MA, Inc., 56 So. 3d 863 (Fla. 3d DCA 2011), and Moore v. Morris, 475 So.2d 666 (Fla. 1985). Further, if more than one inference can be construed from the facts by a reasonable fact finder, and only one of those inferences introduces a genuine issue of material fact, then the trial court should not grant summary judgment. Birren, supra; citing, Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11^th Cir.1990).

The bottom line is that summary judgment should be denied if there are genuine issues of material fact. In our case, there were many.

It is easy during hearings to get thrown off track by arguments made by the other side. Think of the proverbial red cape being waived in front of the angered bull. In our hearing, the defense attorney spent a good ten minutes spouting facts he claimed supported his position and the granting of Defendant’s motion for summary judgment. Since we strongly disagreed with his interpretation of the facts and the application of those facts to the law, it would have been easy for us to mistakenly get caught up trying to clean up his mess rather than keep our eye on the ball.

By keeping our eye on the ball, we stayed above the fray. When defending a motion for summary judgment, this is the proper approach. The figurative ball on summary judgment is whether there are genuine issues of material fact. Period. Rather than challenge Defendant head-on, we simply showed the court a whole set of material facts a jury could accept to decide in our favor. It was apparent that the judge had read the Defendant’s Motion for Summary Judgment and Plaintiff’s written response, both of which contained the facts the parties mentioned in the hearing, because his ruling came without hesitation after the lawyers had stopped speaking. He understood from the pleadings that there were genuine issues of material fact.

We knew coming into the hearing that the record contained many genuine issues of material fact. We were hopeful that the judge would see this and follow the law. He did. By keeping our focus on the simple MSJ standard, instead of crawling into the mud to challenge the Defendant’s facts and arguments, we made it simple for the court and avoided ‘snatching defeat from the jaws of victory’ — the subject of a future blawg — by getting off-topic.

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Contact us at 305-758-4900 or by email to learn your legal rights.