A foundational source for understanding Florida UM law is the Florida Supreme Court’s landmark decision in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So. 2d 229 (Fla. 1971). While the majority opinion provides a thorough discussion of UM principles, the specific issue before the Court was whether a resident relative injured while operating a vehicle owned by another resident relative – where that vehicle was not insured under the UM policy – was nonetheless entitled to UM benefits. The policy expressly excluded such coverage. The trial court and First District Court of Appeal upheld the exclusion, relying on United States Fidelity & Guaranty Co. v. Webb, 191 So. 2d 869 (Fla. 1st DCA 1966).

The Florida Supreme Court disagreed, holding that the exclusion was contrary to the UM statute and therefore unenforceable. The Court explained:

“Whenever bodily injury is inflicted upon the named insured or insured members of his family by the negligence of an uninsured motorist – under whatever conditions, locations, or circumstances they may be in at the time – they are covered by uninsured motorist liability insurance issued pursuant to section 627.0851. They may be pedestrians, passengers in someone else’s vehicle, in public conveyances, or occupying vehicles (including motorcycles) owned by but not insured under the UM policy of the named insured.”

The Court emphasized that this broad coverage applies to the named insured and resident relatives, but does not extend equally to all others who may be permissive users or occupants of the insured vehicle. As the Court noted:

“These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent.”

Legislative Caveat After Mullis

Following Mullis, the Legislature amended the UM statute. Section 627.727, Florida Statutes, now permits insurers to offer limitations on UM coverage—but only if specific statutory notice and acceptance requirements are met. See Carbonell v. Automobile Ins. Co., 562 So. 2d 437 (Fla. 3d DCA 1990).

One key limitation in subsection (8)(d) provides:

The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.

These limitations are enforceable only if (1) disclosed on a form approved by the Department of Insurance, and (2) knowingly accepted by the insured. Rejecting the limitation generally results in a higher premium.

Additional Important UM Issues in Florida

• Settlement with liability insurers
  Under section 627.727(6)(a), if an injured person (or personal representative) intends to settle with a tortfeasor and that settlement will not fully satisfy the claim, written notice of the proposed settlement must be sent by certified or registered mail to all UM carriers. Each UM carrier has 30 days to either approve the settlement or elect to preserve subrogation rights.
• Examinations Under Oath (EUOs)
  Most UM policies include contractual EUO provisions. Failure to appear or cooperate may result in a denial of UM benefits.
• Bad-faith actions
  Before filing a UM bad-faith lawsuit, the insured must obey the civil remedy requirements of section 624.155, Florida Statutes.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com & kgale@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.

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.

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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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.

Advance companies have no recourse beyond the case. They cannot foreclose on property or garnish wages. If the case fails or the recovery is insufficient, the company bears the loss. Given the inherent uncertainties of litigation, this risk is very real. Cases can “go south” for a variety of reasons.

To secure repayment, funding companies require injured individuals to sign lien and assignment agreements, obligating their attorneys to satisfy the lien directly from any settlement or judgment proceeds.

Important Considerations

1. Pressure to Accept Low Settlements: Because of compounding interest, clients may feel compelled to accept early, inadequate settlement offers to stop the financial bleeding.
2. Pressure to Reject Fair Settlements: Conversely, some clients may reject reasonable offers in hopes of securing a recovery large enough to pay off the advance, thereby taking unreasonable risks at trial.
3. Risk of Privilege Waivers: In assessing risk, some funding companies request detailed written evaluations from attorneys. If shared, these communications could be used by opposing parties to argue waiver of attorney-client or work-product protections.

As a general practice, we advise clients to avoid these advances. However, we also recognize that financial necessity can override ideal strategy. Recently, we assisted a client with obtaining an advance to pay for a crucial surgery. He had suffered catastrophic injuries, lacked health insurance, and had exhausted his personal funds. While the repayment will be significant, the advance has given him access to medical care he would not otherwise have received. He was deeply grateful for our assistance.

Suggested Funding Companies

For clients who insist on proceeding, we provide names of several reputable funding companies as options, including:

• Client Legal Funding
• Capstone Financial Services, LLC
• Cash Now Funding Group
• Multi-Funding USA
• Peachtree Financial Solutions

This is not an exhaustive list. Clients are strongly encouraged to research companies carefully, paying close attention to interest rates and repayment terms.

Why We Can’t Provide Advances

Clients often ask us directly for financial assistance. We must respectfully decline. Florida Bar Rule 4-1.8(e), set forth below, expressly prohibits lawyers from providing financial aid to clients in connection with pending or contemplated litigation, except in very limited circumstances. The purpose of this rule is sound: a lawyer with a financial stake in a client’s personal situation may feel pressured to compromise the case to secure repayment—for example, by pushing for an early settlement.

Rule 4-1.8(e) – Financial Assistance to Clients
A lawyer is prohibited from providing financial
assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

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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.

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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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. 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.

However, not all hazardous conditions trigger a duty to warn. Courts have repeatedly found that certain commonplace conditions—such as uneven floor levels and sidewalk curbs—are open and obvious, and therefore do not qualify as concealed dangers. For example:

• In Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952), the Florida Supreme Court held that uneven floor levels in public areas are not latent or hidden hazards.
• In Gorin v. City of St. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992), a curb used for tram boarding was deemed not to be a hidden danger.
• Similarly, in Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d DCA 1990), a six-inch sidewalk curb at a mall was not considered a latent or concealed risk.

These cases reflect the application of the “obvious danger doctrine”—a legal principle that allows landowners to assume that an invitee will perceive obvious risks through ordinary use of their senses. Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990).

The Limitations of the “Open and Obvious” Defense

Critically, the fact that a condition is open and obvious does not automatically relieve a landowner of liability. Florida courts recognize a concurrent duty to maintain premises in a reasonably safe condition. As stated in De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013), “the landowner’s duty to maintain the premises in a reasonably safe condition is not discharged merely because the danger is open and obvious.”

There are two relevant legal categories here:

1. Conditions that are so obvious and not inherently dangerous that no duty arises because a reasonably prudent person would avoid them without warning. See Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983) (holding that a difference in floor levels, even in dim lighting, was not inherently dangerous).
2. Conditions that are dangerous yet obvious, where the landowner may still escape liability—unless the landowner should reasonably foresee that invitees might still encounter the hazard and be harmed. See Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1311 (Fla. 1986); Etheredge v. Walt Disney World Co., 999 So. 2d 669, 672 (Fla. 5th DCA 2008); Aguiar v. Walt Disney World Hospitality, 920 So. 2d 1233, 1234 (Fla. 5th DCA 2006).

Case Example: Cracked Sidewalk

The case of Middleton v. Don Asher & Associates, 262 So. 3d 870 (Fla. 5th DCA 2019), illustrates this principle well. There, the plaintiff tripped over an uneven sidewalk joint at a condominium. Although the trial court granted summary judgment on the basis that the condition was open and obvious, the appellate court reversed, holding that a factual issue remained as to whether the property owner should have anticipated that residents would still use the sidewalk and potentially be harmed—despite the obviousness of the defect.

A Recent Case from Our Office

We were recently retained to represent a woman who tripped in a pothole on a condominium sidewalk, falling face-first onto the pavement and suffering significant dental injuries. The fall occurred after sunset in a poorly lit area, and she was unfamiliar with the premises. While the pothole may have been visible during daylight, it was not readily observable at night. Even assuming the condition was open and obvious, the property owner could have reasonably foreseen that a resident or guest might not see the hazard in low lighting and suffer injury.

The Takeaway

Premises liability cases are highly fact-specific. Courts consider numerous factors: visibility, lighting conditions, foreseeability, prior incidents, and whether reasonable steps were taken to make the area safe. The presence of an “open and obvious” condition is not necessarily a complete defense—it merely shifts the focus to whether the property owner should have reasonably anticipated harm.

If you or someone you know has been injured on someone else’s property, it is essential to act quickly to preserve evidence, document the scene, and understand your legal rights. A prompt and thorough investigation can often make the difference between a viable claim and a lost opportunity.

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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.

Conditions such as uneven floor levels and sidewalk curbs have been found by Florida courts to be open and obvious. E.g., Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952) (concluding that uneven floor levels in public places do not constitute latent, hidden, and dangerous conditions); Gorin v. City of St. Augustine, 595 So. 2d 1062, 1062 (Fla. 5th DCA 1992) (concluding that sidewalk curb used as platform to pick up and drop off passengers riding a tram is not hidden dangerous condition); Aventura Mall Venture v. Olson, 561 So. 2d 319, 320 (Fla. 3d DCA 1990) (finding that six-inch sidewalk curb located at a mall is not “concealed or latent danger”).

The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their senses. See Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990). This doctrine is counterbalanced by the principle that a landowner’s duty to maintain his premises in a reasonably safe condition is not discharged by the dangerous condition being open and obvious. De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013).

Some conditions are so obvious and not inherently dangerous that a failure to maintain the premises in a reasonably safe condition will not give rise to liability. See, e.g., Schoen v. Gilbert, 436 So.2d 75 (Fla.1983) (holding difference in floor levels is not inherently dangerous condition, even in dim lighting, so as to constitute failure to use due care for safety of person invited to premises). Other conditions are dangerous, but are so open and obvious that an invitee may be reasonably expected to discover them and to protect himself. See, e.g., Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1311 (Fla.1986). In these circumstances, the landowner is absolved of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness. Id.; Etheredge v. Walt Disney World Co., 999 So.2d 669, 672 (Fla. 5th DCA 2008); Aguiar v. Walt Disney World Hospitality, 920 So.2d 1233, 1234 (Fla. 5th DCA 2006).

Middleton v. Don Asher & Associates, 262 So. 3d 870 (Fla. 5th DCA 2019), is a trip and fall case involving a cracked and uneven sidewalk. The trial judge granted summary judgment for the Appellees based on the argument that they did not have a duty to warn because the uneven joint between the two concrete sidewalk segments was open and obvious. On appeal, the summary judgment was reversed and the cause was remanded for further proceedings. The DCA agreed with Defendant that, because the condition was open and obvious, it did not have a duty to warn. However, it felt that “a factual issue remained as to whether Appellees should have anticipated that, notwithstanding that the condition was obvious, condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, and could be harmed thereby.” Id at 873.

We have recently been asked to handle a case for a woman who fell to the ground and struck her face on the pavement after twisting her ankle in a pothole in a sidewalk. She now requires extensive dental work. The incident happened on private property, a condominium, after sunset under poorly lit conditions. She was unfamiar with the area and did not see the pothole. While the condition may have been open and obvious in daylight hours, it was not at night. Even if it had been O & O, it was foreseeable to the landowner that someone might nevertheless not see the dangerous condition and suffer a fall.

Premises liability cases are exceedingly fact-specific. A multitude of factors must be taken into account to determine the viability of a case. It is also important to take quick action to preserve evidence.

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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. 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.

An uninsured vehicle is one that does not maintain bodily injury coverage or, like a hit-and-run phantom vehicle, cannot be identified.

Interestingly, UM coverage may be available for injuries caused by road debris from an unknown source. However, the cases hold that the inference the debris came from another vehicle must be inescapable, or at least “outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances.” Voelker v. Combined Insurance Co. of America, 73 So.2d 403, 405 (Fla. 1954), citing King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858 (1936). See also Little v. Publix Supermarkets, Inc., 234 So.2d 132 (Fla. 4th DCA 1970).

In Allstate Insurance Company v. Bandiera, 512 So.2d 1082 (Fla. 4th DCA 1987), the appellate court denied coverage to a passenger injured by a cinder block from an unknown source. It felt that it was just as plausible that the cinder block was thrown at the car by pedestrians standing at the side of the road.

In State Farm Mutual Automobile Insurance Company v. Hanania, 261 So.3d 684 (Fla. 1st DCA 2018), the court reached a different result by conluding that the inference a ladder fell from a motor vehicle was established to the exclusion of all other reasonable inferences. It pointed out that the bridge on which the accident happened was not a pedestrian bridge, that there were no overpasses over the bridge, and that the ladder was located at least a mile along the bridge.

The Hanania court felt that its inference was even stronger than the inference in Denoia v. Hartford Fire Insurance Co., 843 So.2d 285 (Fla. 3d DCA 2003), in which “the Third District held that the plaintiff could seek uninsured motorist benefits for injuries he sustained when his vehicle was struck by a twelve to fifteen-foot steel beam lying in the highway where the only plausible explanation for its being on the roadway was that it had been improperly secured on a truck and had fallen from the truck onto the roadway.” Hanania at 687.

In Denoia, “the car in front of the plaintiff ran over a steel beam which was lying in the roadway. This propelled the beam up into the air, and it struck the plaintiff’s front bumper.” Id. at 286. The court decided that the only plausible explanation for the steel beam being on the roadway was that it had been improperly secured on a truck and had fallen from the truck onto the roadway. It noted that there was no adjacent construction site and no other explanation for the presence of the beam on the roadway.

To recover in these cases, the plaintiff must carry the burden of proof on two inferences. The threshold inference is the one discussed above, namely: that the debris came from a motor vehicle. The second inference is that the debris ended up in the road due to the motor vehicle operator’s failure to act reasonably. See Hanania at 687. This is stacking inferences.

Here’s the rule on stacking inferences:

To prove a prima facie case of negligence…, circumstantial evidence can be used “as effectively and as conclusively” as direct positive evidence, but if a party “depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.”

Davie Plaza, LLC v. Iordanoglu, 232 So.3d 441, 445 (Fla. 4th DCA 2017) (quoting Nielsen v. City of Sarasota, 117 So.2d 731, 733 (Fla. 1960)). “The purpose of this rule against stacking inferences is `to protect litigants from verdicts based on conjecture and speculation.'” Broward Exec. Builders, 192 So.3d at 537 (quoting Stanley v. Marceaux, 991 So.2d 938, 940 (Fla. 4th DCA 2008)). “In a negligence action, if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the `exclusion of all other reasonable inferences,’ but then stacks further inferences upon it to establish causation, a directed verdict in favor of the defendant is warranted.” Id. One more thing: Notify the police and the uninsured motorist carrier of the incident immediately, preferably within 24 hours.

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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. 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.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such 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 north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

What is a directed verdict? A directed verdict is “where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Friedrich v. Fetterman & Assocs., P.A., 137 So.3d 362, 365 (Fla. 2013) (quoting Owens v. Publix Supermkts., Inc., 802 So.2d 315, 315 (Fla. 2001)); see also Cox v. St. Joseph’s Hosp., 71 So.3d 795, 801 (Fla. 2011) (explaining “a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury”).

The Gooding Rule was applied nearly 40 years later in R.J. Reynolds v. Nelson, 47 Fla. L. Weekly D2436 (Fla. 1st DCA, Nov. 23, 2022), a tobacco case. Reynolds was sued for strict liability and ordinary negligence alleging a design defect of Reynolds’ cigarettes caused Mr. Roosevelt Gordon to develop COPD. (He passed away in 2021, shortly after the jury trial in this case. His daughter, Rosena Nelson, was appointed personal representative of his estate.) As in Gooding, the trial court was reversed on appeal for failing to grant a directed verdict. Citing “the lack of any evidence of Reynolds’ proximate cause of Mr. Gordon’s fatal disease,” the appellate court decided that a directed verdict on both the strict liability claim and the negligence claim should have been granted by the lower court.

Not all proximate cause cases go against the plaintiff. In Aragon v Issa, MD, 103 So.3d 887 (Fla. 4th DCA 2012), the trial judge was reversed for granting a motion for judgment in accordance with the motion for directed verdict against the plaintiff. The appellate court decided that since the plaintiff presented evidence that could support a jury finding that the defendant more likely than not caused the death of Aragon, it was improper for the trial judge, instead of the jury, to weigh conflicting evidence and assess the credibility of the witnesses.

In Claire’s Boutiques v Locastro, 85 So.3d 192 (Fla. 4th DCA 2012), the appeals court decided that the trial court was correct in denying defendant’s motion for directed verdict on proximate cause. The defendant urged that a directed verdict should have been granted since there was insufficient evidence that its actions “caused” the infection and resulting injuries. The court noted:

In negligence cases, like the present one, “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). If sufficient evidence is offered to meet this standard, the remaining questions of causation are to be resolved by the trier of fact. Wallace v. Dean, 3 So.3d 1035, 1047 n. 18 (Fla. 2009).

Proximate cause does not equal primary cause. In Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So.3d 977 (Fla. 2018), a medical malpractice wrongful death case, numerous medical providers were sued. Finding that one of the doctors did nothing more than place decedent in a position to be injured by the independent actions of third parties — namely, the surgeons — the trial judge granted a directed verdict in the doctor’s favor. Ruiz appealed, and the district court affirmed the trial court’s ruling, concluding that no competent, substantial evidence in the record would allow a reasonable factfinder to conclude Dr. Lorenzo was the “primary cause” of Espinosa’s death. Ruiz v. Tenet Hialeah Healthsys., 224 So.3d 828, 830 (Fla. 3d DCA 2017). The Supreme Court reversed.

Since the ruling below involved a directed verdict, the Supreme Court framed the issue as follows:

[W]hether there was competent, substantial evidence in the record which would permit a reasonable factfinder to conclude that Dr. Lorenzo, more likely than not, proximately caused Espinosa’s death.

With supporting citations, the Court explained 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.” As an example, it pointed to Sardell v. Malanio, 202 So.2d 746, 746-47 (Fla. 1967), a case in which the Court held that a young boy who threw a football to his friend could be held to have proximately caused the injuries sustained by a passerby with whom his friend collided as he tried to catch the ball. It rejected the district court’s reasoning in Sardell that the boy who threw the ball had no physical control over the pass catcher and had no reason to expect the collision with the plaintiff, so that boy’s act of throwing the football could not be the proximate cause of the plaintiff’s injuries. Id. at 747 (quoting Sardell v. Malanio, 189 So.2d 393, 394 (Fla. 3d DCA 1966)).

The Court concluded its opinion as follows:

Our precedent makes clear that Dr. Lorenzo cannot prevent Ruiz from establishing proximate cause merely by showing his actions or omissions were not the primary cause of Espinosa’s death. Instead, to foreclose liability on the grounds of causation, Dr. Lorenzo’s acts or omissions must not have substantially contributed to Espinosa’s death as part of a natural and continuous sequence of events which brought about that result. See McCain, 593 So.2d at 502-03; Gooding, 445 So.2d at 1018. To obtain a directed verdict on this basis, Dr. Lorenzo must show there is no competent, substantial evidence in the record which would permit a reasonable factfinder to reach such a conclusion at all. See Friedrich, 137 So.3d at 365; Cox, 71 So.3d at 801.

Interestingly, proximate cause is always applicable in workers’ compensation cases:

The established rule in workers’ compensation is that a causal relationship between an employee’s injury and the industrial accident must be shown by competent substantial evidence. § 440.02(1) & (17), Fla. Stat. (1991) (defining “accident” and “injury,” respectively); Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991); Stephens Trucking Co. v. Bibbs, 569 So.2d 490 (Fla. 1st DCA 1990).

In Escambia County Board of County Commissioners v. Reeder, 648 So.2d 222 (1994), the claimant, who was hurt when he was thrown from a bulldozer that rolled over, used the rule to defeat the employer/carrier’s efforts at reducing his compensation by 25% pursuant to section 440.09(5), Florida Statutes, which reads as follows:

If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.

The bulldozer was equipped with a safety belt but not a shoulder harness. Claimant, who had been advised to wear the safety belt, was not wearing the belt at the time of the accident. He asserted that, in order to reduce his compensation, E/C must prove a causal connection between his failure to wear the safety belt and his injuries. The judge of compensation claims (JCC) agreed and after taking evidence on the issue, ruled that although Claimant had been aware of and had knowingly disregarded Employer’s valid safety rule, the proof was insufficient to establish the requisite causal connection (between the injury and the failure to wear a safety device) that would justify Employer’s taking a statutory 25 percent reduction in Claimant’s indemnity benefits. The JCC’s ruling was affirmed on appeal.

Like a football receiver taking his eye off the ball in the heat of the moment or a tennis player forgetting the importance of sound footwork, in complex cases, especially, lawyers sometimes lose sight of the fundamentals. Fundamentals always matter. In personal injury cases, proximate cause is a fundamental.

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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. 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.

Against Employers:

1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

1. The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or
2. The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

Some employers have the personal financial wherewithal to meet the obligations associated with significant civil damages. Most individuals do not. Interestingly, the legal principle respondeat superior, which is Latin for “that the master must answer,” does not apply in the realm of workers’ compensation immunity so as to make the employer financially responsible for civil damages caused by a co-employee. See Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 7 (Fla. 2004) (Lewis, J., concurring in result) (noting that the “unrelated works exception to the rule of general immunity applies only in the co-employees context, and application of the provision does not result in the loss of general immunity by an employer”) and Vallejos v Lan Cargo, SA, 116 So.3d 545 (Fla. 3rd DCA 2013). (The statute does not mention any imputation of liability onto the employer and specifically states that immunity includes vicarious liability).

Injured workers have the right to receive workers’ compensation benefits from the employer and maintain an action at law at the same time against fellow employees. Because the remedies are against different entities, pursuing both will not be considered an election of remedy to bar one or the other.

Nevertheless, thoughtful consideration should be given to pursuing a civil remedy against a fellow employee when the financial resources may not be available to pay the damages. The practice of law is a business. Good decisions must be made with regard to the investment of time and resources.

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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.