El representante personal selecciona al abogado que se encargará de la demanda por muerte por negligencia en nombre del patrimonio y de los sobrevivientes. Los acuerdos de honorarios contingentes en estos casos suelen estipular honorarios que oscilan entre el 33⅓% (si se resuelve antes de la demanda) y el 40% (si se resuelve después de presentada y contestada la demanda) del total de la recuperación obtenida para el patrimonio y los sobrevivientes.

En muchos casos, los sobrevivientes están de acuerdo en presentar la demanda por muerte por negligencia y en la distribución de cualquier indemnización. Cuando sus intereses coinciden, esta estructura funciona sin problemas y un solo abogado puede representar adecuadamente a todo el grupo. Esto suele ocurrir, por ejemplo, cuando un cónyuge y los hijos menores presentan una demanda derivada de la muerte por negligencia de uno de los padres.

Sin embargo, cuando los sobrevivientes no tienen intereses comunes, pueden surgir conflictos con respecto a la estrategia del caso, el acuerdo, la distribución de la indemnización y los honorarios de los abogados. Si bien la demanda debe presentarse a nombre del representante personal, cada sobreviviente conserva el derecho a ser representado por un abogado de su elección. Cuando un sobreviviente contrata a un abogado por separado, esa persona necesariamente celebra un acuerdo de honorarios contingentes por separado, generalmente entre el 33⅓% y el 40%, con su propio abogado.

Esto plantea una pregunta importante: ¿debe un sobreviviente representado por un abogado por separado pagar dos honorarios contingentes completos? La respuesta es inequívocamente no.

La Regla 4-1.5 de las Reglas que Regulan el Colegio de Abogados de Florida limita el total de honorarios contingentes que una persona puede estar obligada a pagar. Si un sobreviviente se viera obligado a pagar el porcentaje completo según ambos acuerdos de honorarios, la suma total excedería el límite permitido. Por lo tanto, los sobrevivientes representados por abogados diferentes no están obligados a pagar una “doble tarifa”.

En cambio, todos los abogados que representan a los sobrevivientes en el litigio deben ser compensados ​​con una única tarifa contingente permitida, generalmente del 33⅓% al 40% del total de la indemnización. Si los abogados no llegan a un acuerdo sobre la distribución, el tribunal determinará un reparto equitativo. No existe una fórmula fija para la división; el tribunal considerará los servicios prestados y la contribución relativa de cada abogado a la indemnización.

Contáctenos al 305-758-4900 o por correo electrónico para conocer 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 heridos, los olvidados, los que no tienen voz, los indefensos y los desamparados, y con la protección de los derechos de estas personas frente a la opresión corporativa y gubernamental. 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 ayudar de la mejor manera a quienes requieren representación legal.

AVISO LEGAL: Esta información proporcionada por Jeffrey P. Gale, P.A. tiene fines informativos únicamente y está destinada a ser utilizada como una guía no legal antes de consultar con un abogado familiarizado con su situación legal específica. No debe considerarse asesoramiento legal. No se pretende brindar asesoramiento legal de forma expresa ni implícita. Esta información no sustituye el asesoramiento de un abogado. Si necesita asesoramiento legal, debe buscar los servicios de un abogado.

The personal representative selects the attorney who will pursue the wrongful death claim on behalf of the estate and the survivors. Contingency fee agreements in these cases typically provide for fees ranging from 33⅓% (if resolved pre-suit) to 40% (if resolved after suit is filed and answered) of the total recovery obtained for the estate and the survivors.

In many cases, the survivors agree on pursuing the wrongful death claim and on the distribution of any recovery. When their interests align, this structure works smoothly and a single attorney can adequately represent the entire group. This is often true, for example, when a spouse and minor children pursue a claim arising from the wrongful death of a parent.

However, when survivors lack a commonality of interest, conflicts may arise regarding case strategy, settlement, apportionment of damages, and attorneys’ fees. Although the lawsuit must be filed in the name of the personal representative, each survivor retains the right to be represented by counsel of his or her choosing. When a survivor hires separate counsel, that individual necessarily enters into a separate contingency fee agreement—typically between 33⅓% and 40%—with his or her own attorney.

This raises an important question: must a survivor represented by separate counsel pay two full contingency fees? The answer is unequivocally no.

Rule 4-1.5, Rules Regulating The Florida Bar, limits the total contingent fee an individual may be required to pay. If a survivor were forced to pay the full percentage under both fee agreements, the combined amount would exceed the permissible limit. Accordingly, survivors represented by separate counsel are not required to pay a “double fee.”

Instead, all attorneys representing survivors in the action must be compensated out of the single allowable contingent fee—generally 33⅓% to 40% of the total recovery. If the attorneys cannot agree on an allocation, the court will determine a fair apportionment. There is no fixed formula for the division; rather, the court will consider the services performed and the relative contributions of each attorney to the recovery.

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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.

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.

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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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.

Although nursing homes are obligated to provide care and services to their residents, they are not themselves considered “health care providers” under section 766.102, Florida Statutes (2025). See NME Properties, Inc. v. McCullough, 590 So. 2d 439 (Fla. 2nd DCA 1991). This can prove consequential in legal proceedings as, among other things, claims brought under 766.102 are subject to onerous presuit requirements such as expert affidavits, notice, investigation, and informal discovery. See section 766.106.

Most harmful violations in nursing homes stem from the ordinary negligence of nonprofessional employees. Claims arising from such violations are not governed by Chapter 766, nor are claims against licensed professionals when the exercise of professional skill or judgment is not implicated.

Although a nursing home is not itself considered a health care provider under section 766.102, it may nonetheless be held vicariously liable for the acts of certain agents or employees who are. For example, the facility likely employs nurses licensed under chapter 464. Under the doctrine of respondeat superior, a facility may therefore be liable under the heightened professional standard of care when such an agent, actively involved in the incident, is rendering medical care or services.

Florida’s Wrongful Death Act bars recovery for lost parental companionship, instruction, and guidance, as well as for the mental pain and suffering of adult children over the age of 25, when the parent’s death results from medical malpractice. See section 768.21(8). This represents a unique carve-out from traditional common-law damages, applicable only in medical malpractice cases. It reflects a legislative policy choice rather than a principled public policy determination and is often referred to as Florida’s “Free Kill” law.

If a nursing home resident’s death results from ordinary negligence rather than medical negligence, the limitations of the “Free Kill” law do not apply.

*********************************************************

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.

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.

That changed in 1975, when the Florida Legislature enacted Section 768.28, Florida Statutes, which partially waived sovereign immunity. For the first time, individuals could sue the state and its subdivisions—cities, counties, municipalities—for certain torts. However, this right came with significant limitations. Most notably, the statute capped damages at $100,000 per person and $200,000 per incident, regardless of the actual extent of the injuries or the number of victims. These caps remained unchanged for 36 years.

Modest Reform, Lingering Injustice

In 2009, the Legislature passed a long-overdue amendment, increasing the caps to $200,000 per individual and $300,000 per claim, effective July 1, 2011. While this was a step in the right direction, it remains grossly inadequate for victims of catastrophic government negligence.

Under these limits, if four people are severely injured by a government employee’s negligence, they must divide a maximum of $300,000 among them—no one may recover more than $200,000 individually, even if their injuries are lifelong or fatal. Not even a jury’s decision overrides the cap. For example, say a jury, after weighing the evidence, decides that a person’s damages, between pain and economic loss, exceed $5 million. After the verdict is rendered, the judge will thank the jurors for their service and send them on their way. In the case of a single harmed person, the most the court can award to that person is the $200,000 cap. That’s perverse. The jury’s opinion, after weighing the evidence fairly and impartially, is entirely disregarded in favor of unfair money-influenced legislation.

In 2025, two bills were put forward in the Florida Legislature to increase the limits to $1 million/$3 million, with incremental increases over time. The bills were opposed by organizations such as the Florida League of Cities, Florida Association of Counties, and Florida Hospital Association, while 25 lobbyists were amassed to kill the bills. While one of the bills was approved by the House, both died before reaching the Governor’s desk.

Planning-Level Immunity: An Untouchable Zone

Despite the partial waiver, absolute immunity remains intact for governmental decisions classified as planning-level or discretionary. These include judgments regarding the design, improvement, or initial construction of infrastructure—such as road layouts, intersection design, and placement of traffic control devices.

However, Florida courts have carved out a narrow exception: When a government entity is aware of a serious hazard that creates a hidden danger—effectively a trap—for the public, immunity is waived, and liability may attach (subject again to the statutory damage caps).

When Immunity Becomes Indifference

Our firm recently litigated a case that illustrates the dangers of this doctrine. We represented the husband and three young children of a woman who drowned after her cousin’s car veered into a canal at a poorly marked curve on a dark, rainy night. We uncovered that other vehicles had previously gone off the road at the same location, resulting in fatalities and near-fatal accidents. Just two months after our case, another young woman died under almost identical circumstances at the same curve.

The danger was well known. Still, no corrective action was taken until after these avoidable tragedies. After our lawsuit was instituted, one of the responsible government entities installed an extended guardrail—a fix costing very little —but only after multiple preventable deaths.

We argued, successfully, that this was not a protected planning-level decision. Rather, it was a failure to correct a known trap. But even when liability is established, the available remedy remains a fraction of what private defendants would face.

The Real Problem: Lack of Accountability

This case underscores the greatest flaw in sovereign immunity: a lack of financial accountability. Government entities, shielded from large verdicts, face little incentive to act with the same diligence expected of private citizens or corporations. Where a private business may be compelled to act swiftly to avoid multi-million-dollar judgments, the government can act slowly—or not at all—knowing that its worst-case financial exposure is capped by law.

In effect, sovereign immunity insulates misconduct and dulls the motivation to prevent harm. When negligence results in death or permanent injury, a figurative slap on the wrist is the only consequence.

It’s not just outdated. It’s unjust.

Time for Change

Our firm firmly believes that sovereign immunity, in both its absolute and limited forms, should be abolished or substantially reformed. Government entities should be held to the same standard of care as private individuals and corporations when their negligence causes serious harm.

In a just society, no one—least of all the government—should be above accountability.

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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.

Statute of Limitations

Under Section 95.11(4)(d), a wrongful death action must generally be filed within two years of the date of death. However, if the death resulted from medical malpractice, Section 95.11(4)(b) may allow for an extension of that deadline.
(For more details, see our related post: “The Statute of Limitations (SOL) Under Florida’s Wrongful Death Act.”)

Proper Court and Venue

Wrongful death claims in Florida are usually brought in state circuit courts. Venue is governed by Section 47.011, which generally requires that lawsuits be filed in the county where the defendant resides or where the cause of action arose. If the defendant is a nonresident and has no presence in Florida, the case may need to be filed in federal court.

Who Can File the Lawsuit (Plaintiff)

A wrongful death lawsuit must be filed by a court-appointed personal representative (PR) on behalf of the decedent’s legally defined “survivors.” Often, the PR is a close family member, such as an adult child or parent. In cases involving minor children or legally incapacitated individuals, the court may also appoint a guardian ad litem.
(For a detailed outline of who qualifies as a “survivor,” see our companion blog post.)

Who Can Be Sued (Defendant)

Defendants in wrongful death actions include any individuals or entities alleged to have caused the death through their negligence or misconduct.

Available Damages

The Florida Wrongful Death Act allows survivors to seek monetary compensation for a variety of losses, including:

• Mental pain and suffering
• Loss of companionship and protection
• Past and future loss of financial support and services
• Medical and funeral expenses

These damages are meant to compensate survivors and hold at-fault parties accountable under civil law.
(See our blog on available damages for a more comprehensive breakdown.)

Pretrial and Settlement

Wrongful death claims can be settled at any stage, including before a lawsuit is filed. Many cases are resolved during litigation, but before trial. Others are dismissed by the court, while some proceed all the way to verdict.

Trial Process

Most wrongful death trials are decided by a jury, though the parties may agree to have a judge serve as the fact-finder. While judges rule on legal matters, juries are responsible for determining the facts and awarding damages, if appropriate.

Appeals and Post-Trial Options

Both jury verdicts and judicial rulings can be challenged through the appeals process. The possibility of appeal often plays a role in encouraging post-trial settlement negotiations.

Final Thoughts

Wrongful death cases are among the most emotionally charged and legally complex matters in civil litigation. Due to the high stakes involved—both financially and personally—it is crucial that such claims be handled by experienced and highly competent legal counsel.

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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. 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.

Case law supports the bringing of a lawsuit against the police department. Unfortunately, sovereign immunity makes it a case that few, if any, lawyers are willing to undertake. We were not the first lawyers the mother called. The others turned her down. So did we. The reason why is because the risks and costs associated with litigating the case far outweigh the potential recovery of $200,000. Regardless of a case’s merit, because of sovereign immunity and the relatively minor consequence of a loss, government entities tend to fight every claim hard to discourage otherwise legitimate efforts.

A case against the police department could be brought under the so-called common law “undertaker’s doctrine:”

[i]n every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care…. [E]ven “where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case.“

Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932) (citations omitted) (emphasis supplied) (citing 1 Thomas A. Street, Foundations of Legal Liability 92 (1906)) (quoting Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506 (1906)). In Union Park Memorial Chapel v. Hutt, 670 So.2d 64 (Fla.1996), the Florida Supreme Court reasoned:

It is clearly established that one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care. See Slemp v. City of North Miami, 545 So.2d 256 (Fla.1989) (holding that even if city had no general duty to protect property owners from flooding due to natural causes, once city has undertaken to provide such protection, it assumes the responsibility to do so with reasonable care); Banfield v. Addington, 104 Fla. 661, 667, 140 So. 893, 896 (1932) (holding that one who undertakes to act is under an implied legal duty to act with reasonable care to ensure that the person or property of others will not be injured as a result of the undertaking); Kowkabany v. Home Depot, Inc., 606 So.2d 716, 721 (Fla. 1st DCA 1992) (holding that by undertaking to safely load landscaping timbers into vehicle, defendant owed duty of reasonable care to bicyclist who was struck by timbers protruding from vehicle window); Garrison Retirement Home v. Hancock, 484 So.2d 1257, 1262 (Fla. 4th DCA 1985) (holding that retirement home that assumed and undertook care and supervision of retirement home resident owed duty to third party to exercise reasonable care in supervision of resident’s activities). As this Court recognized over sixty years ago in Banfield v. Addington, “[i]n every situation where a man undertakes to act, … he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured.” 104 Fla. at 667, 140 So. at 896….

Voluntarily undertaking to do an act that if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking confers a duty of reasonable care, because it thereby “creates a foreseeable zone of risk.” McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992); Kowkabany, 606 So.2d at 720-21….

Id. at 66-67 (emphasis supplied) (quoting Restatement (Second) of Torts § 324A (1965) in omitted portion).

The “undertaker’s doctrine” applies to both governmental and nongovernmental entities. Clay Elec. v Johnson, 873 So.2d 1182, 1186 (Fla., 2003).

It is undisputed that the police department affirmatively and specifically undertook to check on the 47-year old woman. Friends and family reasonably relied on law enforcement to do so responsibly. If the case proceeded to trial, challenging questions regarding the reasonableness of law enforcement’s efforts and whether it would have made a difference will be asked among others.

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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.

The legislative intent of the Wrongful Death Act is set forth in section 768.17:

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 motor vehicle crashes, construction accidents, defective products, and even medical negligence, wrongful death is caused in countless ways. The Wrongful Death Act allows the survivors of the decedent to recover from the wrongdoer once fault is established. Included within these remedies is the right to recover for mental pain and suffering. 768.21(8) is the exception to the rule.

Under 768.21(8), when a death is caused by medical negligence, mental pain and suffering damages (known as non-economic losses) are not recoverable by a parent for the loss of an adult child or by an adult child for the loss of a parent. 768.18(2) provides that a child 25 years of age or older is an adult child under the Act.

Yes, you read that right. Hence, the reason why 768.21(8) has come to be known as the “Free Kill” law.

Proponents of the law argue that its purpose is to keep medical malpractice insurance rates in check. Studies do not back up the rhetoric. In McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases based on the same proposition, debunking arguments from medical malpractice insurance lobbyists and organized medicine.

A groundswell of support has formed over the years to repeal the “Free Kill” law. In the 2024 Florida legislative session, various bipartisan bills were put forward to wipe the law off the books. Some no-strings-attached clean bills designed to abolish the law were proposed. Unfortunately, legislators with strong support from the lobbyists in the health care and insurance industry came forward to derail those efforts. SB 248, put forward by state Sen. Corey Yarborough (R), gained traction among Republicans. It conditioned abolishment of the “Free Kill” law on reinstating unconstitutional damage caps — see McCall — in all medical malpractice cases. Thankfully, the bill was defeated, but the distraction resulted in a lost opportunity to eliminate 768.21(8). Maybe next year.

Not a week goes by where our office does not receive an inquiry from a survivor frustrated by the “Free Kill” law hoping for a miracle. The most frequent inquiries come from the adult children of elderly parents. Oftentimes, we are not the first law firm to have to break the bad news. Not that it’s any consolation, but we do tell them to contact their representatives to express displeasure. They all say they will.

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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.

Medicare pays medical expenses while both medical and indemnity (money) benefits are paid by the employer and its insurance carrier in Florida workers’ compensation cases. Each type is often paid in association with cases where the victim ends up dying.

42 CFR sec. 411.24 sets forth Medicare’s lien rights. Section 440.39, Florida Statutes covers the employer/carrier’s lien rights in workers’ compensation cases.

Section 786.21 of Florida’s Wrongful Death Act defines the type of benefits available in civil law wrongful death cases. Section 440.16 does this in the context of workers’ compensation cases. In some instances, a recovery under both laws is available for the same accident.

Under the Wrongful Death Act, the decedent’s estate and his or her survivors, as defined in section 768.18, may be compensated for various forms of damages. The estate’s recovery can be for non-economic damages such as medical expenses and loss of net accumulations, while survivors may recover non-economic damages such as loss of companionship, loss of protection, and mental pain and suffering.

The workers’ compensation death benefit available under section 440.16 is limited to $150,000 payable to the surviving spouse and dependent children in increments.

Medicare’s lien attachment is limited to the settlement or judgment proceeds recovered by the estate. It is not entitled to recover from the non-economic damages received by the survivors. Bradley vs. Sebelius, 621 F.3d 1330 (11^th Cir. 2010).

In contrast, even though it can be argued that the death benefit paid or payable to the spouse and dependents under 440.16 resembles non-economic damages, 440.39 nevertheless allows the employer and its workers’ compensation insurance carrier to recover up to the full amount paid. In pertinent part, subsection (2) provides as follows:

If the employee or his or her dependents [bold added] accept compensation or other benefits under this law or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents [bold added] against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3). If the injured employee or his or her dependents [bold added] recovers from a third-party tortfeasor by judgment or settlement, either before or after the filing of suit, before the employee has accepted compensation or other benefits under this chapter or before the employee has filed a written claim for compensation benefits, the amount recovered from the tortfeasor shall be set off against any compensation benefits other than for remedial care, treatment and attendance as well as rehabilitative services payable under this chapter.

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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.

Sovereign Immunity is a legal concept applied in monarchies and constitutional monarchies such as the United Kingdom, Japan, Jordan, and the Netherlands, to make the sovereign or state immune from civil suit or criminal prosecution. It is derived from the Latin maxim Rex non potest peccare, meaning “the king can do no wrong.” Florida has enacted a modified version of sovereign immunity in the area of civil law involving personal injuries and wrongful death.

Under Florida civil law, people and companies who are not protected by sovereign immunity can be held accountable up to the full measure of the damages caused by their negligence. Those damages can include pain and suffering, medical expenses, and loss of income. In cases involving serious injuries or the loss of life, the full measure of damages can be in the millions.

Florida’s sovereign immunity law limits the amount of compensation the sovereign can be compelled to pay. Under section 768.28(5)(a), Florida Statutes, the sovereign, described as “the state and its agencies and subdivisions,” is limited to paying $200,000 per individual, $300,000 per claim. In other words, the most a sovereign will ever have to pay in a single case is $300,000. It does not matter how substantial the actual losses are.

This arbitrary sovereign immunity cap defeats the public policy of encouraging safe conduct.

Because of the cap, most personal injury and wrongful death lawyers refuse to accept cases against sovereign entities. Not only is the potential recovery limited, cap defendants tend to put up the biggest fight since it is taxpayer money rather than their own being used to fund the fight.

Some other reasons why lawyers reject cap cases:

Another important public policy is the principle known as “judicial economy.” Essentially, limiting the use of court resources. The sovereign immunity cap defeats this policy. In non-sovereign cases, the defendant can be motivated to settle for a reasonable sum to avoid the potential of having to pay a significantly higher jury verdict. The sovereign cap eliminates this leverage point. Even in cases with clear fault and damages well in excess of the cap, sovereign defendants almost never offer to settle for the full cap amount. This is because they have nothing to lose and often gain by holding out.

Prosecuting any case to a jury verdict is costly and time-consuming. Where the potential recovery is capped no matter what the jury says, it quickly reaches the point where continuing to push forward does not make sense. The sovereign knows this, so it holds out. Even if a jury awards ten or even a hundred times more than the cap, the sovereign cannot be compelled to pay a penny more than the cap amount.

Not even a successful demand for judgment can result in the cap being breached. Under section 768.79, Florida Statutes, a plaintiff can recover attorney’s fees and costs from a defendant if the plaintiff recovers a judgment in an amount at least 25% greater than a settlement offer served in accordance with the statute. In some instances, those fees and costs can amount to hundreds of thousands of dollars. The purpose of the statute is to encourage settlements. The statute works exceedingly well in non-cap cases. In cap cases, it is virtually meaningless. Not even an award under 768.79 can force the sovereign to pay more than the cap amount. If, for example, the jury verdict is $2,000,000 and the 768.79 award is $350,000, the most the sovereign has to pay is $200,000 to any one person and no more than $300,000 if more than one person is involved.

Interestingly, the sovereign immunity cap does not apply in workers’ compensation cases. The sovereign can be held to full account for the benefits available under the workers’ compensation system. However, it should be noted that non-economic damages such as pain and suffering are not available in workers’ compensation cases. This is often the largest damage element of a personal injury or wrongful death case. Nevertheless, the sovereign’s exposure in a workers’ compensation case can be sizeable, well above $300,000.

The sovereign immunity cap has worn out its usefulness, if it ever had any to begin with, in America’s jurisprudential system — Florida is not the only state to employ the concept. It is time for the antiquated concept to be relegated to the dustbin of history.

With all of this said, anyone harmed through the negligence of a sovereign should consult with a lawyer to learn his or her rights. We are in suit now against a non-cap surgeon and the sovereign hospital in which the surgeon caused significant harm to our client performing surgery in the hospital. (We only decided to sue the sovereign because the action is ancillary to our case against the non-sovereign doctor. We would not have filed suit against the sovereign alone.)

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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.