Category Archives: Personal Injury

Some Creative Lawyering to Find the Deep Pocket

By: Adam L. Bantner, II

A well-honed skill of any successful plaintiff’s attorney is the ability to find the money, i.e., to sue the party that has the greatest ability to get your client the greatest recovery for his or her injuries. In the typical case, it is the insurance company as most individuals simply aren’t worth that much (financially speaking, of course). The median household income of an American household in 2016 was just $11,100.

Sometimes, when damages are great, insurance is relatively low, and the at-fault driver is broke, an attorney will need to get creative to find the money. A 2018 case out of Palm Beach County illustrates this need.

Seminole Lakes Homeowners’ Association, Inc. v. Esnard

Seminole Lakes is not unlike many communities in Hillsborough County like FishHawk, Riverhills, Buckhorn, etc. It’s a deed restricted community that disallowed vehicles from parking anywhere other than the owner’s driveway or garage. However, since there was a shortage of available parking, it decided to allow owners to park on the street despite a provision of Royal Palm Beach Code that prohibit any parking that impedes the flow of traffic.

The Esnards were travelling to their home one evening and came upon a section of the roadway where, because of vehicles being parked on both sides of the road, only one vehicle could pass through at any given time. While the Esnards were waiting for a vehicle to clear this section so that they may continue on their way home, they were struck in the rear by another driver, Upshur.

While Upshur was clearly negligent by causing the accident, one can only assume that he lacked sufficient insurance or resources to fully compensate the Esnards for the injuries that they suffered from the accident. As such, the Esnards’ attorney decided to sue Seminole Lakes Homeowners’ Association as well under a theory that it was negligent and proximately caused the Esnards’ damages by permitting homeowners and their guests to park on both sides of the community’s streets contrary to its governing documents. They trial judge allowed the case to proceed under this theory and the jury came back in favor of the Esnards finding Upshur 70% at fault and Seminole Lakes 30% at fault. They found the money!

Appellate Court Reverses Trial Court

However, this victory would be short-lived as the Fourth DCA ruled that a directed verdict should have been entered in favor of Seminole Lakes.
“While the vehicles parked on the side of the street caused traffic to slow or even stop, it cannot be said that this was a proximate cause of the Esnards’ damages. It is within common experience while driving on the streets of Florida to encounter traffic that is slowed or stopped for any number of reasons. The law requires every driver to maintain a safe distance from the traffic in front of them to avoid rear-end collisions…In light of all of the evidence, including the lack of any prior incidents of this nature, and the general conditions of this residential neighborhood, we hold that Upshur’s negligence was not reasonably foreseeable by Seminole Lakes, and the failure to enforce its parking rules was not the proximate cause of the Esnards’ injuries.”

As a trial attorney, you have to admire the willingness to advance such a novel legal theory in hopes of getting their clients the best recovery possible.

Not All Vehicles Are Treated Equally

Scooter Accidents

We all know that motorized scooters are great for getting around college campuses such as USF, University of Tampa, or Hillsborough Community College. However, they can be dangerous as they offer little protection for the driver of the vehicle. That danger is further exacerbated when a scooter is taken onto a major thoroughfare such as an interstate like I-75, I-4 or I-275. One collision with a vehicle moving 65-75 MPH and the scooter’s driver is not likely to survive.

Scooter Use on a Highway

The law is pretty clear with regards to scooters and highways: unless they can keep up with the flow of traffic, they should not be used upon such roadways. 

Fla. Stat. 316.091(2) states: “No person shall operate upon a limited access facility [essentially a highway] any bicycle, motor-driven cycle, animal-drawn vehicle, or any other vehicle which by its design or condition is incompatible with the safe and expedient movement of traffic.” 

The key phrase is, of course, “incompatible with the safe and expedient movement of traffic.” In other words, if you can’t go fast enough to not impede traffic, you shouldn’t be on the highway.

What It Means in Court

In a Florida personal injury action, fault can be apportioned by the jury amongst the tortfeasor (the at-fault party) and the victim of the accident. The victim’s recovery will be reduced by his percentage of fault. To keep things simple, if a jury awards $1 million in damages but thinks the victim is 50% to blame, the victim will only recover $500 thousand. 

In Araj v. Renfro, 43 Fla. Law Weekly D2674c (Fla. 5th DCA 2018), the Court reversed and remanded for a  new trial a case where the jury awarded $6 million to the driver of a scooter who was killed in a traffic accident. The jury 25% at fault and his award was likewise reduced by that amount.

However, this case was reversed because the DCA held that the jury should have been instructed on Fla. Stat. 316.091(2) regarding the illegality of driving a scooter that can’t keep up on a highway. The court reasoned that had they been so instructed, the jury may have further reduced the award of damages. 

Having a Skilled Accident Attorney Matters

As you can see from above, injury law can be complicated.  A person’s family in a wrongful death action won’t necessarily recover damages simply because they family member was killed by the negligence of another driver. In considering whether to settle a case or to push it to trial, your attorney must be aware, and make you aware, of the bad with the good. 

Call The Bantner Firm today to discuss your wrongful death action at 813.397.3965. We’d love to help you out!