Jeff D. Vastola Personal Injury Law Blog on Lawyers.com

Successful litigation of a personal injury law suit in Stuart or the surrounding South Florida area requires the personal injury attorney to be completely knowledgeable about the laws of the state in which he or she practices. But as any good accident lawyer in Stuart will tell you, knowledge of current law is not enough. An attorney must keep abreast of current trends in court decisions, appeals, and initiatives for new legislation. The great state of Florida offers several good examples of how personal injury law evolves over time, as well as the complexity of interpreting civil law.

Civil Law

Personal injury law holds that an individual can be compensated for injuries to his physical person, his property, his reputation or even his psyche if he can offer proof that his injuries were caused not by his own fault but by the negligence, carelessness, disregard, or deliberate action of another. Crimes, on the other hand, are wrongs against society or the state that are punishable by fine and/or imprisonment. A person may be tried in a criminal court and sued in a civil court for the same action. O.J. Simpson provides the most famous recent example; although he was acquitted of murder in a criminal court, a civil court found him liable for causing two wrongful deaths.

Florida civil law recognizes three theories of harmful acts or failures to act: intentional acts, negligent failures to act, and strict liability. Each theory requires a different standard of proof of harm. If you choose to file a suit for personal injury, you will need an experienced attorney to help you determine which theory will be most effective, depending on the facts of your case.

Intentional Acts

As the name implies, the defendant intended or was aware of the consequences of his act. Examples are battery, assault, invasion of privacy, trespass, and defamation. The plaintiff –the person who has been injured—must show that:

• The defendant committed the act
• The defendant knew and intended the act to cause harm; and thus
• Harmed the plaintiff

Lawsuits for intentional injury do not necessarily have to show actual physical damages. Emotional distress and mental anguish are sufficient in some cases. Plaintiffs are entitled to compensation for injury to person or property, and may also receive punitive damages, which are aimed at punishing the defendant when his action is found to be willful or malicious.

Negligence

The majority of injury litigation in Stuart or south Florida is brought as suits for negligence. To prove that an injury was caused by negligence, a plaintiff must show:

• The defendant had a duty to conform to a certain standard of conduct to protect others from unreasonable risk
• The defendant was negligent in his duty
• The defendant's negligence was the direct cause of the plaintiff's injury
• The plaintiff suffered an injury

In general, the law imposes a reasonable person standard, expecting everyone to behave at least as carefully as a reasonable, ordinary, prudent person in a similar situation. Plaintiffs must be able to prove injury. If they are successful, plaintiffs are entitled to both compensatory and punitive damages, but recent tort reform legislation in Florida limits punitive damages. Florida collects 35% of every punitive damage award for the state coffers.

Comparative Negligence

Before 1973, Florida civil law operated under a theory of assumption of risk, meaning that a person injured while participating in a risky activity had assumed, by the act of participating, that injury was possible. No one could be found negligent if the person were injured.

Now, Florida law adheres to a theory of comparative negligence, which permits a jury to compare the negligence of the plaintiff with the negligence of the defendant and decide damages accordingly. If the jury finds the plaintiff 10 percent negligent in an accident and the defendant 90 percent negligent, the defendant has to pay only 90 percent of any damage award.

Strict Liability

If a plaintiff sues under the theory of strict liability, the issue of how careful a defendant was or should have been is irrelevant. If the defendant's action was the direct cause of the plaintiff's injury, the defendant is liable.

Strict liability can be applied only in limited areas. For example, owners of wild animals or anyone engaged in extremely hazardous activities (such as heavy construction) may be held strictly liable for injuries: Their activities carry known, obvious risks. However, strict liability may also be used in lawsuits against manufacturers whose products cause injury. To prove a strict liability case, a plaintiff must show that the defendant had an absolute duty to make the activity or product safe. It is crucial to prove that the defendant’s activity or product caused injury, because fault is not at issue.

Vicarious Liability

Vicarious liability describes those instances wherein one person or entity is held liable for the acts of another, even though the first person was not involved in the act, did nothing to encourage the act, and may even have attempted to prevent it. Most commonly, vicarious liability applies to employers, who are liable for negligence of employees acting within the scope of employment. Most people are familiar with vicarious liability as it is applied to owners of bars: Under Florida law, anyone serving alcohol to a minor or to a known alcoholic may be liable for intoxication-related damages caused by the drinker.

Joint and Several Liability

In cases where two or more defendants (whether acting in concert or not) are responsible for an injury, and it is unclear which defendant is responsible for which portion of the injury, the defendants can be found jointly and severally liable for damages. The plaintiff may collect the damage award from the defendants as a whole or individually.

Wrongful Death Lawsuits

In the case of an injury resulting in accidental death, survivors of the deceased (including spouse, children, and parents) as well as the estate of the deceased person may bring a lawsuit for wrongful death. Each survivor may recover for loss of the decedent's support or services. Additionally, the surviving spouse, minor children, and all children if there is no surviving spouse, may recover for loss of companionship and protection. They may also recover for pain and suffering. The estate can recover for lost earning from the date of injury until the date of death, and for funeral and medical expenses if paid by the estate.

Government Immunity

The Florida state government is now liable for the negligent actions of its employees, just as private employers are. However, a plaintiff must show that the government owed him or her a special duty, above that owed to the public at large.

Statutes of Limitation

Florida civil law enforces limits to the time period in which a lawsuit can be filed. For example, a lawsuit based on negligence must be filed within four years of an injury, or a person loses the right to sue for that injury. Statutes of limitation vary according to type of lawsuit.

Filing a personal injury lawsuit in Florida is a process complicated not just by gathering evidence, completing discovery, and turning in paperwork to the courts. Your experienced attorney will analyze the circumstances of your injury and consider all actual laws, theories of law and court interpretations of the law to determine the best approach for your lawsuit.

This article was contributed by the Law Offices of Vastola ~ Schulz, a Stuart injury law firm also located in Boca Raton, North Palm Beach and Vero Beach, South Florida, 877-VASTOLA