The liability of a property owner for a condition which is open and obvious

“Slip and Fall” and “Trip and Fall” lawsuits are very controversial.  There have been many investigative reports where people are caught on camera faking or staging a fall in order to file a claim against an innocent property owner.  But, for as many of these fraudulent claims that exist, there are far more legitimate slip and fall cases where property owners fail to maintain their property safely.  This poor maintenance oftentimes leads to serious injuries when people slip and fall.

 

One of the most common defenses asserted by property owners is that, despite their own negligence in failing to repair known dangerous conditions, the condition that causes the fall is so “open and obvious” that the injured person should have seen it and avoided it.  Defense lawyers and property owners argue that because the condition which caused the fall was in plain sight, the property owner should not be responsible for the injuries, even though the property owner allowed his property to deteriorate.  Instead of these cases being decided by a jury, the property owners ask the judge to dismiss the case for the plaintiff’s failure to appreciate the open and obvious defect in the property.

 

In a recent case from the Third District Court of Appeals in Miami, the Court held that dismissing Florida slip and fall lawsuits on these grounds is improper.  Instead, the Court held that the deterimination of fault under these circumstances should be made by a jury and not a judge.

 

In Weider v King Cole Condo Association, the plaintiff was walking in a common area in her apartment complex.  The common area carpet had recently been cleaned and was still damp.  The Plaintiff testified that on prior occasions, when the carpet was cleaned, the carpet would buckle and raise in certain areas.  While she was able to avoid the tripping hazard on other occaisons, this time she tripped on the buckled carpet and suffered injuries.  The condo association moved for summary judgment (meaning they asked the judge to throw the case out before it got to the jury).  The condo argued that since the Plaintiff knew that the condition existed and had seen and avoided it before, she should not be able to hold the condo association responsible for her injuries.  The trial judge agreed with the condo association and dismissed the case.  However, on appeal, the Third District reversed the trial judge, holding that a property owner is not entitled to judgment as a matter of law just because the plaintiff should have appreciated a dangerous condition.  Instead, the appellate court held that the determination of fault is the job of the jury.

 

In Florida, we have the “comparative fault” rule.  This means that a jury is permitted to assign blame to multiple parties, including the plaintiff.  When the jury receives the case, they are asked to determine whether the defendant is at fault and whether the plaintiff is at fault.  If the jury finds that both parties are at fault, the jury is asked to assign a percentage of fault to each party.  If the plaintiff is assigned a percentage of fault, the damages are reduced by that percentage.  For example, if the jury finds that the plaintiff suffered $100,000 worth of damages and also finds that the plaintiff was 50% at fault, the defendant only needs to pay half of the damages, or $50,000.

 

In the Wieder case, the Third District made the proper decision.  Certainly, I am not advocating for the plaintiff to be free from blame in every slip and fall case.  But, it is proper to allow the jury to make that decision.  It is entirely possible that, after hearing all of the evidence, the jury will find that the plaintiff is 100% to blame.  If that happens, the defendant will win the case.  But in our system, we need to make sure that cases that contain factual disputes are decided by a jury.

 

The Leto Law Firm is a Miami personal injury law firm specializing in Miami wrongful death cases and Miami traumatic brain injury cases.

Justin C. Leto’s weekly appearance on nationally syndicated radio talk show, America Now with Andy Dean

 

Click here to listen to Justin Leto’s weekly appearance on America Now with Andy Dean, March 20, 2013

 

This week, on Justin Leto’s appearance on America Now with Andy Dean, Justin and Andy discussed legal issues ranging from First Amendment Rights and issues involving eomplyment law.  The following are some of the stories we discussed:

 

1.     Are exotic dancer entitled to the same rights as any other employees.  In a case that is being certified as a class action lawsuit, exotic dancers are alleging that they have been deprived of their rights to minimum wage and other employee rights.  Andy seems to enjoy this story just because it deals with strippers.  But, as i explain to Andy, it does not matter whether these women are strippers or any other type of employee, they are still entitled to the same rights as any other employee.  The strip club owner takes the position that the strippers are independent contractors and, thus, he does not have to pay them minimum wage or provide any other benefits.  But the owner is wrong and I predict the courts will find in favor of the dancers.  The test to determine whether you are an employee or an independent contractor is the level of control that the “employer” has over you.  In this case, the dancers are required to charge certain amounts, are required to give a percentage to bartenders and other club employees and are required to report on schedule as per the club.  Under these circumstances, this is an employee-employer relationship and this case will be won by the dancers.

 

2.     The appeal by Steubenville rapists.  The young men convicted of raping a young girl after she passed out from alcohol are appealing the case, claiming that the 17 year old convicted rapist’s brain in not developed enough to appreciate his actions.  Andy takes the position that the lawyer that filed this appeal is a shame to the legal profession.  As I explain to Andy, he completely disregards the fact that a convicted criminal is entitled to an appeal.  The lawyer that filed this appeal is doing his job and there is nothing wrong or shameful about filing this appeal.  The United States differentiates itself from other nations because we provide certain rights and access to the courts.  While one may not agree with what these young men did, they have a right under our laws to appeal their conviction.  And no matter how heinous the crime or how despicable the criminal, our country remains great because everyone is allows their day in court.

 

The Leto Law Firm is a Miami personal injury law firm and a Miami medical malpractice law firm that also specializes in product defect cases.

Justin C. Leto’s weekly appearance on nationally syndicated radio talk show, America Now with Andy Dean

 

Click here to listen to Justin Leto’s appearance on America Now with Andy Dean, March 13, 2013

 

Every Wednesday, Miami personal injury lawyer Justin Leto makes an appearance as a legal analyst on nationally synidcated radio talk show, America Now with andy Dean.  During this past week’s segment, Justin and Andy discussed an array of topics, including the following:

 

1.  California Congressman’s attempt to tax the sale and purchase of guns and ammunition.  Andy Dean is an avid protector of the 2nd Amendment and resists any call for laws that would restrict or inhibit gun ownership.  Amid the recent tragedy in Connecticut, there has been a call for increased gun restictions.  One such restriction that is being proposed by a Democratic congressman from California.  The proposed legislation would impose a 10% tax on any concealable firearm and the revenue would be used to fund a national gun buyback program.

 

Andy argued that such a tax would be unconstitutional because it would frustrate the purpose of the 2nd Amendment.  However, Justin explained that Andy is incorrect in his interpretation of the Constitution and that such a tax, iof approved by the House and Senate, would be permissible.  The United States Constitution allows the government broad powers to levy taxes.  In order for this tax to be legal, the bill to impose the tax would have to originate in the House of Representatives.  If the bill passed the House, then the Senate would vote.  If the bill also passed the Senate, it would be sent to the President for either signature or veto.  As long as this procedure is followed, there is nothing unconstitutional about this tax.  The cases on the government’s broad ability to tax date back centuries.  And most recently, in the healthcare debate, Justice Roberts wrote that Obamacare was constitutional because it fell under the federal powers to levy taxes.

 

While Andy and others that oppose any restrictions on guns may not like this proposed bill, its introcution to the House is being done to the letter of the Constitution.  Now, realistically, there is little chance that any such bill would get through the House of Representatives, so most of this is theoretical discussion.  But purely as to whether such a law could pass constitutional muster, the answer is clearly “yes.”

 

2.  Cannibal cop convicted.  In NY, a former police office was convicted of plotting to kidnap, murder and eat the remains of his wife.  The case centered around his wife’s discovery of the former cop’s internet searches and chat room discussions.  In these discussions, the officer discussed his desire to torture, kill and cook his wife.  The jury convicted him, but as Justin discussed with Andy, the verdict is doomed for reversal on appeal.  While the cop is clearly depraved, the legal question centers around whether he actually threatened his wife and whether his internet rambling were criminal or just pure fantasy.  Had he directed these thoughts to his wife or had done anything to set his devious plan in motion, than a conviction would be warranted.  But in these days of interent fantasy, it is difficult to conceive that these thoughts would amount to a crime.  Certainly, the Courts have their work cut out for them as the digital age expands, and clarity is necessary to determine what is, and what is not, a crime.

 

The Leto Law Firm is a Miami personal injury law firm specializing in Miami medical malpractice and defective products lawsuits.

The Leto Law Firm defeats Medtronic’s motion to dismiss claims related to the dangerous Infuse bone graft

 

Lazaro Martinez suffered serious injury as the result of back surgery.  During the surgery, our Miami medical malpractice lawyers allege that a neurosurgeon made several medical errors in the placement of pedicle screws which caused serious nerve damage.  The Complaint also alleges that a radiologist reading an MRI shortly after surgery failed to recognize the misplacement of the pedicle screws, thus allowing the impingement upon Lazaro’s nerves to continue.

 

Furthermore, we allege that the negligent neurosurgeon used a dangerous product during surgery known as the Infuse bone graft, which is manufactured by Medtronic, Inc. and Medtronic Sofamor Danek USA, Inc.  The surgeon used Infuse is a way that was not approved by the Food and Drug Administration and, as a result of this “off-label” use, the Infuse caused serious overgrowth of bone throughout Lazaro’s back, ultimately encasing his nerve roots and causing serious and irreversible nerve damage.

 

In our Complaint, , we allege that Medtronic was aware of the problems associated with Infuse but failed to make them known to both the FDA and the general public (including doctors that use their products).  Instead of providing information to the FDA and the physicians, we allege that Medtronic concealed the information and actually paid physicians to write more favorable reports on the testing of Infuse.  Further, we allege that Medtronic promoted Infuse for a use for which it was not approved.  Lastly, we allege that when Medtronic became aware of problems associated with off label use of Infuse, Medtronic turned a blind eye and continued to promote a use which they knew was unreasonably dangerous.

 

This seems like a simple product liability case.  But it’s not.  Medtronic has been successful in many courts throughout the country in having claims against it dismissed under the protection of federal preemption.  In short, Medtronic argues that the FDA forces it into a lengthy approval process for the product and once that approval has been granted, only the FDA can sanction or punish Medtronic for any wrongdoing.  According to Medtronic, even if they are directly responsible for injuries to users of their products, they should not be held responsible for any damages suffered by people like Lazaro Martinez. The crux of Medtronic’s argument is threefold:

 

1.  If there is not a state law claim that is identical to the federal regulations that govern Medtronic, than the claim is expressly preempted and should be dismissed;

2.  Even if the claim is not expressly preempted, if the claim is borne from the regulations promulgated by the FDA, then only the FDA can enforce such a claim and, as such, the claims in state court are impliedly preempted and should be dismissed;

3.  Even if the claims are not expressly or impliedly preempted, if the claim asserts that Medtronic’s actions likely would have resulted in the FDA doing something different (like punishing Medtronic or forcing Medtronic to strengthen its warnings to the public), than the claim is purely speculative and, thus, Plaintiff can never prove that any actions of Medtronic caused the Plaintiff’s damages.

 

Medtronic relies upon a litany of cases throughout the United States, each of which tends to have a different interpretation as to whether claims against Medtronic are preempted.

 

In our case, we argued many different points to address the deficiencies of Medtronic’s claims of preemption.

 

First, the United States Supreme Court was clear in its holding in Reigel v. U.S. that state law claims are not preempted if the state law claim parallels the federal law.  The question becomes, what is a “parallel claim?”  We assert, in our Complaint, that Medtronic violated several of the Codes of Federal Regulations which govern their marketing and promotion activities, and that these claims of violations of the Code of Federal Regulations directly parallel Florida’s common law duty of care.  Medtronic countered this argument by asserting that a parallel claim must be identical to the federal regulation.  In other words, to believe Medtronic’s assertion, one would have to believe that the only way to assert a state law cause of action against Medtronic would be an instance where the state has a law that says that you cannot violate the exact federal law that we allege Medtronic violated.  This is an argument that has been expressly rejected by several federal courts, and, logically speaking, it is an argument which makes no sense.

 

Second, we argued that several of the federal laws did not require us to speculate as to how the FDA would act in order to effectuate change.  Instead, some of the laws specifically state that Medtronic was required to submit additional information to the FDA before offering the Infuse for anything other than iits approved use.  Since Medtronic was promoting the Infuse for use in a way other than the expressly approved FDA use, Medtronic was first required to submit a supplemental application to the FDA to approve this new use.  Failing to do so was a violation of the federal regulations and also a breach of its duty of care under state law.

 

Third, we argued that the Infuse was not entitled to the protections of federal preemption because Infuse, alone, was not a medical device approved by the FDA.  Instead, the FDA approved a device with two distinct component parts: Infuse and LT-Cage.  LT-Cage is a cage that holds Infuse and the FDA only approved Infuse for use with the LT-Cage.  Promotion of Infuse without LT-Cage amounts to an unapproved use and, thus, we argued, there was no entitlement to any federal preemption.

 

The issues were briefed and the Court heard argument on March 1, 2013.  After hearing argument from both sides, the Court denied Medtronic’s Motion to Dismiss, allowing Lazaro Martinez’s case to proceed.

 

Considering the success that Medtronic has had throughout the United States in suppressing similar claims, this was a very big victory not only for Lazaro Martinez but for any other person that is injured by the unapproved and off label use of Infuse. The tides are shifting and there have been many more courts rejecting Medtronic’s arguments.  For victims that suffer the way Lazaro does, and many other people do, this shift means they can seek compensation for their injuries.

 

The Leto Law Firm is a defective products law firm and Miami traumatic brain injury law firm specializing in helping victims of negligence seek compensation for their injuries.

Justin C. Leto’s weekly appearance on nationally syndicated radio talk show, America Now with Andy Dean

 

 

Click here to listen to Justin Leto’s weekly appearance on America Now with Andy Dean

 

This week, Andy Dean and Justin Leto dedicated the entire segment to an egregious case of Elder Abuse, nursing home negligence and medical malpractice.  The usually conservative Andy Dean agreed that this case does not deserve the protections of the tort reform movement.

 

An elderly woman who was a resident of an assisted living facility in Bakersfield, California began to have difficulty breathing.  A nurse at the Glendale Gardens home called 9-1-1 to report that the resident was having trouble breathing.  As the call continued, it was obvious to the 9-1-1 operator that the elderly woman needed to be given CPR immediately.  The 9-1-1 operator asked the caller, who identified herself as a nurse, to begin administering CPR and, callously, the nurse refused.  Instead, the nurse told the operator that Glendale Gardens’ policies prohibited her from providing vital, life saving CPR to this dying woman.  The 9-1-1 operator became desperate, practically begging the nurse to perform CPR and when she continued to refuse, the operator asked that she find a stranger or a passer-by that would be willing to try and save this woman.  This agonizing and disturbing phone call went on for 7 long minutes, and when EMS finally arrived, the elderly woman was dead.

 

Now, the State of California is investigating whether a crime was committed.  Andy and Justin discussed this case in terms of the civil implications.  Justin explained that, as a nurse who works at the facility, the caller had a duty to perform CPR on this dying woman.  Not only was the decision to withhold CPR certain medical malpractice, it was likely gross negligence, careless indifference to the suffering of that woman, and could even amount to a crime.

 

Medical negligence does not just arise from a mistake in performing a medical service.  Medical malpractice can also arise from the omission of an act that would have avoided the injury or death.  In this case, this elderly woman lay dying on the ground and this caller, who identified herself as a nurse, just let her lie there and die.

 

Aside from the disgraceful facts of this case, Andy and Justin also briefly touched on medical malpractice reform and whether limitations on medical malpractice lawsuits is a good thing.  Andy maintained his stance that medical malpractice cases need to be limited, but he admitted that this was a case that required some type of exception.  What Andy, and most supporters of medical malpractice reform fail to recognize is that the grand idea of medical malpractice reform may sound good in theory, but cases like this one are not all that uncommon.  In the real world, there are good doctors and bad doctors.  And, like any profession, even good doctors make mistakes.  Medical malpractice reform allows people like this nurse to feel insulated from consequences.  If you know that you cannot be sued if you commit malpractice, you may not be as concerned with doing your job the right way.

 

The Leto Law Firm is a Florida personal injury firm specializing in Florida medical malpractice, Florida traumatic brain injury cases, and Florida wrongful death cases.

The Leto Law Firm files suit against the City of Miami for failing to turn over evidence of arresting officer’s history of brain injury

 

On February 21, 2012, The Leto Law Firm filed suit against the City of Miami, alleging a violation of Ioannis Kralievits’ civil and constitutional rights.  The lawsuit is the result of the City’s failure to produce material, exculpatory evidence about an officer that arrested Mr. Kralievits for DUI.  This purposeful and/or grossly negligent failure by the City to provide constitutionally required discovery in a criminal trial led to a wrongful conviction of Mr. Kralievits.  It was only years later, when a local news station unearthed the damning evidence against the arresting officer, that Mr. Kralievits’ conviction was vacated.  Unfortunately for Mr. Kralievits, he had already paid significant attorney’s fees in his defense and had served the entirety of his sentence.  Now, Mr. Kralievits seeks damages for the City’s violation of his constitutional ad civil rights.

 

It all started on June 10, 2011.  Mr. Kralievits was pulled over by Miami police Lieutenant Jeffrey Locke.  Suspecting that Mr. Kralievits was intoxicated, Lt. Locke conducted a series of roadside tests.  Based upon these roadside tests, Lt. Locke arrested Mr. Kralievits for DUI.  The case proceeded to trial.  The only witness that testified against Mr. Kralievits was Lt. Locke. Based upon Lt. Locke’s testimony, the jury found Mr. Kralievits guilty of DUI.

 

After serving his full sentence, a WSVN investigative report  broke news that revealed Lt. Locke had been suffering from a traumatic brain injury and subsequent permanent cognitive brain disability following two  on-the job auto accidents in 1996 and 1997.  The WSVN report found that Lt. Locke sued the City in 2003 for violations of the Americans with Disabilities Act when they denied him accommodations for the Lieutenant’s exam.  Documents from that lawsuit revealed that Lt. Locke had been involved in two on-duty car accidents in 1996 and 1997, which left him with a 10% permanent disability – a disability that affected his “thinking, sleeping, speaking, memory, learning and reading” and his ability to handle stress.  Despite knowing about this permanent cognitive disability which affected the very faculties necessary to properly and adequately perform the responsibilities of a police officer, the City allowed Lt. Locke to continue to patrol the streets of Miami and make thousands of arrests over a twelve-year period.

 

When Mr. Kralievits learned that the City and State never provided this information regarding Lt. Locke’s cognitive deficits prior to trial, he hired criminal defense firm Hirschhorn and Bieber, P.A. to have his conviction vacated for the violation of his right to receive such material exculpatory evidence under the Fourteenth Amendment and Brady v. Maryland, 373 U.S. 83 (1963).  On January 4, 2013, Mr. Kralievits’ conviction and sentence were thrown out.  His criminal attorneys argued that the City and State had a duty and obligation to provide this information about Lt. Locke prior to trial.  Why was this information so important?  Because clearly his attorneys could have convinced the jury that Lt. Locke was unable to effectively determine whether Mr. Kralievits was intoxicated based upon his traumatic and permanent brain injury.  The decision to withhold this information amounted to a clear violation of Mr. Kralievits’ constitutional rights.

 

As a result of the City’s misconduct, Mr. Kralievits has filed suit in federal court.  The lawsuit alleges that the City of Miami knew, as early as 1998, that Lt. Locke suffered from this permanent cognitive brain disability, but purposefully withheld this information from the State Attorney’s Office so it would not be turned over to criminal defendants arrested by Lt. Locke.   As a result of this conduct by the City, Mr. Kralievits’ constitutional right to due process under the Fourteenth Amendment to the United States Constitution was violated.  The lawsuit seeks damages from the City for the violation of Mr. Kralievits’ civil rights.

 

WSVN reported on Mr. Kralievits’ case, which can be found here: http://www.wsvn.com/features/articles/carmelcase/MI97085/.  The original report by WSVN can be found here: http://www.wsvn.com/features/articles/carmelcase/MI96153/.

 

The Leto Law Firm is a Miami personal injury law firm specializing in representing victims of civil rights violations, medical malpractice, products liability, traumatic brain injury, auto accidents and business disputes.

Justin C. Leto’s weekly appearance on nationally syndicated radio talk show America Now with Andy Dean

 

 

America Now with Andy Dean–Feb 27, 2013

 

This week, Justin Leto and Andy Dean discussed several interesting legal topics, including the following:

 

1.  Trayvon Martin–one year later.   It has already been one year since the shooting death of Trayvon Martin.  Initially, there was a great deal of public outrage over the shooting and there were many allegations that George Zimmerman is a racist shot and killed Trayvon Martin because of the color of his skin.  Certainly, there is evidence which could suggest that Zimmerman profiled Martin and that the shooting was racially motivated, but there is also evidence that Zimmerman’s actions amount to self defense.  At the heart of the case is Florida’s controversial “stand your ground” law.  The law allows a person to use lethal and deadly force if the person subjectively believes that their life is in danger.  So, if Zimmerman can prove that Trayvon Martin was attacking him in such a way that he feared for his life, the shooting will be considered justified.

 

One of the biggest problems that Zimmerman has is the recorded 9-1-1 calls which specifically direct him to stand down and wait for the police.  His decision to be vigilant and ignore the directives of the 9-1-1 operator could prove problematic for his defense.

 

It will be a very interesting case to watch.  No matter which way the jury decides, the most important thing to remember is that the jury’s decisions should be respected.

 

2.  The trial of cannibal cop in New York.  This case presents an interesting question of what is criminal and what is purely fantasy.  A former NYC police officer is accused of plotting to murder, cook, and then eat his wife.  His wife discovered this alleged plan when she was going through his computer.  The legal question becomes whether this former cop was actually plotting to commit these heinous and unthinkable crimes, or whether he was on the Internet fantasizing. He had no history of violence, has never harmed his wife and there appears to be no evidence that he even threatened her.  The prosecution is equating his Internet ramblings to that of a “threat.”  The problem is that he never directed these alleged threats to her.  She only learned about them when she went and looked on his computer.

 

Because the facts are so disgusting, i predict the jury will convict this man.  However, i also predict that on appeal, the appellate court will throw out the conviction because there is insufficient evidence to charge this man with an actual crime.

 

3.  Surveillance case from the Supreme Court.  The U.S. Supreme Court was asked to decide whether the Foreign Intelligence Surveillance Act (FISA) improperly permits the U.S. government to listen in on people’s telephone and electronic conversations in their attempts to thwart terrorist attacks.  Instead of deciding the merits of whether the statute, itself, is unconstitutional, the U.S. Supreme Court threw the case out for lack of “standing.”

 

In order to bring a case in front of any court, you must be an injured or aggrieved party.  You are not permitted to bring a case on behalf of someone else (unless you are their parent or legal guardian).  This is referred to as legal standing to bring a lawsuit.  In this case, the Supreme Court held that the journalists that fear that their privacy will be unjustly invaded by FISA lacked standing to bring the lawsuit.  The reason the Court decided this was because the journalists could only speculate that they would be monitored and could not prove that they were actually being monitored by the government.

 

In my opinion, this is a wholly unfair opinion.  The reason is that FISA is specifically designed to be a secret.  In order to conduct the secret surveillance, the government gets authority from a secret court.  So, there is no one that will ever be able to prove that they have standing because the very essence of the law is to prevent those under surveillance from knowing they are under surveillance.  My biggest issue with this case is that all laws should be susceptible to checks and balances.  In this case, FISA will never be subject to a check from the  courts as to whether it is a constitutional exercise of power.  The fact that the Court has deemed this law to be essentially unchallengeable creates a major constitutional problem which i hope will be addressed.

 

The Leto Law Firm is a Miami medical malpractice and Miami personal injury law firm that represents victims of negligence.  We specialize is traumatic brain injury, products liability, wrongful death and appeals.