Articles Posted in Wrongful Death

 No Swimming.001During the past week, I have lectured and written on the issue of negligence, child injuries, and the unfortunate and tragic incident that took place at the Walt Disney World Resort – Orlando where a 2 year old child was attacked and ultimately drowned by an alligator.  It has been reported that there were “No Swimming” signs posted in or near the area.  Some people, who I have spoken to, believe that this fact should then be a bar to recovery if there is a claim or case pursued by the parents of the child who died.  Florida is a state that has adopted a Comparative Fault system for the pursuit and trial of personal injury cases.  In other words, even if an injury victim is comparatively or partially at fault, there can still be a case pursued on behalf of the injury victim and / or the injury victim’s family.   It should also be noted that there are some special laws in place in Florida when a child is injured.  For instance, in the State of Florida, a child under the age of 6 years old cannot be held liable, responsible, or partially at fault as a matter of law.  As such, a 2 year old cannot be comparatively at fault as a matter of law even though there were “No Swimming” signs that were posted.  However, a parent, as a third party of sorts, can be held liable, responsible, or partially at fault if the parent’s actions or inactions contributed in whole or part to the situation or incident taking place.
As for the Disney alligator attack, it has been reported that there were “No Swimming” signs posted.  The family of the 2 year old were from Nebraska and may not have been aware of the presence of alligators throughout the State of Florida in its rivers, lakes, canals, ponds, and lagoons.  Furthermore, the sign read “No Swimming”.   The reason for the posting of the sign could have included any of the following:
*There was no regular lifeguard in the area.

Alligator Warning.001
By David Wolf, Child Injury Lawyer
The State of Florida is a tourist destination for millions of visitors every year. In Florida, we have beaches, resorts, theme parks, water parks, lakes, rivers, ponds, lagoons, and a number of alligators.  Certainly, personal injuries caused by an automobile accident are far more common than personal injuries caused by an alligator attack.  As such, there are literally thousands of appellate cases and rulings associated with personal injuries and automobile accidents.  On the other hand, the laws and appellate cases associated with alligator attacks are quite sparse.  A recent incident at Walt Disney World Orlando made national headline news.  Unfortunately, it focused media attention in the State of Florida and Orlando for a tragedy rather than any kind of celebration.  More importantly and more tragically, a Nebraska family, who innocently was just trying to enjoy the “Magic” of Walt Disney World Orlando, will be heading home with one less family member who was attacked and dragged away by an alligator at the Seven Seas Lagoon.
In Palumbo v. State Game & Fresh Water Fish Commission, 487 So.2d 352 (Fla. 1st D.C.A. 1986), a personal injury victim (Christopher Palumbo) sought the review of a trial court order granting summary judgment for the defendant – the State of Florida. In other words, the trial court threw out the personal injury victim’s case.  The trial court ruled that the evidence, when considered in the light most favorable to the injury victim, was insufficient to support a claim or case for negligence against the State of Florida.  Mr. Palumbo was injured at the University of Florida – Lake Wauberg Recreational Park. He noticed that a boat had capsized.  Mr Palumbo decided to swim out to the boat to help the boaters with a repair.  As he was swimming towards the boat, Mr. Palumbo was attacked by an alligator and he was injured.   Mr. Palumbo later filed a lawsuit against the State of Florida Game and Fresh Water Commission.  The trial court threw out the case and determined that the State of Florida was not required to fence and was not required to otherwise keep alligators out of the area.  The trial court further noted that Mr. Palumbo disregarded warning signs that were posted at the recreational park / facility.  The First District Court of Appeal affirmed the rulings of the trial court.  The First District Court of Appeal noted that the State of Florida did not have a duty to guard the visitor against harm from an alligator unless the alligator was reduced to the possession of the State of Florida or the alligator was not indigenous to the locality.  The First District Court of Appeal further noted that Mr. Palumbo ignored clear warning signs at the facility which, in turn, was the sole proximate cause of his personal injuries.  In addition to “No Swimming” signs posted at the recreational park, there were a variety of signs warning of and referencing the presence of alligators in the area including one sign that read “Unlawful to Feed Alligators” and another sign that read “Don’t Feed or Molest . . . “ with a large graphic of an alligator on it.  In the Palumbo case, there were clear warning signs of alligators in the area which appeared to be an important part of the rulings of the trial court and the appellate court.

orlando-vector-doodle_GJ7pbFLO_LWalt Disney World Orlando advertises itself as one of the “Happiest Places on Earth”.  For millions of visitors every year, it is quite a happy and joyful place filled with rides, cartoon characters, and adventures; however, for many children and their families, Walt Disney World Orlando happens to be a placed filled with horrific memories, significant personal injuries, tragedy, and even the untimely and wrongful death of a visitor from children to teens to adults. Certainly, Walt Disney World Orlando welcomes children and families to its many theme parks, attractions, resorts, and hotels.  As such, it is important that Walt Disney World Orlando provide a safe and well maintained environment with the full knowledge that every day families and young children will be on the premises.   This duty extends to all areas of the park and resorts including but not limited to the attractions, rides, restaurants, hotels, lobby areas, swimming pool areas, recreation areas, and yes, the other aquatic areas whether man-made or natural in the form of lakes, ponds, canals, lagoons, and other areas.   It is incumbent upon Walt Disney World Orlando to patrol the areas, maintain the areas, clean up the areas, and post prominent signage about potential dangers that may include those related to electrical and wildlife.  If an area has the potential for significant injury or death, this particular area should either be closed off, modified, and / or posted with prominent signage.

A recent incident at Walt Disney World Orlando left a family and community in shock when an alligator from the Seven Seas Lagoon lunged out of the water and grabbed a 2 year old who was standing in or near the water with his father.  The boy, who was vacationing with his family from Nebraska, was attacked by the alligator.  While the father tried to do his best to stop the attack and save his son, he was unable to do so.  It was reported that there were signs in the area that advised visitors about the designation of a “No Swimming” area.  There may not have been any warnings or signage about the presence of dangerous wildlife including but not limited to alligators.  Certainly, this incident was and is a complete and utter nightmare for the family visiting the “Magic Kingdom” from Nebraska.  The incident was immediately reported to Walt Disney World Orlando officials, resort staff and management, local law enforcement, and Florida Wildlife Law Enforcement officers.  You can read more about this tragedy at KETV Omaha, Nebraska – Alligator Attacks and Drags 2 Year Old Nebraska Boy at Walt Disney World Orland Resort – Seven Seas Lagoon. 

The injury and / or wrongful of a child is a harrowing experience.  Certainly, as parents, we work day and night to provide for our children’s safety, health, and welfare.  When a child is injured or when a child dies as a result of the negligence of another person, business entity, or government entity, a parent is faced with a number of life, medical, and legal challenges. Certainly, it is important that these trying times to be supported by family members, friends, community, medical professionals, clergy, community, and, yes, when necessary an experienced and caring Florida Child Injury Lawyer.  Big businesses are supported day / night by in-house and retained legal counsel essentially on a 24 / 7 basis. There are risk management and insurance risk management adjuster in place to advise and protect the companies.  As such, injury victims and their families also deserve legal representation to make that legal rights are protected, enforced, and preserved as needed especially in the aftermath of significant personal injuries and /or wrongful death.

Interstate 95In the State of Florida, just one crash can change the lives of many people and families.  This is especially true when there are multiple deaths or multiple claimants involved with a traffic crash. There are many issues and challenges to a case involving one injured person or party.  The issues are compounded when there are multiple victims, injuries, and claims.
For most personal injury claims or cases, the amount and type of automobile insurance often come into play and require a close evaluation and study.   It is important for a personal injury victim and / or the family of the personal injury victim to retain the services of an experienced Florida Personal Injury Attorney to determine the rights of the victim, the rights of the family, and the recommended courses of action.  It should be noted that there is a big difference between the legal rights of the victim and the practical options or practical resolution of a case.  For instance, let’s assume that a person suffers a fractured leg requiring surgery and an extended hospitalization.  Let’s further assume that the reasonable value for such a case is $450,000.  The at-fault driver had an automobile insurance policy with a bodily injury policy limit of $50,000.  As such, the total amount of liability insurance in place for this particular claim was $50,000.  Under these facts and circumstances, the fair value of the case is $450,000; however the practical resolution of the case may end up being the $50,000 policy limits.  Again, there is a difference between the legal rights of the personal injury victim and the practical resolution of the case.
On Interstate 95 near Titusville, Florida, there was a recent fatal crash that was reported by news and media outlets.  The crash ended the lives of three young girls who were ejected from the vehicle.  It was reported that there were 11 people occupying the vehicle that was manufactured with a maximum capacity of 8 passengers / occupants.  A tire problem caused the Dodge Durrango SUV to go off off the road and then the SUV flipped several times.  Certainly, this tragic crash will have a ripple effect through the family, neighborhood, and community.   

Swimming Pool - Drowning and Personal Injuries
In Florida, swimming, boating, and aquatic activities are essentially year round activities.  This is especially true during the spring and summer seasons.   According to the Center for Disease Control and Prevention, 10 people die every day from drowning related incidents. Children under the age of 14 account for 2 out of the 10 deaths.  It is reported that drowning is the 5th leading cause of unintentional deaths in the United States.

Despite these risks and disturbing statistics, drowning incidents continue and unfortunately will continue through the rest of the 2016 year including the summer season.  Can a case or claim be pursued on behalf of an injured child OR on behalf of the parents of a child who dies as a result of a drowning incident?  Like many legal questions, it depends on the facts and circumstances.  It also depends on the practicalities associated with liability insurance coverage and other matters.
Like other personal injury cases in the State of Florida, there are four essential elements associated with a drowning case:

Pedestrian Crossing Sign - Child InjuryIn the State of Florida, the law classifies a motor vehicle as a dangerous instrumentality.  As such, the owner of a vehicle is liable for the negligent driving of the driver under the Dangerous Instrumentality Doctrine.  This same set of laws makes a company liable for the driving of an employee given permission to drive a company vehicle.  In the State of Florida and other States, there is a danger that exists in every community.  Negligent driving in the form of distracted driving leads to far too many crashes and accidents which cause injuries to children and even the wrongful death of children.  Distracted driving presents itself in different forms forms including but not limited to mobile phone use, texting, e-mailing, reading e-mails or texts, eating, drinking, smoking, dropping items, picking up items, etc. . . . Any action that takes away from the job at hand – driving the motor vehicle – can be classified as distracted driving.

In Hernando County, Florida, it was recently reported that a child pedestrian died when the child was struck by a motor vehicle.  It was reported that the driver of a Jaguar got distracted after dropping a cigarette while operating the motor vehicle.  Since a death resulted form a motor vehicle type of accident, the Florida Highway Patrol will complete a full investigation and later release a report as to its findings including the estimated speed of the vehicle, distance measurements, fault, and preventability of the incident.

The death of a child due to the negligence of others is a tragedy.  A young life ended way too early from an event or incident that was preventable.  Certainly, accidents happen.  However, it is truly a shame when a child dies from an automobile, bicycle, or pedestrian accident through no fault of the child or her parents.  As parents, we work tirelessly through each day with the goals of providing for our children, of protecting for our children, and, yes, of keeping our children safe.

Red Bicycle.001In Florida, there is a common risk or danger in most communities. Children ride bicycles in most communities.  This is the common risk and danger.  It is well known or should be well known that children lack good safety awareness.  Furthermore, the motor skills of small children are still developing when the children especially when the children are in pre-school and elementary school.  Because of the risks of bicycle riding, it is important for all motorist to slow down any time that a driver is near a child riding a bicycle.  Children enjoy riding bicycles in neighborhoods, parking lots, driveways and elsewhere.
When a child is hit by a vehicle while riding a bicycle, the personal injuries can range from minor ones to significant personal injuries including the wrongful death of a child.  A child and bicycle are no match for the steel and weight of the typical motor vehicle.  When you combine the size differential with any amount of speed, the situation can easily escalate to one with horrific and catastrophic personal injuries.  
It should be noted that Florida is a comparative fault state.  As such, for a particular accident or incident, there can be a percentage distribution of fault attributed to the bicycle rider and driver.  It should also be noted that children under a certain age cannot be held comparatively at fault as a matter of law.  In the State of Florida, a child under the age of 6 years old cannot be held comparatively at fault; however, a parent or supervisor of the child may be help proportionally at fault for the lack of supervision of the child. 

mle_1935a-022614-calGun ownership is protected by the Second Amendment.  Certainly, there is a strong history and constitutional right to gun ownership in Florida and the United States.  With this right, there are also the responsibility of sensible and reasonable ownership and safety especially when children are present in a home or a location where guns are owned, maintained, and stored.   A homeowner / gun owner can be held liable for leaving a gun in a place or location that is accessible to a young child.   It is well known that children especially toddlers, preschoolers, and elementary school children are curious and do not always recognize the danger of touching or handling a gun.  Civil or legal responsibility for injuries or the death of a young child does not in any way abrogate or curtail gun ownership or rights.  Like driving an automobile or running an amusement park right, there must be responsible maintenance and operation surrounding the potentially dangerous activity.

An Arkansas woman was recently charged after her six year old nephew shot and killed himself with a gun she owned. The young boy was waiting in a car while the woman was in a nearby residence. The accidental death lead to the woman being charged with manslaughter. She was charged criminally because she was  alleged to be negligent or careless for keeping the gun in a place accessible to the young boy. With such a tragic event, this particular incident and others are wake up calls for all gun owners and homeowners to be responsible any time that guns and children are present in the same location.

Gun related injuries can happen to a child of any age. In fact, toddlers, aged two or three, are strong enough to pull the trigger of a loaded gun. Often, these toddlers are too young to understand what a gun is and the danger that it poses. Coupled with the fact that one in three children live in a home with a gun, this is all the more reason to practice proper gun safety.

School Bus Stop Sign.001In Florida and other states, school bus stop areas are busy during the morning and afternoon areas.   Some school bus stops are well marked with signage, flashing lights, and crosswalks while other bus stops are not as well set up or equippped.  If a driver knows of a school bus stop by signage, lights, and / or by a general knowledge of the area, it is important for drivers to slow down and be on the watch for children at the school bus stop area or walking to or walking away from the school bus stop area.

Unfortunately and tragically, children continue to suffer injuries and even die as a result of pedestrian / automobile accident incidents in and around school bus stop areas.  Florida has adopted a number of legal concepts that may apply to personal injuries suffered by a child pedestrian in or near school bus stop areas.  A child under the age of 6 years old cannot be held negligent for his or her own actions as a matter of law.  For children 6 years of age and older, the conduct of the child is evaluated / considered based on the age and maturity of the child as well as the facts and circumstances surrounding the pedestrian / automobile accidents.  In addition, Florida has comparative fault when evaluating the liability or responsibility for pedestrian and automobile accidents.  In other words, there may be negligence on behalf of the child 6 or older which does not prevent the right to pursue a cause of action for injuries or death to the child. For instance, if is determined that a child is 25 % at fault for an accident, then the child and / or the family of the child would be entitled to recover 75 % of the damages associated with the injuries / death.  The negligence of the child pedestrian is not a bar to recovery in the State of Florida.

A tragedy was recently reported in Palm Coast (Flagler County), Florida.  New 4 Jax and other media outlets reported that Kymora Christian, a 7 year old girl, died while walking to her Palm Coast school bus stop for Wadsworth Elementary School. It was reported that there was no crosswalk in the area.  In Flagler County and other Florida counties, some school bus stops have crosswalks and some do not.  This makes it even more important for drivers in and near the school bus stop area to slow down especially during drop off and pick up times.  The Florida Highway Patrol responded to the scene of the accident that involved a SUV (Sport Utility Vehicle).  Since a death resulted from a vehicular accident in the State of Florida, a full investigation as to speed, preventability, and other factors will be conducted and reported by the Florida Highway Patrol. You can read more about this tragic incident at Florida Highway Patrol – 7 Year Old Girl Killed at School Bus Stop – Flagler County – Palm Coast, Florida.

Boat Wheel - Personal InjuryIn States like Florida, California, Georgia, Hawaii, and Texas among others, boating is a year round activity.  The warm weather and abundance of waterways and surrounding lakes, rivers, ponds, canals, and oceans provide a welcoming enviornment for those seeking to boat, fish, swim, water ski, and otherwise enjoy the day.   While boating can be great fun, it can also be dangerous for teens and children especially those who are not properly supervised and / or do not understand or follow basic safety measures.   There are just too many risks associated with boating to hand over the full responsibility to a teen or child.  Adult supervision is key to preventing injuries including those related to drowning or near drowning incidents.  This is especially true when there is bad weather, rough waters, or other conditions that lead to a capsizing incident.   It takes a certainly maturity, strength, and experience to properly react when there is an emergency.  Because of this, it makes it even more important to have adult supervision during any boating activity.  A teen or child may be a champion boater or swimmer.  Even for these talented and strong individuals, a U.S. Coast Guard approved life jacket should be worn at all times during boating related activities.  It may not be cool or comfortable to wear a life jacket but this one basic safety precaution can and does save lives.
Even with adult supervision, education is key to prevent injuries and drowning incidents for teens and children.  The captain / owner of the boat should carefully explain the rules and safety precautions to be followed while on the boat.   If a child is going to regularly be a guest on a boat, it may make sense for the child to attend a boating course. Of course, being able to swim is important as well.  If a child or teen is going out on a boat, it is better if the child or teen can swim.  If not, extra care should be taken to the extent possible to watch over and supervise the child while engaged in boating related activities.
If a child or teen is injured or drowns during boating related activities, is the boat owner liable for such injuries or the death of the child?  Well, like most legal issues, it will depend on the particular facts and circumstances of the incident.  Let’s take an example.   Let’s say a 12 year old friend of the boat owner’s son goes out on the boat for a day of fishing.   The boat owner allows his son to take out the boat.  There is no adult supervision in place.   The boat owner does not contact the parents of the 12 year old for permission to have the child out on the boat.  The boat is not equipped with life jackets.  The two boys go out for a leisurely day of fishing.   Rough weather ended up capsizing the small boat and the 12 year old drowned.   The boat owner’s son was later rescued by the Coast Guard.  Had the 12 year old been wearing a life jacket, the drowning would most likely have been avoided.  Under these facts, there can be a claim or case on behalf of the estate of the deceased child due to the negligence of the boat owner. It should be noted that each case or incident should be evaluated on its own facts and merits.  Let’s take another example.  A 17 year old boy is invited as a guest on a neighbor’s boat with the permission of his parents.   While on the boat, the 17 year old got drunk with alcohol he brought with him from his own house.  While horsing around on the boat, the 17 year old slips off the boat.  Just prior to falling off the boat, he was wearing a life jacket but decided it would be cooler to go without the life jacket.  The boat owner was on the boat at the time and otherwise providing reasonable supervision of the 17 year old and the other teens on the boat.  Under this fact pattern, it may be difficult to pursue a case on the theory that the boat owner was negligent in some manner.  The 17 year old hid the alcohol by pouring it into a soda bottle.  Furthermore, the 17 year old disobeyed clear instructions to keep his life jacket on and to otherwise behalf while on the boat.  Of course, more facts will need to be determined to better analyze the potential liability (if any) of a case or claim of this nature. It should be noted that in the State of Florida – a child under the age of 6 years old cannot be held to be comparatively at fault in any manner.  As such, any child 6 years of age or older can be held comparatively at fault.  Seeing that the actions of a 17 year old are being considered, it is quite possible that 100 % or nearly 100 % of fault may be assessed against the 17 year old.