Important New Decisions May Impact Workers’ Compensation Cases in Florida

New Decisions May Impact Workers Compensation Cases in Florida

A confluence of factors, including a rise in distracted driving incidents, caused pedestrian fatalities to increase 10% in the first two quarters of 2015. Is the sudden rise a one-off spike or the beginning of a new trend?

The report by the Governors Highway Safety Association also opined that unusually mild weather, relatively low gas prices, and an improving economy put more drivers behind the wheel, and those motorists covered more miles than before. “This is really sobering news,” lamented study co-author Richard Retting. This data is preliminary and based on the first six months of the year. If it holds true, and it probably will, because the second half of the year is normally warmer than the first half, 2015 would be the biggest increase in pedestrian-auto fatalities since 1975. Pedestrian fatalities are already on the upswing. They have increased almost every year since 2005, despite high-profile efforts in many cities to reduce the number of fatal pedestrian-auto collisions.

At 1.35 per 100,000, Florida leads the country in per capita pedestrian death rates.

Pedestrian Injuries

The death and serious injury rate is considerably higher in pedestrian-auto, bicycle-auto, and motorcycle-auto collisions because these victims are completely exposed to danger at the moment of collision, whereas vehicle occupants are inside steel and glass cocoons and further protected by multiple restraint layers. Some common injuries include:

  • Head Injuries: These victims are nearly always thrown, and when they land, they often suffer brain injuries either because of head trauma or because of the impact’s jarring motion.
  • Blood Loss: In addition to external trauma wounds, victims often suffer internal injuries. Both these types of wounds bleed a lot, and it is often several minutes or hours before patients are completely stabilized.
  • Broken Bones: Due to the nature of the injuries, the broken bones nearly always require metal plates, screws, or pins during corrective surgery, which often means intense postoperative pain, an additional procedure to remove the metal, and extended physical therapy.

Speed is often what makes pedestrian-auto crash injuries so severe. The serious injury risk is only 25% at speeds of 23mph or lower, and it triples when vehicle speeds exceed 39mph; the death rate is five times higher between these two speeds.

Distracted Driving

As the GSA mentioned, distracted driving is a significant issue as well. According to one estimate, one in four crashes are caused by distracted driving. Cellphone use, which has been growing despite laws designed to reduce it, is the primary culprit. These devices combine all three types of distracted driving:

  • Cognitive (taking one’s mind off driving),
  • Visual (taking one’s eyes off the road), and
  • Manual (taking at least one hand off the wheel).

Truth be told, most drivers cannot travel more than one or two blocks without adjusting the radio, talking with passengers, adjusting the climate control, drinking a beverage, or doing many other things other than driving. All these non-driving activities constitute distraction, and it is largely up to a jury to determine when or if such habits breach the duty of reasonable care.

Damages Available

Normally, Florida accident victims must suffer permanent injuries to obtain compensation for their noneconomic damages. But pedestrian-auto crashes are exempt from the no-fault law, so victims are automatically entitled to compensation for their:

  • Economic damages, including lost wages, medical bills, medical device costs, prescription drugs, and other out-of-pocket expenses, as well as
  • Noneconomic damages, including pain and suffering, loss of consortium (companionship), emotional distress, and loss of enjoyment in life.

Additional punitive damages are also available, if the victim presents clear and convincing evidence that the tortfeasor (negligent driver) intentionally disregarded the safety and/or property of other people on the road.

Legal Issues

Despite the implications made in advertising campaigns, insurance companies often do anything possible to reduce compensation to victims. A common tool, especially in pedestrian-auto crashes, is the sudden emergency defense. Most of these incidents occur outside crosswalks, and the insurance company lawyers love to say that the victim “darted out into traffic” and the tortfeasor could not possibly avoid the collision.

However, pedestrians crossing against the light, stalled cars, road potholes, and other situations are rather expected, because these things happen frequently. Therefore, they are not “sudden emergencies” in the legal sense of the phrase. Instead, hood fly-ups and tire blow-outs are sudden emergencies because they are completely unexpected.

At best, crossing against the light and other items may constitute contributory negligence. Florida is a pure comparative fault state that divides damages strictly according to the amount of fault, so if the defendant and plaintiff were each 50% at fault, the plaintiff would receive 50% of his or her damages.

For maximum compensation in personal injury cases, contact Barnett, Lerner, Karsen & Frankel.