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4th of July Travel Tips

American flag in beach sandAccording to predictions from the AAA, more Americans will travel this 4th of July weekend than any other Independence Day holiday on record.  One reason why many more will be hitting the road this weekend is because gas prices continue to remain relatively low.

Therefore, the low gas prices will allow travelers to make last-minute holiday plans for the upcoming weekend.

Unfortunately, with this increased traffic will come unexpected delays, closures and even many accidents throughout the weekend due to overcrowding and high traffic volume.  Indeed, road accidents — not terrorism, plane crashes or crime — are the No. 1 killer of healthy Americans traveling abroad, a USA TODAY analysis revealed.

With that said, if you’re hitting the road, particularly during this busy holiday weekend, it is important that you abide by the following safety tips to avoid a car accident:

  • Always follow the law and drive within the legal speed limit
  • Take alternative routes to avoid congested areas
  • Wear your safety seat belt at all times
  • Do not drink and drive
  • Do not text or talk on the phone while driving
  • Watch or listen to traffic reports before getting in the car

What Should You Do If You Are Involved in a Car Accident.

Being involved in a car accident is a nerve racking experience. Most car accident victims are often left disoriented and badly bruised and injured. Consequently, too often car accident victims do not take the time to secure important documents, and gather critical information.

If you are involved in a car accident in Miami, Miami Beach, Keys, South Florida and beyond, these are but a few tips that may help you:

– Seek immediate medical attention.
– Call the authorities to report the accident.
– Obtain the names and addresses of the driver and passenger of the other vehicle or vehicles.
– Obtain the name and address of any and all witnesses to the accident.

In addition, you should also do the following:

– Obtain all insurance information, including the name of the insurance company and policy number, of the other driver or drivers.
– Document how and where the accident occurred.
– Photograph the property damage to all vehicles and the accident scene.



Florida has Long Recognized the Rear-End Collision Rule

Florida has long recognized the rear-end collision rule.  Its origins date back to 1959 when the Florida Supreme Court adopted the rule in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959.)

Two cars crashed. Close up image

The rear end collision rule provides that when the driver of the rear vehicle collides with the back of the lead vehicle the driver of the rear vehicle is presumed negligent.  Id.  The purpose of the well-recognized rear-end collision rule was founded on the need to lessen the Plaintiff’s burden to prove two of the requisite elements of a negligence claim, i.e. (1) breach of the duty of care and (2) causation.  Clampitt vs. D.J. Spencer Sales, 786 So. 2d 570 (Fla. 2001); Eppler vs. Tarmac Am. Inc.,752 So.2d 592 (Fla. 2000).  Therefore, Florida’s rear end collision rule provides a presumption that the driver of the rear vehicle was negligent and that the negligence was the sole cause of the accident.

Of course, Florida’s rear end collision is a rebuttable presumption.  That rebuttable presumption often came into play when evidence was presented that demonstrated that the lead vehicle made (1) an abrupt stop, (2) experienced mechanical failure such as a malfunctioning brake light, or (3) was engaged in some other illegality such as an illegal or sudden stop.

The Florida Supreme Court in Cevallos v. Rideout addressed Florida’s rear end collision rule by addressing several conflicting rulings from different Florida appellate courts.  In Cevallos, the Florida Supreme Court concluded that a “presumption of negligence that attaches to a rear driver in a rear-end motor vehicle collision can be rebutted or avoided by the production of evidence from which a jury could find negligence on the part of the front driver that contributed to bring about the injury-production collision.”  The Court went on to note that the presumption is less a legal standard and more a method of helping resolve a dispute where there is not enough evidence to demonstrate which driver was at fault.

In Cevallos, Florida’s Supreme Court noted that the “rear-end presumption is an evidentiary tool to facilitate a particular type of negligence case where there is an absence of a jury question on the issue of comparative fault.”

Court Rules that there is No Right to Privacy on Facebook or other Social Media Sites

social mediaAs the popularity of social networking sites, like Facebook, continues to surge, civil litigants are increasingly demanding the disclosure of those communications.  Opponents of broad social networking discovery have asserted several arguments, such as relevance, and privacy, as to why that social media information should be protected from discovery.  This battle is taking place in courts across the country.

Recently, the Fourth District Court of Appeal ruled that there is no right to privacy on Facebook or other social media sites, and that such requests are in fact very relevant to such cases.  In Nucci v. Target, the Plaintiff had filed a personal injury action.  The Plaintiff suffered injuries as a result of a slip and fall incident that occurred at Target.  The Plaintiff claims that Target caused her fall, and, as a result, is seeking compensation, from Target, for her injuries, pain and suffering, medical expenses, lost earnings and other damages.

Target is defending the case.  As part of their defense, Target scheduled the Plaintiff’s deposition.  Two days before Target took the Plaintiff’s deposition, Target’s attorneys looked at the Plaintiff’s Facebook page.  Target asserts that at that time the Plaintiff’s Facebook page displayed 1,285 photos. Thereafter, however, the number of photos on the Plaintiff’s Facebook page dropped to 1,249 photos.  As a result, Target sought judicial intervention to view the Plaintiff’s complete Facebook profile and moved to compel the Plaintiff to preserve all of her Facebook photos.

The appellate court ruled in Target’s favor.  In so doing, the appellate court noted that this “case stands at the intersection of a litigant’s privacy interests in social media postings and the broad discovery allowed in Florida in a civil case.”

To curtail the broad scope of discovery allowed in civil litigation, the Plaintiff asserted a right of privacy. However, the appellate court concluded that the relevance of the photographs overwhelms the Plaintiff’s minimal privacy interest in them.  The court even noted that the photos are discoverable even if the social media user attempted to deem the photos “private” on her social media settings.  In so doing, the court noted that information posted on sites like Facebook may be copied and disseminated by another that the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.

In sum, the appellate concluded that users of Facebook and other social media sites simply have no reasonable expectation of privacy during the course of litigation.  That means that the defending party will likely gain access to all of the information posted on your social media sites.

This case serves as a cautionary tale to all users of social media sites.  Be careful what you post.  And if you plan on filing a lawsuit, be prepared to have the other side go through all of your social media sites for information that can aid them in their defense .  So be careful what you post.  With that said, please do not hesitate to contact us should you wish to discuss this case in greater detail, or if you have been injured in an accident and wish to discuss your legal rights.

Critical Mass or Mess?

critical massCritical mass or critical mess?  The Critical Mass bicycle ride has become a very popular event in Miami.  Cyclists gather on the last Friday of every month to ride bike through the city.  It has become so popular that the Miami-Dade police department is calling out its organizers to help form some guidelines to help keep bicyclists safe and motorists happy. The problem with this plea from Miami-Dade police lies in actually finding who is responsible for these rides. Miami’s police Chief Manuel Orosa has called out a blogger who he believes to be behind the whole event. The blogger, however, contends that he has nothing to do with organizing the event as all he does is announce the location and route for the event.

Many are fearful that a road raged motorist will one day harm one of the bicyclists. The police are also concerned with the amount of unruly cyclists that has been attending these events. There have been reports that some cyclists are getting intoxicated, acting unruly and even confronting motorists on a few occasions.

Many of the major bicycling groups in Miami welcome the idea of police involvement as a means to try and ensure safety during the event. The event usually tallies about 12 miles while riding through various parts of Miami, including Downtown, Coral Gables and Little Havana. Bicyclists seem to also believe that the event could use the help of police to ensure safety and make it safer for all parties involved.

It seems as though all parties involved want the same thing and that is for the event to continue to go on, but in a more efficient and safer manner. Bicyclists hope that the police will join in on the ride and help to make things smoother while also deterring unruly riders from getting involved in critical mass.

The problem concerning both motorists and cyclists is that they may be distracted, or angered, while operating their cars or riding their bikes.  It is not uncommon for drivers to become increasingly frustrated with the thousands of bike riders holding up traffic.  This may result in injury or property damage.   (more…)

Many of the Nation’s Beaches Remain Unsafe to Swim In

Planning on going to the beach this summer? You might want to think again as many of the nation’s beaches remain unsafe to swim in.  The National Resources Defense Council reported that one out of every ten or 10% of Americas beaches are unsafe to swim in. Wildlife and drowning are not the causes for concern, rather bacteria and pollution which can cause serious illness. Water samples were taken from beaches on the East and West Coasts as well as the Great Lakes. The Great Lakes followed by the West Coast seem to have to worst beaches in terms of water cleanliness. The East Coast faired the best during water testing.

Ohio ranked the worst in terms of its beaches with seven beaches that have failed to have safe water in multiple years. Many believe that the problem in the Great Lakes is that they are essentially a closed system, which means that water is more stagnant and less likely to circulate. Circulation of water is what helps to clean out the water and make it safe. The East Coast unlike the Great Lakes does not have a closed system, which is why some believe that the water is safer to swim in.

The pollution and bacteria that is affecting our beach water comes mainly from sewage overflow and stormwater runoff. The mass amounts of sewage and bacteria can cause a wide variety of illnesses, especially in children. Some of the most popular illness includes stomach flu, pinkeye, meningitis, respiratory infections, hepatitis, and skin rashes. Children are more susceptible to these illnesses not only because they carry a lower immune system, but also because they tend to swallow more water while swimming.

The EPA and Army Corps of Engineers have proposed a Clean Water Protection Rule, which would strengthen natural pollution safeguards, such as streams and wetlands. Streams and wetlands can be used to act as a natural filtering system for pollution which affects our beaches. The wetlands and streams can filter harmful bacteria and prevent polluted stormwater runoff.

Will a Signed Release Bar Your Claim

scuba divingShould you sign that release before you engage in risky activity?

Floridians and visitors to Florida are generally free to engage in hazardous recreations such as jet-skiing, para-sailing, skydiving, scuba diving, rodeo competitions, and auto races (to name a few), and to assume contractually all risks associated with those recreations before engaging in them. However, Florida law disfavors and narrowly construes such pre-claim exculpatory terms and releases of liability. A recent case involving an unfortunate death of a scuba diver highlights those concerns.

In Diodato v. Islamorada Asset Mangt., Florida’s Third District Court of Appeal concluded that “one waiver does not fit all” to shield companies from litigation when it comes to thrill-seeking activities such as scuba diving.

Avia Diodato drowned in April 2010 when she didn’t return to the boat in an open-water dive to the wreck of the Eagle, a freighter that was sunk intentionally near Lower Matecumbe Key.  Diodato’s husband, Dominic, sued Islamorada Asset Management Inc., owner of the operator Key Dives.

Avia Diodato signed releases with Key Dives in the previous year and for a shallow reef dive the day before her death.  Those releases intended to cover dives for the next year.  However, Key Dives failed to secure a signed written release for the deep dive which resulted in Avia’s death.

The appellate court reasoned that “the scope and duration of the ‘activity’ to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment.”  In other words, the court held that the scope and term of the deep water dive were different in both the nature of activity and risk involved from the type of scuba diving activity referenced in the release that had been signed just a few days earlier.

The Court concluded that people are free to engage in hazardous recreation, such as parasailing and scuba diving, and to contractually assume all risks. The law, though, is clear that signed waivers need to be tailored to the risk, not just the activity.  The court emphasized that “we disfavor and narrowly construe such pre-claim exculpatory terms.”

 In sum, releases are intended as shields from liability for businesses in Florida.  However, if the release is not narrowly tailored to specifically cover the risk and activity involved, then the release likely will not bar a claimant from making a claim.  Moreover, if the release is overly broad then it likely will not afford the business the protection it sought by having the release signed. (more…)

Governor Scott Recently Signed into law Florida’s First Parasailing Regulations

Parasailing 001Governor Scott recently signed into law Florida’s first parasailing regulations, which is a big relief to many families who have been involved in parasailing accidents. The Senate voted 40-0 to pass the new regulations in the parasailing industry. These regulations are long overdue as there have been over 21 accidents in Florida from 2001 to 2013. Of these accidents there have been a reported 23 injuries and 6 deaths.

Back in 2007 two young sisters were involved in a tragic accident due to the lack of regulations in the industry.  Of the two young girls the youngest sister (15) broke her neck and died two days after the incident. The older sister was in a coma and still suffers from the head trauma obtained during the parasailing accident.These tragedies forced their mother to lead the charge for major parasailing enforcement.  Other parasailing incidents also increased the need for reform.  Please do not hesitate to contact us if you’ve been injured in an accident.

The new regulations call for operators to carry a $1 million dollar insurance policy for each rider and also prohibit parasailing in sustained winds in excess of 20mph or wind gusts which reach 25mph. Many parasailing operators actually supported these new regulations. It is very sad for many that such tragic events like the one involving the two sisters, had to take place before anyone was motivated to enact any semblance of regulations in Florida’s parasailing industry. The wind regulations seem to be something that would likely decrease the number of parasailing accident as the majority of reported incidents are caused by significant winds.

Many companies supported the regulations because they believe that these new regulations will deter bad companies who give a bad reputation on the industry from getting into the business. They also hope that these regulations will encourage insurance rates to drop due to the regulations, which should make parasailing much safer.

Hopefully, these new regulations will drive faulty operators out of the industry and allow for a much safer parasailing experience for those looking for adventure hundreds of feet above the water.

Buyer Beware: Florida’s Supreme Court Expands Responsibility for all Title Owners of a Car – Even if the Title Owner Does Not Control the Car Which Will Impact Car Accidents in Miami

In Christensen v Bowen, 39 Fla. L. Weekly S214 (Fla. April 10, 2014), the Florida Supreme Court was asked to decide whether or not to impose vicarious liability on a jointly titled owner of a car even though the owner had not used or controlled the car.  This ruling may have an impact on car accidents in Miami.

In that case, the husband purchased a car for his wife, which he claimed to be a gift, although the title was in both of their names. The couple then divorced and title was shipped to the wife including both of their names.

The wife later killed someone in a car accident and the ex-husband was sued as the owner. The ex-husband claimed to have no control or access to the vehicle as he did not even have a key to it. At the end of the trial, the jury did not find the husband liable. However, an appeals court reversed the trial court. The matter was then taken to the Florida Supreme Court.

The Florida Supreme Court held that the ex-husband was liable under the dangerous instrumentality doctrine, because he retained a property interest in the car by having his name under co-owner on the title. They also found that his intent to gift the car was insufficient to be free of vicarious liability.

The Florida Supreme Court stated that under a bare legal title exception one may avoid vicarious liability if the titleholder demonstrates that they don’t have authority to establish dominion and control over the vehicle, and that they are not the beneficial owner of it. In this case the ex-husband was a beneficial owner in the vehicle because the title still held the right of survivorship, which would mean in the case of the wife’s death the ex-husband would hold the right to the property. Even though he chose not to possess the car, he could have legally possessed it if he so chose to. This means that evidence that you do not use the car is not sufficient to for one to avoid vicarious liability.

Not using the vehicle is not enough to show that you transferred your interest or that you’re not the beneficial owner. Since the ex-husband had the legal right to possess and/or sell/transfer the vehicle if he chose, he will continue to be considered a beneficial owner in the eyes of the court. For these reasons, the Florida Supreme Court concluded that a beneficial owner cannot escape vicarious liability under the dangerous instrumentality doctrine.

The lesson here is buyer beware  because Florida’s Supreme Court expanded responsibility for all title owners of a car – even if the title owner does not control the car.  So this ruling will impact car accidents in Miami.


Drunk Tour Bus Operator Kills Pedestrian

tour bus.jpgWe are all well aware of the dangers posed by driving a car under the influence. Therefore, one can certainly understand that driving a bus full of tourists certainly puts a lot of lives at risk.

Apparently, one Florida man couldn’t use his common sense and drove a tour bus under the influence. Sadly, this decision to drive under the influence ended up causing the death of a pedestrian in New York City.

According to news reports, the driver of the tour bus had a 1.75 liter jug of vodka on the bus with him. There are also reports that a “silver travel mug nearly-emptied of vodka” was found on the bus as well. Allegedly, the fist breath test came out under the legal limit. However, on a subsequent test he blew a 0.083. This is more than twice the legal limit of 0.04 for commercial drivers.

Charged with DWI and manslaughter, the driver of the bus worked for a company based out of Florida. It has been uncovered that the driver has been cited 6 times since 1997 – three car accidents, speeding, and twice driving with a suspended license. These facts certainly do not bode well for the tour bus company.

Simply, the tour bus company may be held liable under these circumstance for negligent hiring and retention. The bus company certainly has a duty to ensure that its employees are safe drivers by conducting background checks prior to hiring and by terminating employees who commit certain wrongs as an employee.

In South Florida, we see tour buses on a daily basis. As an international tourist destination, visitors often travel and see the local sights on a tour bus. If you or a loved are hurt are injured on a tour bus, we welcome you to contact us to discuss your rights.

Our attorneys used to work for the insurance companies. Now, they focus on representing the victims of car accidents in Miami, South Beach, South Florida, and beyond. Given the years our attorneys worked defending the insurance companies in car accident cases, they are uniquely prepared to ensure that the victims of car accidents receive just compensation for their injuries and property damage.

Consider Your Options. Contact Us Today.

If you, or a loved one, have been injured in a car accident, or assaulted, while at a hotel, restaurant or bar, please contact us today for a free case evaluation.

Call us today at 305-263-7700.

Motorcyclist Killed in an Accident Serves as a Reminder of the Potential Perils of Operating a Motorcycle

mc accident.jpgAccording to the Florida Highway Patrol, a motorcyclist is dead after being hit by a car in Orlando. Sadly, this story serves as a tragic reminder that drivers must be careful and look out for motorcyclists when driving.

Investigators are saying that the motorcyclist was traveling southbound on International Drive when he was hit by a Toyota around 9:40 pm. The Toyota was making a left hand turn and pulled right into the path of the motorcyclist.

The motorcyclist was struck by the left side of the car and was pinned under the car. The car continued to travel and dragged the motorcyclist until coming to a stop. It’s believed that driver of the car simply didn’t see the motorcycle.

However, not seeing a motorcyclist does not excuse a driver from any form of liability if a motorcycle has the right of way. Although motorcyclists are faced with greater risks of injury, and possibly death, they have the right to be on the road and drivers must watch out for them.

Seeing a motorcyclist can be even more difficult at night, so be certain when driving at night that you look out for not only other cars, but motorcyclists, pedestrians, and cyclists. Failing to keep a proper look out for others on the road constitutes negligence. Here, FHP is stating that charges are pending, so it appears that the driver may be at fault. This means that the family may have a potential cause of action against the driver of the car.

We’ve worked with other injured motorcyclists in the past and have achieved positive results. If you or a loved one are injured while riding your motorcycle, don’t hesitate to contact Alvarez & Barbara, LLP.

Last year, motorcycle riders aged 45 to 54 were involved in more deadly motorcycle crashes than any other age group. Those aged 25 to 34 are right behind them, according to the transportation department.

Motorcycle accident victims should speak with one of our experienced attorneys. We represented the insurance companies for years so we know all of their tricks. And we’re ready to use what we learned defending the insurance companies for your benefit. Therefore, call us today to discuss your case in greater detail.