Injury Law Update:

Week of July 8

First DCA

None Discussed This Week.

Second DCA 

None Discussed This Week.

Third DCA

Bejarano v. City of Coral Gables (No. 3D17-2636) – Motorcycle Accident

Bejarano was injured when his motorcycle struck an oncoming vehicle as he attempted to make a left turn.  Bejarano filed suit against the City of Coral Gables claiming that newly planted palm trees and the wooden supports holding them up obstructed his field of vision and prevented him from seeing the oncoming vehicle.  Bajarano further claimed the palms and wooden support created a dangerous condition which the City either knew about, or which it should have known about. The City of Coral Gables denied Bejarano’s claims and asserted it was entitled to sovereign immunity from any planning level decisions.

The City of Coral Gables moved for summary judgment.  In support, it filed an unsworn statement stating that there were no “clear zone” violations as well as 13 crash reports where the City claimed none of the parties involved complained of obstruction.  Bejarano submitted an affidavit from a traffic engineer and accident reconstruction who opined the trees and support violated several line of sight standards. Bejarano also submitted affidavits of several of the people identified in the 13 crash reports who stated that the palm trees contributed to their accidents.  The trial court ultimately ruled in favor of the City. Bejarano appealed.

In the appeal, the Third District found that summary judgment was improper and reversed the trial court.  Summary judgment is only appropriate where there is no genuine issue of material fact. Since there was a clear conflict in the evidence before the trial court as to the dangerousness of the palm trees, summary judgement should not have been granted. 

Fourth DCA

Macijauskas v. Dixon (No. 4D18-2156) – Car Accident, Trial by Ambush

Dixon was injured in a car accident in 2014.  When no settlement was reached, Dixon filed a lawsuit and the case proceeded to trial.  Macijauskas conceded fault and therefore the only issue at trial was the extent of Dixon’s injuries.

Dixon relied, in part, on the testimony of his treating physician, Dr. Myers.  Dixon informed Dr. Myers of a prior accident with medical treatment in 2010. Dr. Myers reviewed the MRIs related to the 2014 accident but did not review the MRIs or medical records related to Dixon’s 2010 accident.  Dr. Myers opined that the 2014 accident resulted in permanent injury to Dixon without knowledge as to the extent of injury to Dixon in 2010. When Dr. Myers was deposed, he did not comment on any injuries or medical treatment other than what was related to the 2014 accident.

During opening statements, Macijauskas, knowing his experts had reviewed the 2010 and 2014 medical records prior to trial, commented that the jury would be able to weigh the basis of the opinions and that maybe some people had not reviewed all the information necessary to make their conclusion.  The following day, Dixon called Dr. Myers to the witness stand. At that time Dr. Myers, for the first time, asserted new opinions based on his new review of the 2010 MRI earlier that day. Macijauskas objected to the new testimony of Dr. Myers. The trial court allowed it claiming his central opinion had not changed (the injury was related to the 2014 accident) and the jury could weigh the testimony as it saw fit.  The jury ultimately found liable for the damages to Dixon and Macijauskas appealed claiming reversal and new trial was required due to the new testimony from Dr. Myers.

The Fourth District agreed that Dixon presented “new and additional undisclosed testimony…after opening statements” which deviated substantially from pre-trial discovery.  The court further found Macijauskas relied on the pre-trial discovery in its trial strategy. As a result, Dr. Myers’ opinions prejudiced Macijauskas and amounted to trial by ambush.  The final judgement was reversed and remanded for new trial.

NOTE:  This case illustrates why injury attorneys should always timely provide treating physicians with the prior medical records related to the injured party.  By reviewing pre-injury medical records, treating physicians can obtain a better understanding of what injuries were caused by the incident or how pre-existing injuries may have been made worse.  

Insurance attorneys typically wait to hire their insurance doctors until after pre and post-injury medical records are obtained.  This is designed to provide insurance doctors with more ammunition to support their typical conclusion that the injuries complained of are pre-existing or otherwise unrelated to the car accident, trip and fall, slip and fall, etc.   

Fifth DCA

Estate of Jon Lopez v. Wilsonart, LLC (No. 5D18-2907) – Wrongful Death

Lopez died as a result of a car accident when his vehicle ran into the rear of a commercial tractor trailer (commonly known as 18-wheelers).  The Estate of Lopez filed suit against the Wilsonart, LLC, the trucking company, and driver for their alleged negligence in causing Lopez’s death.  A forward-facing dashboard camera on the 18-wheeler captured footage of the truck driver’s driving. Prior to be rear ended, the truck driver had driven in the same lane of travel and gradually slowing to a stop for a red light before a large rear impact forces the 18-wheeler forward and to the left.

Wilsonart, LLC moved for summary judgement claiming Florida law presumed Lopez to be at fault for the crash and the video of the 18-wheeler’s driving pattern prevented Lopez from overcoming the presumption of negligence.  The Estate argued that, despite what was on the dashcam footage, a witness to the crash testified the 18-wheeler suddenly changed lanes prior to impact.  The Estate also produced an affidavit from its expert who opined that part of the 18-wheeler was in portions of two lanes. The trial court granted Wilsonart, LLC’s motion.  The Estate appealed.

On appeal, the Fifth District reluctantly reversed the trial court’s order.  While reiterating the long-standing proposition that summary judgment should only be granted where there is no doubt about the material issues of fact, the court commented on the use of video in the case.  In so doing, it stated “[h]ere, the video evidence showing [the truck driver’s] driving pattern is both compelling that Appellees were not negligent and directly contradictory to the Estate’s evidence…” The Court then acknowledged the advancement of technology and questioned the current standards for summary judgment when video footage conflicts with eyewitness testimony.  It then certified this question to the Florida Supreme Court for consideration.

NOTE:  While the court is correct that the use of technology is advancing significantly, the court apparently does not consider how advanced technology may ultimately become.  Video manipulation and/or video creation is occurring in present day and will only continue to advance. It is not purely speculation to believe that one day, fake videos will be produced with the use of advancing technology that they are indistinguishable from real videos without the help of experts.  Such advancement may make the cost of determining whether such videos are fake or real prohibitive to those who are affected by it. 

GET YOUR FREE INJURY CASE REVIEW TODAY

If you have been injured, contact Presser Law for a free case review with an attorney to determine your legal rights.  For over 10 years I have represented injury victims throughout Central Florida in their times of need and I would be honored to help you as well.

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About Injury and Wrongful Death Attorney Justin H. Presser

Justin H. Presser is an award-winning attorney and founder of Presser Law, P.A. representing clients in the areas of personal injury, car accidents, motorcycle accidents, wrongful death and more.  With an office located in Altamonte Springs, Florida, Presser Law, P.A., proudly services clients throughout Central Florida including the following areas:  Orange County including Orlando, Ocoee, Doctor Phillips, Apopka, Winter Garden, Winter Park, Maitland, College Park, Thornton Park;  Seminole County including Altamonte Springs, Longwood, Winter Springs, Lake Mary, Oviedo, Casselberry, Chuluota;  Lake County including Clermont, Mount Dora, Eustis, Tavares, Leesburg, Sorrento; and Brevard County including Melbourne, Merritt Island, Cocoa Beach, Titusville, Palm Bay.

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