Tivoli Park Management is to blame for drowning of twin toddlers say residents

Last week, two year-old twin sisters Harmony and Harmani West tragically drowned in the swimming pool of their apartment complex, Tivoli Park, in Deerfield Beach, Florida. Since the incident, while the parents are attempted to cope with their brutal and unfair loss, residents and neighbors have clearly and unequivocally placed the blame on the management company for the family's loss.

"The doors don't lock." Residents said in no uncertain terms that the door and gate to the pool is always open. Lou Pena, a fellow resident at Tivoli Park told police and news reporters that the pool door "never locks. Anyone can go in whenever they want I don't blame a little child for wandering in it was going to happen sooner or later."

As discussed last week in our first entry on this tragedy, Florida Law imposes that residential swimming pools be fenced in. At the time of passage of the new law, drowning was the leading cause of death of young children in the state of Florida. The Legislature received testimony of experts throughout the legislative process confirming that constant adult supervision is the key to accomplishing the objective of reducing the number of submersion incidents, and that when lapses in supervision occur a pool safety feature designed to deny, delay, or detect unsupervised entry to the swimming pool will reduce drowning incidents.

As a result, the new law provided in part that residential swimming pools, such as the one at Tivoli Park, must be fenced in. Florida Statute 515.29 imposes certain standards for apartment complex and large residences in the manner their swimming pools must be fenced in:

Gates that provide access to swimming pools must be self-closing and equipped with a self-latching locking device, the release mechanism of which must be located on the pool side of the gate and so placed that it cannot be reached by a young child over the top or through any opening or gap.

According to statements from residents at Tivoli Park, the management company of the apartment complex did not maintain their property adequately by allowing the door on their swimming pool's fence to remain constantly open. The news report above clearly shows that the latching mechanism was broken at the time of the incident. This essentially caused the fence to be utterly useless as any child could walk through and gain access to the swimming pool, like it happened last week. Tivoli Park is likely negligent for the terrible tragedy that occurred on their property.

Leesfield & Partners has successfully litigated several injury claims arising out of the negligence of property owners and management companies and the lack of maintenance of pools, commercial pools, and spas: Federal Judge Awards $2.95 Million in Wrongful Death Drowning Cases

Broken lock on swimming pool fence of Deerfield Beach complex leads to the fatal drowning of two twin toddlers

Harmani and Harmony West were just 2 years old, yesterday in Deerfield Beach, they drowned in the pool of the apartment complex in which they lived with their mother. The apartment complex, Tivoli Park, has 6 pools and spas according to their website, all of which are gated with a locked door to prevent these exact incidents to occur. Witnesses did tell authorities that the lock on the pool in which the two small children drowned was broken and did not prevent the toddlers to gain access to the water.

3.jpgAccording to the responding officers, a couple visiting from North Carolina who was staying at Tivoli Park noticed a girl floating in the pool as the man made its way to the hot tub. He jumped in the pool and dragged the girl's body out of the pool as quickly as he could. The woman then noticed a second body. The couple called 911 and efforts to resuscitate were undertaken aggressively performed by CPR. One of the girl was taken to Broward Health Medical Center by ambulance, the other by air, but later that night, both girls were pronounced dead at the hospital.

The early investigation of the officers has shown that somehow the twin girls had somehow been able to exit their apartment and walked to the pool area. The pool was gated, but the lock on the gate was broken and the girls ended up in the pool.

Florida law requires residential swimming pool to be fenced in for safety

fl-twins-drowning-20140408-002.jpgThe Residential Swimming Pool Safety Act became law in 2009 with the sole purpose to reduce the number of drowning incidents and fatalities in the state of Florida. The law requires notably that all outdoor swimming pools must have a 4-foot fence or other barrier around the outer perimeter of the pool, with no gaps in coverage. The barrier must also be sufficiently away from the pool's edge so a child who penetrates the barrier or fence does not immediately fall into the pool. Entry through the barrier and to the pool must open outward and have a self-closing and self-locking device that is beyond a child's reach.

Harmani and Harmony West's incident was a needless tragedy. The swimming pool in which they drowned was fenced in, but the lock that would have prevented the twin girls from gaining access to the pool and drowning, was broken. While the investigation might reveal additional facts, the fact that a lock was allowed to remain broken for an unknown period of time, all the while knowing full well that families with small children were living in the apartment complex, places the blame squarely on the owner and association of Tivoli Park.

Lawsuit filed in case of fatal explosion against Holy Cross Hospital

Last August, Adele Bearman went to Holy Cross Hospital to have routine surgery. Leesfield & Partners, Ira Leesfield, said in an interview to the Miami Herald and other news outlet: "While they were doing this rather routine surgery, there was a leak from the oxygen mask into the environment. The surgeon, anesthesiologist, and the hospital employees didn't communicate with each other. There was an explosion. She literally caught on fire in the operating room."

A lawsuit was filed on March 4 against Holy Cross and other multiple doctors whom the complaint alleges they were negligent in this action. The complaint reads that "during the operative procedure Mrs. Bearman was supposed to undergo, Dr. Pasternak was the anesthesiologist who was responsible for providing MAC anesthesia to this patient. Dr. Pasternak was providing oxygen, via facemask, at 8 liters per minute at the time. Dr. Bermudez was utilizing electrocautery in close proximity to the flow of oxygen. Dr. Pasternak and Dr. Bermudez failed to communicate with each other concerning the utilization of oxygen via face mask and electrocautery in the proximity with the oxygen and as such created a dangerous, negligent and unsafe condition."

The complaint further alleges that "during the arterial biopsy performed by Dr. Bermudez, there occurred an operative fire caused by the combination of the presence of excessive oxygen and electrocautery with said fire causing burns to the face and additional burns on the chest, oral and nasal mucosal surfaces of Adele Bearman causing substantial pain, suffering, scarring, disfigurement, loss of ability to enjoy life, and serious bodily injury for which substantial care and treatment was required from her date of injury to her date of death."


Unsafe and neglected balcony railings lead to fall and catastrophic injuries

A month after falling off the balcony at a North Bay Village apartment complex, Jimmy O'Reilly is still at Jackson Memorial Hospital. Critically injured, it is still unknown whether Jimmy will be able to walk again.

In its on-camera investigation, Local 10 asked the same questions Tom Scolaro, attorney for Jimmy O'Reilly, has been asking; Where were the owner and the property manager? Why were the balconies and railings never fixed despite numerous complaints by multiple tenants?

"This was a recipe for disaster. You have an absentee owner and a property manager that was indifferent to the tenant complaints. Owners and managers must be responsible for maintaining their property. When they are not, and good people are gravely injured, it is our job to hold them accountable to the fullest extent the law allows" said Scolaro.

Despite numerous complaints by tenants about the condition of the balconies and railings, the property manager ignored the problems and did nothing to warn, repair or prevent the unavoidable. It was only a matter of time before one of the railings gave way and an innocent person fell.

Almost a month later, Jimmy O'Reilly, 36, is still in critical condition, and unable to walk. Jimmy also sustained a traumatic brain injury, and to this day, he has no recollection of what happened.

The day of the incident, the balcony railing at North Bay Village collapsed. "Jimmy did nothing wrong. He was leaning against a balcony at a friend's house and now he has to fight just to be able to walk again one day."

The owner of the building, Rudoph Faber, was cited in the past for conducting structural work in the building without permits. Since this incident, the city has required the property manager to have the entire building, including every single unit, inspected by engineers.

The building has 120 days from the date of the notice to repair all the balconies and railings, and bring the building up to code.

Will Florida finally pass regulations of the Parasailing Industry?

Yesterday, the Senate Committee pm Regulated Industries passed Senate Bill 320 by a unanimous vote of 9 to 0. Members of the Senate Committee had just finished hearing from families who have lost loved ones in parasailing accidents in Florida.

Thumbnail image for harness_parasailing.jpgAmong them, the family of Amber May White who tragically died in 2007 while parasailing with her younger sister Crystal. Leesfield & Partners represented the family and a confidential settlement was reached out of court. In 2007, as it is true today, the parasail industry is absolutely unregulated. Despite countless voices begging for this activity to be regulated, the industry has been operating completely free of any rules. Parasail operators are self-regulated, which often translates in utter lack of safety and proper training.

While yesterday was the first optimistic step in the right direction, it is 7 years removed from the fatal accident that has changed the family of Amber and Crystal forever. Click here to learn more about the events in that case and the lawsuit that ensued.

Among the proposed regulations, here are the most important measures that may become Florida law under Florida Statute 327.375:

- Minimum bodily injury liability insurance coverage of at least $1 million per occurrence and $2 million annual aggregate obrained and maintained by the owner or operator of the vessel;

- Proof of insurance must be available for inspection at the location where commercial parasailing is offered or provided for consideration;

- The insurance carrier's name and address and the policy number to customers requesting that information;

- A current and valid license issued by the United States Coast Guard to the person operating the parasailing vessel which is appropriate for the number of passengers and the size of the vessel;

- A parasailing vessel must be equipped with a functionnal VHF marine transceiver and a separate electronic device capable of providing access to National Weather forecasts and current weather conditions;

- An operator must use all available means to determine weather conditions and record this information in a weather log each time passengers are to be taken out on the water; and

- Recorded weather information should be available for inspection at all times at the operator's place of business.

Previous bills attempting to regulate the parasailng industry fail over the last 5 years. This new Senate bill is the latest and most promising to date. Let's hope that the legislator finally listens to its constituency and passes the very first law to regulate this dangerous activity.

Ira Leesfield recognized amidst the release of George Clooney's The Monuments Men

Appointed by President Clinton to investigate and track down looted Holocaust art and cultural treasures stolen during World War II across Europe, Ira Leesfield was recently recognized by the Miami Herald for the role he played in the U.S. Presidential Advisory Commission on Holocaust Assets from 1998 to 2000.

The release of George Clooney's latest movie, The Monuments Men, has led many men and women to being honored at various Washington institutions that played major roles in the protection, investigation, and in several cases, rescue of European treasures during and after World War Two.

The Commission made several significant findings, some of which are below:

The Commission concluded that United States forces in Europe made extraordinary efforts to locate, safeguard, identify and restitute assets taken by the Nazis and their collaborators from victims of the Holocaust. Because of the enormity of Nazi crimes, the undertaking by U.S. agencies to preserve, protect and return looted assets was unparalleled in history and willingly carried out by a victorious power committed to righting the wrongs of a defeated enemy regime. U.S. military and civilian personnel encountered a myriad of obstacles under the very difficult circumstances prevailing in postwar Europe. Their achievements were nothing short of heroic.

Nevertheless, the restitution policy formulated in Washington, D.C. and implemented in the countries in Europe occupied by the United States could never fully address the unimaginable dimension and complexity of restituting assets to victims of the Holocaust. For the most part, the inadequacies in both policy and implementation reveal that U.S. authorities were driven by necessity. They were often unable to restitute all of the victims' assets under their control because of practical concerns that commingled with conflicting interests, priorities and political considerations. Restitution competed with, and was often subordinated to, the desire to bring American troops home, the need to rebuild devastated European economies and provide humanitarian assistance to millions of displaced persons, and the Cold War. These shortcomings can be partially explained as an unintended consequence of adherence to international legal principles, but the Commission's research has also revealed that, when it came to assigning scarce manpower and resources, the United States accorded a relatively low priority to restoring the looted assets and lost property rights of individual victims and their heirs.

With respect to many types of assets, the United States followed international legal tradition and undertook only to restore property to national governments, which it assumed would be responsible for satisfying the claims of their citizens. When the United States recognized that this arrangement excluded those who no longer had a nation to represent their interests, or who had fallen victim to the ruthless efficiency of Nazi genocide and whose property had been rendered heirless and unidentifiable, it designated certain "successor organizations" to sell heirless and unclaimed property and apply the proceeds to the care, resettlement and rehabilitation of victims. This innovation seemed to present an attractive alternative to the difficult and resource-intensive job of tracing individual ownership, but its adoption led many assets to be too hastily labeled as heirless or unidentifiable, with the result that they were assigned to the successor organizations, rather than returned to their rightful owners. This approach had a particularly negative impact on the ability to identify and restitute assets that had been taken from Roma and Sinti, homosexual, and disabled victims, who had no international organizations representing their interests.

Far more regrettable is the United States' failure to adequately assist victims, heirs and successor organizations to identify victims' assets, instead relying upon them to present their own claims, often within unrealistically short deadlines, with the result that much victim property was never recovered. Even when property was returned to individual owners or their heirs, it was often only after protracted, expensive and insensitive administrative proceedings that yielded settlements far less than the full value of the assets concerned.

While the overall record of the United States is one in which its citizens can legitimately take pride, even the most farsighted and best-intentioned policies intended to restitute stolen property to its country of origin failed to realize the goal of returning property to the victims who suffered the loss. Indeed, there remain today many survivors or heirs of survivors who have not had restored to them that which the Nazis looted. And, in large part, it will remain forever impossible to return the actual assets stolen from them over 50 years ago.

The uniqueness of the Holocaust does not negate its ability to offer lessons for the behavior of government in other contexts, and the Commission also believes that it is important that these findings lead our government to develop policies to promote the preservation and restitution of the assets of victims of persecution associated with future armed conflicts.

It is an enduring strength of American democracy that we can look honestly at the results of our actions, address their implications, and assess accountability and responsibility. In setting forth the following findings, the Commission does not imply that failures of policies to accomplish their goals are attributable to bad motives on the part of any official, agent or institution of the United States. Where combinations of policy and circumstance led to results that can be improved upon now, the Commission suggests ways to achieve these improvements. Where new facts have come to light that argue for changes in policy, the Commission proposes appropriate changes. The findings that are associated with particular policy recommendations are meant to locate those recommendations in the historical context and not to mechanistically quantify or assign dollar values to perceived historical shortcomings in U.S. policy making or implementation.

The Commission believes that this history, viewed as a whole, suggests that a series of actions to be taken now are appropriate to provide a modicum of justice to Holocaust victims and their heirs. It is the desire to do justice that animates American policy in this area, including this Commission's recommendations.

Ventilator-dependent twin brothers die during power outage

In Northern California's Calaveras County last night, twin brothers Ryan Hall and Joshua Hall died during a local power outage. The two 22-year-old brothers were ventilator dependents and the early investigation revealed that their respective ventilators' back-up system systems failed when the house lost power.

twins16n-1-web.jpgRyan and Joshua Hall suffered from muscular dystrophy and relied on their ventilator to breathe for them. Sheriff Gary Kuntz told reporters that the investigation is focused on the reasons why the backup systems failed.

This tragic incident is eerily similar to a case Leesfield & Partners recently handled and successfully resolved after almost three years of litigation, and a $2.5 million wrongful death settlement was reached for the parents and sole caretakers of the 31 year-old man who died.

The young man in question had courageously defied all expectations, outliving the early prognosis of most doctors, only to die needlessly when his ventilator failed in the middle of the night during a power outage. The ventilator's backup internal battery lasted less than 10 minutes that night and did not adequately sound its alarm to alert his sleeping parents.

Leesfield & Partners filed a lawsuit against the manufacturer of the ventilator and the respiratory therapist and his company who owned and maintained the ventilator. Discovery revealed that the internal battery was expired and the ventilator itself had manufacturing and design defects. The manufacturer of the ventilator had received hundreds of complaints over approximately a 10-year period involving this specific ventilator model not performing to specifications.

After exhaustive research into the company's history, it became clear that the manufacturer had systemic problems and failed to comply with FDA standards which contributed to the internal power and alarm problems. A confidential settlement was reached with the manufacturer.

In addition to the defects, the respiratory therapy company, was negligent in its duties and failed to provide regular and preventive maintenance on the ventilator. Most significantly the company failed to ensure that the ventilator receive a new internal battery after the prescribed time. The respiratory therapy company also ignored FDA recalls regarding the internal power and alarms problems and falsified maintenance records. Facing an imminent trial date and a claim for punitive damages, the respiratory therapy company settled this case.

As a result of litigation led by our Miami personal injury lawyer, the manufacturer implemented several policy changes at its facility including the improvement of corrective action, preventive action protocol, data collection, reporting methods and FDA compliance. It has indicated that recent recalls have finally addressed the defects and the medical device is now safer.

Florida bans texting while driving - Law in effect October 1, 2013

On October 1, 2013, the first law banning texting while driving comes into effect in the State of Florida. This law is a half step in the right direction, but a half step nevertheless.

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The Florida legislator has advocated for a ban on cell phone use while driving for several years. The best compromise Tallahassee was able to reach has essentially pulled the teeth of the new law. We described in detail the shortcomings of the new piece of legislation in our previous articles on the topic:

Florida's ban on texting while driving - A toothless law in need of more bite!

Florida on its way to ban texting-while-driving? How a worthless piece of legislation will keep roads unsafe.

Essentially, the law does not place any incentive on drivers to do the right thing and stop using their cell phones while they are behind the wheel. The new law has numerous built-in exceptions and exemptions that allow drivers to lawfully use their phone in the car. First, if your car is stopped, at a red light or a stop sign, you can use your cell phone at your leisure. That includes texting, checking your emails, browsing the internet, watching a video online, etc. If your car is actually moving, you can still lawfully use your phone for certain tasks such as using voice-commands, checking a GPS map and directions. You can even read text messages if they contain 'address' information or 'directions'. In other words, you can still use your cell phone while driving and should you get pulled over, explain that you were looking at your cell phone map for directions.

More than likely however, you will not get pulled over and you will not have to explain yourself to any police officer. That is because the new law is a secondary offense, meaning that unless you commit a primary offense for which you can get pulled over, you will not have to fear police officers stopping you if they see you texting on the road.

For the past decade, Leesfield & Partners' Senior Managing Partner has been at the forefront of the issue from a safety and business standpoint. Below are three articles Ira Leesfield has authored on this very topic:

Make the right call on texting and driving

Texting and driving a costly business risk
Special to the Miami Herald

Driving + Cell Phones = Bad Call
American Association for Justice (2010)

Today is the first day the new law is in effect. It is the perfect opportunity to stand by the road, look at cars passing by and marvel at the number of drivers who are using their phone while making 40+ miles per hour. Or you can look at the daunting statistics on accidents caused by texting:

- Drivers who use hand-held devices are 4 times more likely to get into crashes serious enough to injure themselves and others.
- Driving while using a cell phone reduces the amount of brain activity associated with driving by 37%
- Driving while distracted increases the risk of a crash by 23 times
- 20% of all car accidents are caused by a distracted driver
- 10% of all car crash fatalities are caused by a distracted driver

The behavior has reached epidemic proportions in Florida, and unfortunately the new law will do nothing to curb that reality. Florida residents must police themselves to increase safety on the road until the law is changed and gives law enforcement the tools it needs to produce a statewide behavioral modification.


Miami Archdiocese again in the spotlight for more claims of sexual abuse on high school students

The Archdiocese of Miami is again making news for the wrong reasons. Three former PACE High School students (Hialeah) have filed a civil lawsuit against the diocese and their alleged abusers, Brother Ken Ward and Father Gustavo Miyares, and, there are more to come.

brother ken ward.jpgIn the complaint filed this week by Leesfield & Partners, the sexual abuse endured by the three young men is described as occurring repeatedly over several years. Brother Ken Ward was the Dean of Students at PACE High School when the alleged abuse took place. Each student was served several alcoholic beverages by Dean Ward to make them compliant. Ward would use pretexts almost on a daily basis to get the boys in his office, at the time the young men were young teenagers. Ward would ask them to take their clothes off after making sure his door was locked and his blinds were shut. He would observe the students bodies from his desk chair while sipping his alcohol-filled diet coke. Inevitably, Ward would walk to the student standing naked in front of him and began touching his body. The abuse would lead to fondling the student's genitalia, as well as masturbation and digital penetration, and other unspeakable acts.

According to the three plaintiffs, Ward would repeat his abuse on them on a weekly, if not on a daily basis. One of the plaintiffs was also sexually abused when he was a young child at Immaculate Conception Catholic School, an abuse that lasted from Elementary school through high school. During these early years, he became an altar boy, under the care of Father Gustavo Miyares. The latter slowly groomed the child by inviting him to spend time with the priest. The private meetings turned into a horrific extended-period of numerous unauthorized sexual acts, including touching genitals, and inducement of oral and anal stimulation, even as the plaintiff was a pre-teen child.

Neither Brother Ward or Father Miyares are part of the Archdiocese of Miami today. Ward was mysteriously removed from PACE High School in 2006 and was re-assigned to an all-boy school in Miami, Christopher Columbus High School. In 2008, Ward was removed for good. He has since pursued a career in nursing and currently works in Fort Lauderdale at a psychiatric hospital, according to the Miami Herald who reported on this lawsuit today.

Click here to read the article in the Miami Herald.

Father Gustavo Miyares.jpgFather Miyares left the Miami Archdiocese in 2006 after allegations of sexual abuse were brought up against him. At the time, Miyares, 59, was the longtime pastor of Immaculate Conception Church. During a meeting held by top archdiocese officials, Miyares was confronted about the allegations. "During that meeting, it was agreed that Father Miyares would prepare his parish, his family and his staff for his imminent departure and resignation," said archdiocese spokeswoman Mary Ross Agosta.

She added that Miyares's resignation was based on a "mutual decision," noting that the allegations were "credible."

Following the filing of this latest lawsuit this week, Archdiocese spokeswoman Mary Ross Agosta said senior church officials first learned about the alleged abuse last fall. This would seem to contradict several public records, which evidence that, as early as 2006, and before, the Miami Archdiocese knew of claims of sexual abuse occurring at PACE High School by Brother Ken Ward. At the time, a PACE teacher reported alleged sexual misconduct by Ward to the Miami-Dade Police Department and to Ana Garcia, PACE High School principal. Observations of Brother Ward's aberrant behavior were legion.

"He's not sure exactly what Ms. Garcia did with the information he provided," stated an October 2006 police report. The police report shows that a sexual crimes detective interviewed the teacher and five students believed to be targets of Ward's alleged sexual abuse.

These reports establish that the school and the Archdiocese of Miami knew as early as 2006, that Ward had accusers who suspected him of sexual misconduct. These allegations did not come from a victim, but from a faculty member who had information of potential sexual abuse going on at PACE High School. The question remains as to when the Archdiocese and PACE High School Principal knew about these allegations, and did these allegations have anything to do with Brother Ward's removal from PACE that same year. Ward was suddenly whisked out of PACE before the end of the 2006 school year. If the two events are linked, then what was the Archdiocese's motivation to re-assign Brother Ward to another high school in Miami, an all-boy high school.

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In conjunction with the filing of this lawsuit against the Archdiocese of Miami, Leesfield & Partners is calling upon all potential witnesses of these alleged sexual abuses, to come forward, and share any information pertaining to and relevant to this latest church sex abuse lawsuit. If you have any information about the matters discussed in the lawsuit, or know anybody who may have some information, visit our sexual abuse litigation website to contact our firm directly, or contact our office at 305-854-4900.

Fatal Car2Go Accident downtown Miami

At dawn this morning in Miami, a Chevy pick-up truck traveling eastbound on Northeast 15th Street, in downtown Miami, was t-boned by a white Daimler SMART car traveling southbound on Biscayne Boulevard. One of the investigators told the media that it is believed the driver of the SMART car failed to stop at a stop sign or a red light, which was the cause for the two vehicle to collide at such a high rate of speed.

car2go-crash.jpegThe incident occurred at approximately 4:45am on Wednesday August 14, 2013. The passenger of the SMART car, a young woman in her twenties was fatally injured and died at the scene. The driver of the SMART car was critically injured and rushed to Jackson Memorial Hospital. The condition of the driver of the pick-up truck remain unknown but reporters have shared that there are serious concerns he may have sustained a catastrophic spinal cord injury and may be paralyzed. (Photo on the left courtesy of Miami Herald)

The SMART car involved in this incident, whose driver was supposedly at fault, was a CAR2GO vehicle. According to the company's website, CAR2GO is a mobility program launched in Austin, Texas back in November 2009. The company provides a fleet of free-floating vehicles distributed all over the city. Individuals who become members of CAR2GO have the ability to use any vehicle from the CAR2GO fleet at any time.

Car2go.jpgCAR2GO launched in Miami during the Summer of 2012. Today, the fleet of Miami CAR2GO is made of more than 200 free-floating vehicles throughout Miami-Dade County. The accident that occurred this morning is the first reported fatal accident in South Florida involving a CAR2GO vehicle. Questions have already been raised as to whether alcohol played a role in the crash and whether the CAR2GO driver was under the influence at the time he drove off with the SMART car.

If the facts leading up to the accident are verified and the CAR2Go driver caused the death of his passenger and the pick-up truck driver to be paralyzed for life, several questions will have to be raised pertaining to the CAR2GO business model and its admittedly insufficient insurance coverage in case of injuries caused by one of their members. On its website, CAR2GO discloses that its liability insurance coverage is limited to $100,000 per person/$300,000 per accident for bodily injuries.

The Graves Amendment, 49 U.S.C § 30106, preempts Florida Statute § 324.021(9)(b)2 (2007), thereby insulating rental car companies from vicarious liability while engaged in the trade or business of renting or leasing motor vehicles. In lay terms, rental car companies cannot be sued for injuries caused by the driver of a rental car under the Florida's Dangerous Instrumentality Doctrine and the application of the vicarious liability laws. The Graves Amendment targeted leasing companies as well as car rental companies with the embedded understanding that a rental agreement would last at least 24 hours. At the time the Graves Amendment became law (2005) and at the time the Florida Supreme Court ruled on its application versus Florida Law (2011), the CAR2GO business model was not in existence in Florida.

Some would argue that CAR2GO should be insulated from any liability in the accident that occurred this morning, pursuant to the Graves Amendment. However, there would be several significant legal arguments to be made pertaining to the difference in the business model that the Graves Amendment attempted to protect, and the free-floating model launched in 2012 in Miami by CAR2GO.

In response to the potential protection under the Graves Amendment, a serious question must be asked: Why hasn't CAR2GO implemented an alcohol ignition interlock system for its entire fleet of vehicle? It is very foreseeable that an inebriated CAR2GO member leave a club or social event and decide to use a CAR2GO vehicle. The entire business model is based on a car being always available to its members, and available everywhere. By definition, installing an alcohol ignition interlock system on all its vehicles would prevent the exact accident that occurred this morning downtown Miami.

What is an alcohol ignition interlock system? It is a is a mechanism, like a breathalyzer, installed on a motor vehicle's dashboard. Before the vehicle's motor can be started, the driver first must exhale into the device; if the resultant breath-alcohol concentration analyzed result is greater than the legal blood alcohol concentration, the device prevents the engine from being started. This system should have been installed on every single CAR2GO vehicle, and had it been installed on the vehicle used at dawn this morning, three lives and families would not have been shattered forever.

In addition to an alcohol ignition interlock system, questions of potential negligent entrustment must be raised. Over the last three decades, Leesfield & Partners has represented many victims of rental car accidents, whether they were innocent bystanders or catastrophically injured passengers. Visit the Leesfield & Partners website to learn more about our firm and results our personal injury attorneys obtained on behalf of injured victims.

Manager of Aquatic Adventures fights parasailing regulations and hires convicted drunk driver as parasailing boat operator

Each and every year, families and friends have to mourn the loss of a loved one or see a loved one sustain life-altering injuries. Each and every year in Florida, it seems that someone will become critically injured in a parasailing accident. The reason for this horrific spectacle is the lack of any laws to regulate the parasailing industry. Floridians and tourists from out of state and from all over the world purchase parasail rides year round. The parasailing industry is a very lucrative business, which is inherently dangerous if practiced in a less than perfect environment.

To that end, Leesfield & Partners have pushed the legislator for regulations at the state-level to prevent preventable parasailing accidents. The incident which saw 17-year-old Sidney Good and 17-year-old Alexis Fairchild sustain catastrophic injuries is the latest of many preventable incidents. As long as Florida does not adopt strict regulations and force parasailing operators to answer to the law, there will be headlines in the news that another person lost their life due to the negligence of a parasailing operator.

Last year was the last attempt of many to pass a law to regulate that business, but the legislator failed, once again, due to the commercial and economic pressures put forth by special interests.

The law would have prevented parasail operators from operating within 1,800 feet of the shore. It would have required operators to have a radio on the vessel to closely monitor weather conditions, which are known to be rapidly changing in Florida, and would have prohibited any parasailing activity during sustained winds of 20 miles per hour or more. Lastly, it would have required that parasail businesses carry insurance of at least $1 million per person and $2 million per incident.

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One person spoke against the passage of the law: James Vaught, Managing Partner of Aquatic Adventures in Panama City Beach.

Sidney Good and Alexis Fairchild purchased a parasail ride from Aquatic Adventures earlier this week. They are both still listed as critically injured and recovering at the Bay Medical Center Sacred Heart Hospital.

In an interview with the NewsHerald, James Vaught voiced his displeasure with the proposed law. Back on April 4, 2013, Vaught said that parasail operators are getting a bad wrap from the media: "It's a lot of bad information. We're just not being looked at correctly. We're being looked at like a bunch of rogue pirates."

He continued by explaining that operating 1,800 feet away from shore would limit Aquatic Adventures' ability to sell the activity to beachgoers. He also mentioned that his company follows self-imposed safety standards and that "only a handful are doing wrong."

Despite Vaught's reassuring quotes, his company, Aquatic Adventures, is now in the middle of an investigation following this tragic incident, which will soon determine whether his company and the captain of the Why Not were negligent and contributed to Sidney and Alexis' injuries.

Tyler Churchwell was the captain of the Why Not, the vessel in use during Sidney and Alexis' ride. Our investigation has revealed that Tyler Churchwell was arrested in the past for driving under the influence. He was found guilty of DUI, as well as possession of a controlled substance (marijuana) at the same time.

Vaught himself was arrested on several criminal charges, including altering a license plate, possession of a controlled substance (marijuana), leaving the scene of an accident, and driving without a license.

In all, Vaught and Churchwell have both been arrested, convicted, and/or cited for more than 30 criminal violations ranging from misdemeanor to felony.

The parasailing business is just that, a business. The activity however does not lack danger. When a person entrusts their life, or the life of their minor children, to a business that does not answer to the law, incidents will occur.

It would seem that the criminal record of Aquatic Adventures' employees indicates that Vaught's quotes of April 2013 were simply self-serving, begging the legislator to leave their business alone, unregulated, and unchallenged by the authorities. He did add that Aquatic Adventures has "been operating under safe operating practices for 12 years." The investigation will tell in a few weeks exactly what went wrong on July 1, 2013, and by then, the families of Alexis and Sidney may disagree with Vaught's rosy statements.

Click here to read more about the status of Alexis Fairchild and Sidney Good.

Health of teenagers injured in Panama City parasailing accident improving amidst questions about potential Parasail operator's negligence

According to the latest reports, both teenagers' health are slowly improving and their respective doctors are expecting both girls to recover from their traumatic injuries. The family of Sidney Renea Good and Alexis Fairchild, 17-year-old girls from Huntington and Roanoke, Indiana, have shared that their daughters have both suffered head trauma and severe lacerations. However they are both communicating with their doctors and close family members with small hand gestures.

Earlier this week, Sidney and Alexis purchased a parasail ride with Aquatic Adventures in Panama City. While both girls were up in the air, the weather deteriorated and strong winds rolled onto the the shore. The rope of the parasail snapped and both girls, who were riding in tandem, were catapulted onto a condominium near the shore, before hitting a power line or a utility pole. They crashed seconds later on top of an SUV in a nearby parking lot. Both girls were breathing at the scene, but one of them was knocked unconscious.

Sidney Good Alexis Fairchild.jpgThe statement released by the family of the two girls reads as follows: "Alexis has severe back injuries and Sidney has neck trauma. However, we are fortunately seeing some positive signs from both Sidney and Alexis. Sidney has been responsive to caregivers and has been able to use small movements to communicate including a thumbs up for her parents. Alexis had surgery (Wednesday) on her spine and has also been responsive including a small wave at her parents when she returned from surgery. Our families are incredibly touched by all the support we've received from friends at home and from many people we haven't met before who are praying for our girls. While the situation is still critical we are encouraged by these very small signs of progress. We have heard from so many generous people who have offered to help and we are working to establish a fund for the medical care of both Sidney and Alexis. We will have more information on that to come. Thank you again to all who are thinking of and praying for our girls. Your prayers are working!"

Investigation focuses on Aquatic Adventures and the operator of the boat
While the parents, families and friends of Sidney and Alexis continue to hope for a full recovery, the Florida's Fish and Wildlife Conservation Commission's investigation is still ongoing and should be not be concluded anytime soon, according to their statement.

The investigation has focused on several elements already: The weather, the equipment used, and the operator's potential negligence. Several reports have indicated that before the two minors were sent up in the Panama City cloud-building sky, a storm was already in effect nearby. Within minutes of lifting the girls in tandem on the parasail, winds began to increase at rapid pace causing mayhem aboard the boat. The chute of the parasail was blowing in an inland direction, causing the boat, the Why Not to be pushed towards the shore. In just a few minutes, the situation became uncontrollable and the operator of the Why Not, Tyler Churchwell, decided to anchor down the boat in an attempt to prevent the boat from grounding on the beach.

That is when the real catastrophe occurred. The towline linking the parasail, and its two minor occupants, to the boat snapped due to the force of the wind. Investigators will look at the rope that was used that day. In a prior parasailing accident case, the rope used by the negligent operator was inadequate for the parasailing activity. The manufacturer of the rope had confirmed to investigators that he had stopped any and all commercial activities with parasailing operators because his ropes were being recklessly misused by these operators.

Investigators will also take a closer look at the type and size of chute that was used during Sidney and Alexis' ride. Prior to sending anybody up on the parasail, the operator ought to calculate the combined weight of the customers, the wind conditions, and determine which chute is proper for the ride. In another parasailing accident case where Leesfield & Partners represented the victims, the chute used was determined to be much too large for the combined weight of the customers which gravely contributed to the accident and their demise.

Leesfield & Partners will continue to report on this latest tragic, yet preventable, parasailing accident in Panama City. Follow this link to read more of our reporting on parasailing accident.

Parasail accident in Panama City sends two teenagers to hospital in critical condition

On Tuesday July 3, 2013, two teenage girls from Indiana were vacationing in Panama City and purchased a parasail tour. While in the air, a severe storm began to develop and the two rope snapped due to the high winds. The two 17-year-old girls, Alexis Fairchild and Sidney Good, who were riding in tandem, were at the mercy of the winds. Not before long the parasail crashed into the side of a condominium. Seconds later, the girls hit powerlines or a utility pole before plummeting down in a parking lot. According to witnesses, both girls were limp, on the ground. Rescue rushed them to the Bay Medical-Sacred Heart hospital in Panama City. They remain in critical condition.

This incident is the latest of numerous parasailing accidents off the Florida coasts in the last several years. As is customary in shoreline incidents, the Florida's Fish and Wildlife Conservation Commission has taken over the investigation. The investigators released a preliminary statement that seems to corroborate severe weather developing before or during the parasailing activity: "Sidney Renea Good of Roanoke and Alexis Fairchild of Huntington were parasailing in a tandem harness over the Gulf of Mexico off Panama City Beach when an afternoon storm developed with strong winds."

In 2007, two teenage sisters were also vacationing in Florida when they decided to take a ride up on a parasail. Like Alexis and Sidney, they were both incredibly excited. Several minutes into the ride, strong winds started to build up. The boat was pushed towards the shore line more and more and the two girls were helplessly dangling in the air, above the beach, near the buildings. See the video below:

Seconds after the video was taken, the rope of the parasail snapped and the two girls who were riding the parasail in tandem were thrown in-land by the force of the winds. They collided with a nearby building, and were dragged across the roof of another. Once they reached the edge of the roof, the chute of the parasail was no longer supporting them and they fell down into a palm tree, and then on the ground. Both girls were rushed to the hospital, but sadly only one of two sisters survived the incident.

The video below is a rendition of the incident as it happened. It was aired during our firm's appearance on The Today Show:

Parasailing: An unregulated activity

The State of Florida does not regulate the activity and commerce of parasail. Anyone who has a boating license can purchase a chute, a rope and be in the parasailing business. The consequence is inevitable: preventable accidents will occur, leaving victims and their families begging to know why this had to happen. While Sidney and Alexis are fighting for their lives and hopefully on the road to recovery, the sadness of the families leaves others who have already dealt with the grief of a lost one with wondering in fury why this was not prevented.

An early investigation revealed that yesterday in Panama City, the weather forecast included severe winds, including severe gusts of wind, as well as deteriorating weather from scattered clouds, to cloudy and stormy. The operator of a parasail is not mandated to look at the weather forecast in the first place, and if he or she does, it is the operator's discretion to send someone up in the air. In other words, toursists and visitors are at the mercy of a boat captain who often times does not have the proper training, and/or the proper equipment to provide for its customers' safety first.

After another incident that occurred in the Summer of 2012, Ira Leesfield, who has litigated several catastrophic and wrongful death cases stemming from parasail accidents stated the following in the Miami Herald: "There's no due diligence, no inspection. You just take your chances."

You can read more about this article here: Deadly Parasail Accident in Pompano Beach - "There's no due diligence, no inspection. You just take your chances,'' Ira Leesfield says to Miami Herald

In the last several years, Leesfield & Partners has represented several families who were the victims of the negligence of a parasail operator. While bad weather is typically the element that plays an important part in causing the incident, our investigations have always revealed that parasail tours pur profit above safety of customers. In many instances, we found that the type of rope used was inadequate, or that the size of the chute was inadequate for the weight and size of the customer. In every case, the victim or the family must live knowing that the incident was preventable and that the tour should never have occurred in the first place had all the warning signs been read by competent operators.

Click here to read more about our firm's representations in parasailing accident cases

Three people killed by carbon monoxide in North Carolina hotel room in two months

Jeffrey Lee Williams and his mother Jeannie Williams were staying in hotel room 225 at the Best Western in Boone, North Carolina, this past weekend. On Saturday, the hotel staff was alerted by Jeannie's husband that he could not reach his family and asked to go check on them. When they opened the door, first responders found the dead body of 11-year-old Jeffrey. Next to him was his mother Jeannie, who was still alive, but in a deep state of asphyxia. She was rushed to the hospital by ambulance, and as of today, Jeannie is listed in stable condition, still recovering at Watauga Medical Center.

On Monday afternoon, the Watauga County Health Department in charge with finding the cause of this incident advised that carbon monoxide was found in the hotel room where Jeffrey and his mother were staying this past weekend. Initially, the cause of death of the young boy was asphyxia, which leads to believe that something in the hotel room had caused his death.

Local news station WCNC-TV reports today that the hotel room in which the mother and son were staying was situated directly above the swimming pool of the hotel and the gas heater used to heat the water of the pool. The investigation is ongoing and further testings will be conducted in the next few days.

Back in April, an elderly couple, Daryl Dean Jenkins, 73, and Shirley Mae Jenkins, 72, from Longview, Washington, were also staying in hotel room 225, the same hotel room Jeannie Williams and her son stayed in. Their son, Doug Jenkins, had his last conversation with them on April 15 before 8 p.m. Their daughter sent them a text message later that night as well, but it was never read. The next day, the bodies of Daryl and Shirley were found in hotel room 225, they had died within two feet of each other, with no external evidence that could lead to the cause of their death.

The Jenkins family, through their attorney, is still investigating why their loved ones died night. The autopsy report was inconclusive, and the toxicology report seems to still be pending. While waiting, the family attorney sent a spoliation letter to the Best Western, asking them to keep the hotel room in the same condition as it was on the night of April 15, 2013. Best Western turned around, and chose to continue to have guests stay in hotel room 225 instead. The thoroughness of the Best Western's investigation into the deaths of Daryl and Shirley Jenkins is unknown at this time, but one would conclude that the testing for carbon monoxide was never performed. Or at least, it was never performed until this past weekend, after little Jeffrey was found in the same hotel room 225, also dead.

Ira Leesfield & Thomas Scolaro of Leesfield & Partners have represented dozens of victims of carbon monoxide poisoning in the last fifteen years. Ira Leesfield led the efforts that saw the adoption of Florida's first carbon monoxide legislation which make it mandatory for all commercial buildings with boilers to have carbon monoxide detectors in every single unit. The push for that legislation came on the tail-end of a tragedy in Key West which saw the death of a young man while staying in a hotel. To read more about the story behind the passage of Florida's carbon monoxide law, click here: Leesfield & Partners Instrumental in Creating Law Requiring Carbon Monoxide Detector in Hotels

To read more about another tragic carbon monoxide related case, click here: Students Hospitalized for Carbon Monoxide Poisoning in New York


Motorcycle Crash on US-1 near Leesfield & Partners Miami Office

This morning at approximately 6:00 a.m., an off-duty firefighter was involved in a motorcycle accident with another motor vehicle at the intersection of US-1/South Dixie Highway and SouthWest 22nd Avenue, less than 400 years from Leesfield & Partners' offices in Miami, Florida.

Clip_25.jpgLittle information is known at this time, other than the person riding the motorcycle was seriously injured and transported to Ryder Trauma Center at Jackson Memorial Hospital. His status is unknown. The other person involved in the crash is reportedly cooperating with the responding Miami-Dade County Police officers.

Collisions between a motorcycle and a car are among the deadliest and more catastrophic traffic accidents. In Florida, there are on average 380 motorcycle accident fatalities every year since 2000. Each year In 2006, 2007, and 2008, there were over 500 motorcycle deaths.

Florida law allow a person of 21 years of age to ride a motorcycle without wearing protective headgear securely fastened like a helmet if covered by an insurance policy providing for at least $10,000 in medical benefits for injuries incurred as a result of a motorcycle crash. Florida is one of two states with such lenient helmet laws, with the State of Michigan.

A 2011 report from the Governors Highway Safety Association ("GHSA") compared motorcyclists traffic fatalities by State. The conclusion and number one recommendation was the passage of a universal helmet law to prevent unnecessary catastrophic and fatal accidents on US roadways: "Helmets are by far the single most effective method to prevent motorcyclist fatalities and serious injuries. NHTSA estimates that helmets saved 1,829 motorcyclists' lives in 2008 and that 822 of the unhelmeted motorcyclists who died would have survived if they had worn helmets."

Clip_26.jpgFlorida used to have a universal helmet law which made mandatory for a motorcyclist to wear a helmet at all times, regardless of age or insurance. In 2000, Florida repealed its universal helmet law, and as a result, motorcyclist fatalities increased by 81%.

"Enacting universal helmet laws is the quickest and most effective method to increase helmet use and reduce motorcyclist head injuries and fatalities." -GHSA