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Ashton Jojo, an 11-year-old guest at an Orlando / Kissimmee Resort with her parents and young brother, died on Wednesday after she attempted to retrieve her golf ball from a pond while playing miniature golf.

As soon as the young Ashton reached inside the pond to get her golf ball, “she screamed as if she was in distress” said the Orange County Sheriff’s Office in a released statement. Christopher Burges, also a guest at the same resort, rushed to the rescue of the little girl when he heard the screaming, but as he grabbed the girl’s arm, he too became injured, and was unable to save her. Ashton was rushed to Celebration Hospital in Kissimmee where she later died.

Orange Lake Resort.jpgAshton’s family, from New York, was in Central Florida on vacation, where they celebrated Ashton’s eleventh’s birthday last Friday. Another witness to this tragic event told reporters that one of the Resort’s employees mentioned that the electricity to the pond may have had a “short”. By the time EMS arrived on the scene, the 11-year-old was not responding. The grandmother of one of Ashton’s friends spoke to reporters and said the girls asked her to go golfing with them, and she regrets saying no. “I wish to God that I would of gone because I might of made a difference and I’m going to have to live with that.”

The investigation is still ongoing and Deputies of the Orange County Sheriff’s Office have not confirmed the cause of death. If electrocution turns out to be what caused young Ashton’s death, this incident will be yet another resort tragedy that could have been avoided.

Resort tort incidents occur every year in Florida, whether in Orlando / Central Florida, or in Miami or the Florida Keys, in South Florida. Throughout the state of Florida, Leesfield & Partners have represented countless victims of acts of negligence attributed to resort employees. Recently, Thomas Scolaro settled a claim against a Time-Share / Central Florida Resort for injuries one of its guests sustained while she was using a jacuzzi. Due to some electrical malfunction, the suctioning system of the tub began to pump unexpectedly and caused catastrophic spinal damage to a healthy young woman.
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Last month, Karla Marie Ortiz was riding an All-Terrain Vehicle (ATV) on an unpaved dirt roadway. According to FHP’s report, the 11-year-old attempted to cross lanes when the vehicle traveled over a severely uneven area of the roadway. The child lost control of the 500-pound four-wheel vehicle, which caused the ATV to buckle and overturn. Karla Ortiz was ejected. She was rushed to North Collier Hospital, but was pronounced dead later that day. The 11-year-old was not wearing a helmet at the time of the incident.

ATV 16 Warning Ex. 4_resize.JPGThis new tragedy is sadly all too common. Every year, hundreds of children die in ATV accidents and the legislators have done nothing but stand by the ATV manufacturers’ lobby. In the span of 10 years (2000-2010), there have been 1,394,000 trips to Emergency Rooms to treat for injuries sustained in ATV accidents. There have been 404,800 visits to the ER for injuries sustained by children aged 16 or younger. Of all injuries stemming from an ATV accident, 30% concern children that are 16 or younger. More troubling, 1 out of 5 deaths caused by an ATV accident is of a child aged 16 or younger.

In the large majority of children’s death resulting from the use of an ATV, the child was not wearing a helmet. This latest disaster is no different.

Litigation surrounding the use of ATV’s has been ongoing ever since the manufacturing of these vehicles started. In the 1990s, Ira Leesfield engaged in all-terrain vehicle litigation throughout the United States resulting in over $10 million of verdicts and settlements on behalf of seriously injured youngsters, many of whom received ATV’s and other recreational vehicles as holiday gifts. At the time, the main issue was not just the inherent danger of these vehicles, but the fact that parents gave ATV’s to children who were too young, too light, and too inexperienced to handle the power of these vehicles. Early on, ATV’s were marketed by major manufacturers as “toys” with deceptive information in the promotional literature.

ATV Ad.jpgIn the 2000s, while ATV’s are not longer marketed as toys per se, they are still marketed towards parents and children, as depicted on the right. This has resulted in a spike in ATV-related accidents and deaths in the last decade, a large portion of which were of children 16 and younger.

Stricter Regulations?

Nothing can be done uniformly because ATV’s fall outside of Federal Highway Safety regulations. Each state is in charge of regulating the use of ATV’s on their respective roads. As such, states have set different standards such as the required safety equipment, whether an operator must have a specific license, the number of allowed passengers, and the minimum age of the driver.
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The legal responsibility of a Florida driver involved in an accident causing injuries or death is extremely straightforward as provided by Florida Statute 316.027 – Crash involving death or personal injuries:

(1)(a) The driver of any vehicle involved in a crash resulting in injury of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash . . . . Any person who willfully violates this paragraph is guilty of a felony of the third degree. . . .

(b) The driver of any vehicle involved in a crash resulting in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash . . . . Any person who willfully violates this paragraph is guilty of a felony of the second degree . . . .

hit-run.gifIn Florida, a hit-and-run causing injury is a felony of the third degree which is punishable by a term of imprisonment not exceeding 5 years, and a hit-and-run resulting in the death of the victim is a felony of the second degree punishable by a term of imprisonment not exceeding 15 years (Florida Statute 775.082).

Gabriel Amaya, a 17-year-old boy, who was riding his bicycle at the crosswalk of Powerline Road and Prospect Road in Oakland Park, was killed last week by a car that slammed into the teenager’s front tire. Gabriel was thrown off his bike and laid motionless on the asphalt. The driver of the car sped off, then stopped and exited his car, before walking right back into his vehicle and fled the scene for good.

Despite the best efforts of the medical team at Broward Health Medical Center, the young boy was pronounced dead later that day.

Broward Sherrif’s Office, investigating the crime, has limited information about the driver or vehicle involved in this incident. They are currently looking for a vehicle with damage to the left, front headlight, grill and side mirror. BSO is encouraging witnesses to come forward and contact the detectives with any information at 954-321-4845.
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Florida law provides that every car insurance company must provide $10,000 in PIP benefits to its insured – Florida Statute 627.736(1). For the past few years, the Florida legislator has made multiple attempts to reform the use of Personal Injury Protection benefits, and prevent further abuse, n order to continue the crackdown on PIP claims fraud which are at an all-time high.

How do PIP benefits work?

When a person is involved in a car accident, and sustains an injury that requires any kind of medical treatment, that person’s car insurance will reimburse (at an established rate) the medical bills incurred to treat them. Through PIP, car insurance companies are required to pay for medical treatment (as well as lost wages if applicable), up to $10,000. Once the PIP benefits are exhausted, the insured becomes responsible to pay for their own medical bills, either through their own private health insurance or out of pocket if they are uninsured.

PIP Fraud claims skyrocketing in Florida

Division of Insurance Fraud.jpgLast April, the Office of Florida’s Chief Financial Officer released staggering numbers indicative of a systemic-induced fraud. In the fiscal year 2010/2011, the Division of Insurance Fraud investigated 13,452 cases of insurance fraud, which ultimately resulted in 997 arrests and 804 convictions. In only one year, Florida Courts have ordered restitution amounting to more than $156 million to defrauded insurance companies.

The Florida Division of Insurance Fraud regularly issues a newsletter “The PIP Source” which summarizes the latest scams and arrests in PIP fraud cases. The latest edition can be downloaded here.
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It seems like every single year, a food borne outbreak occurs in multiple states around the country that leaves avid restaurant-goers and supermarket chains scrambling to find out what caused the latest epidemic. Again this year, the Centers for Disease Control and Prevention (CDC) has announced last week that a new E. Coli outbreak is currently underway and related cases have been identified in six States so far: Alabama (2), California (1), Florida (1), Georgia (5), Louisiana (4) and Tennessee (1).

EColi_resize.jpgThus far, officials have yet to identify the product responsible for this latest round of food poisoning. The level of emergency was raised to an all-time high when Maelan Elizabeth Graffagnini, a 21-months-old infant died in New Orleans. Officials announced that the young child died from complications of E. Coli O145. (one of six types of shiga toxin-producing E. coli).

Florida residents have not been spared by these latest headlines and while the risk of contracting the latest food born bacteria is relatively low, Floridians should constantly remain careful about what and where they eat, in particular, South Floridians.

According to the Florida Division of Hotels and Restaurants, South Florida has received more restaurant violations than anywhere else in the State. The cities of Miami, Fort Lauderdale, and Boca Raton, rank in the Top 10 violating cities in the last 12 months. Miami leads the way with 37,048 violations alone this past year. Put all three cities together, and South Florida restaurants are responsible for more than 54,000 violations in one year, which represents more than a third of all violations among the top 10 violating cities.

As mentioned above, the city of Miami is the worst violator of all, with over 100 new violations each day on average. The consequences for consumers is usually mild symptoms of food poisoning, a long night of indigestion and a groggy feeling the next 48 hours. Unfortunately, in some instances, the result can be a lot more tragic, as we recently found out.

chimichanga.jpgLeesfield & Partners has represented several victims of food poisoning and settled multiple claims, but none of them were more tragic than the most recent incident. A young woman of 32, a mother of 2 young children aged 2 and 14, picked up a beef chimichanga with salsa, guacamole, lettuce, cheese and chips one evening at a popular Mexican restaurant in Miami.

She ate her dinner and went to bed that night feeling fine, but she woke up violently ill sometime between 2 and 2:30AM. For the rest of the night and through the entire next day, she experienced symptoms of food poisoning, including vomiting, sweating, nausea, cramps, chills, and diarrhea. She was so sick that she could hardly get herself out of bed. Early that morning, a family member saw her go to the bathroom to throw up yet again. They spoke and they both agreed at that she ate something bad from the Mexican restaurant. A few hours later, she decided to report the restaurant to the Health Department, and filled out an online complaint form.
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A landowner owes two duties to its business invitee: (1) he must use reasonable care to keep his premises in a reasonably safe condition; and (2) he must give the invitee warning of concealed perils which are or should have been known to him, and which are unknown to the invitee despite the exercise of due care. Furthermore, a landowner is liable for injuries caused by inadequate lighting in that the lighting failed to show the true size, shape, and height of curbing over which patron tripped.

Recently, Leesfield & Partners resolved a personal injury claim on behalf of a Canadian tourist who sustained massive facial injuries when he tripped and fell face-first on the corner of a sidewalk in Palm Beach County. The incident was caused by the lack of illumination, which at the time, should have been in operation.

A local ordinances provides in part that minimum-maintained lighting shall be provided from dusk until thirty (30) minutes after the termination of business each operating day. According to records from the ambulance company and testimonies gathered from the witnesses, the incident occurred well after duck, at a time where multiple lighting poles should have been in operation. There were not.

dark-parking-log.jpgAs a result, this Canadian tourist, who was unfamiliar with the premises at dusk, tripped over an unlit obstacle and fell forward. He sustained multiple fracture to his nose and orbital bone which have caused life-altering and debilitating changes in his life, and personality. This claim was recently resolved before trial for $262,500.

The aggressive representation by Leesfield & Parters allowed to establish multiple failures on behalf of the defendant owner including:

  • Failure to provide adequate lighting to the premises so as to ensure the safety of business invitees
  • Failure to inspect the premises regularly and to maintain the premises so as to protect business invitees from encountering dangerous and hazardous conditions
  • Failure to inspect the lighting and lighting poles of the premises regularly
  • Violation of multiple local ordinances and Florida Statutes requiring minimum0maintained lighting at certain hours of the day

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The State of Florida has the highest number of traffic fatalities in the United States, behind California and Texas. Of those three states however, Florida has the highest ratio of fatal accidents per citizen, according to the United States Census Bureau, 2012 Statistical Abstract.

On average, there are over 2,800 fatal accidents occurring on the roads of Florida, and by the numbers, the most dangerous roads are in South Florida, specifically in Miami-Dade, Broward, Palm Beach, and Monroe County. Between these four counties, the number of fatalities caused by traffic accidents represents 25% of all fatalities in the entire State of Florida. Statistics are available here.

Thankfully, the latest horrific accident that occurred on June 7, 2012, at approximately 4 a.m., in Broward County, did not contribute to those statistics. Mike Jachles, Broward Sheriff Fire Rescue Spokesman, said that the two men involved in the terrible crash on U.S. 27 were “very lucky to be alive.”

Rafael Ferrer Rodriguez was traveling southbound on U.S, 27, just north of Griffin Road, when he began to worry that his truck may have a flat tire. Rodriguez slowed down, moved his truck off the shoulder of the road, and stopped the large vehicle short of the grassy slope, with about half of the truck still on the paved roadway. He got out of the truck’s cabin and walked to the back of his truck to put a warning triangle on the road in order to alert the oncoming traffic of his presence.

truckcrash_resize.jpgAll of a sudden, before Rodriguez could place the emergency signal, Jose Soto Perez, who was also driving a large truck and traveling southbound at the time, struck the left side of Rodriguez’s parked trailer, causing both trucks to erupt in flames on impact.

Rodriguez was hit by his own trailer but only sustained minor injuries, while Perez was able to escape from his truck’s destroyed cab before the flames could reach him. Perez’s dog, who was in the driver’s cab when the accident took place, was also able to escape with his owner, but, disoriented, the dog was struck and killed by another vehicle who was traveling on U.S. 27.

While the Broward Sheriff’s Office has yet to issue a citation for this incident, most of the responsibility for causing this accident rests on Rodriguez’s actions when he failed to park his truck completely off the roadway, especially in the middle of the night. it is unclear whether Rodriguez turned on his flashing lights before he stepped out of the truck’s cab.
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Last week we reported on the ongoing criminal trial of Aaron Deveau in Massachusetts. Today, the 18-year-old was found guilty of vehicular homicide, and causing a fatal traffic accident while texting on his cell phone. This landmark case is the first time in the state of Massachusetts that such charges have resulted in a conviction. Found guilty, Deveau was sentenced to 2 1/2 years behind bars, and will serve one additional year in jail.

deveau_accident.jpgOn the day of the accident, the teenager had sent and received 193 text messages. Deveau faced a maximum sentence of four years. He was also sentenced to 40 hours of community service, as well as having to surrender his driver’s license for 15 years.

After the accident, Deveau deleted several text messages from his phone, but investigators were able to ascertain that the teenager was driving and texting at the same time through their forensic research team.

This tragic incident caused the death of 55-year-old Donald Bowley Jr., who left 3 children behind, and catastrophic injuries to the two other occupants in Bowley’s vehicle.

deveau trial.jpgIn convicting Deveau, the State of Massachusetts has made an example of this case for all the citizens of Massachusetts who continue to text while driving, even though it has been a violation of the laws of Massachusetts since the year 2010. Even though Deveau showed remorse and regret when he said in open court that he wished he could “take it all back”, before apologizing the to Bowley family, District Court Judge Stephen Abany realized that this case needed an exemplary sentencing.

When sentencing Deveau, Judge Abany said that deterrence “really seems to come to play in this case,” and “[p]eople really want to be safe on the highways.” People need to “keep their eyes on the road, keep their eyes on the road,” he added.
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Aaron Deveau is currently on trial, facing criminal charges including motor vehicle homicide by negligent operation, negligent operation of a motor vehicle, being an operator under 18 using a mobile phone, being an operator reading or sending an electronic message, driving over marked lanes, and two counts of negligent operation and injury from mobile phone use.

This Massachusetts criminal case could be the first landmark case in the controversial topic of texting while driving, after the 17 year-old-teenager, Deveau, collided head-on with a pickup truck on Feb. 20, 2011, and killing 55-year-old Donald Bowley.

Had this accident occurred in Florida, Aaron Deveau would be freely walking down the streets of the Sunshine State with the comforting knowledge that he will never face criminal charges. The victim’s family on the other hand would only have a civil remedy against the negligent teenager.

In 2010 the state of Massachusetts has passed a law banning the use of mobile phones while operating a motor vehicle. A contrario, Florida is one of only six states in the country which continuously refuses to ban the practice of texting and driving. In fact, this year marked the 7th year in a row that the Florida legislature could have voted on a total or partial ban of the use of handheld mobile phones while driving and adjourned without producing a single distracted driving law.

Map of USA - Texting and Driving Ban.jpg

Image above courtesy of the Insurance Institute for Highway Safety

Ira H. Leesfield, as Senior Managing Partner of Leesfield & Partners, has continuously been an advocate in favor of a total ban of the use of mobile phones when driving a motor vehicle. Recently, Ira Leesfield highlighted the main concerns and legal theories under which plaintiffs could attempt bringing civil cases against negligent drivers who caused injuries while using their cell phone: Driving + Cell Phones = Bad Call.

In an article published in the Miami Herald, Texting and driving a costly business risk, Ira Leesfield warned the corporate world of the dangers of having employees driving and using their cell phones. In 2007, an article published in the American Bar Association’s The Brief, Tort Trial & Insurance Practice Section, in which Ira Leesfield analyzes and discusses remedies and tactics for handling motor vehicle collision cases arising from cell phone use and distractions. This article can be downloaded here.
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A boat operator has the duty to operate his or her vessel in a reasonable and safe manner and the duty to the public to exercise reasonable care in the use, operation, and control of the vessel.

The “reasonable care” standard is not singular to the State of Florida, and it generally applies, in one form or another, in all of the other states throughout the country. It will be a central issue in the civil case that will soon begin in Pennsylvania after these events took place on July 7, 2010 in the Delaware River:

 
https://www.youtube.com/watch?v=Lj91iqGKEPc
 

Leesfield & Partners has a long standing history in representing families of victims who lost their life or were catastrophically injured by the negligence of a boat operator. Recently, Ira Leesfield and Thomas Scolaro resolved a tragic case where a young child who was snorkeling with his family was killed when he was hit and ran over by a high horsepower motorboat operated by a teenager.

Despite the duty of reasonable care, the teenager was reckless in his operation of the boat and was the sole reason for causing this horrific incident. In the ensuing claim, the complaint alleged multiple violations of the law by the operator of the boat, including the following violations:

– Failure to operate the subject motorboat at a safe and reasonable speed;
– Failure to keep a safe and proper lookout while operating the subject motorboat;
– Recklessly operating the subject motorboat at an excess speed under the conditions;
– Failure to use caution in the operation of the subject motorboat when approaching snorkelers with a divers down flag;
– Failure to use caution in the operation of the subject motorboat when approaching snorkelers, divers, swimmers and other boaters;

Leesfield & Partners is one of the leading personal injury firms to handle boating and maritime accidents. Established over 35 years ago as a Key West and South Florida trial lawyers, this firm has tried many cases in Key West. Leesfield & Partners has obtained the largest verdict in Monroe County’s history.
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