Florida Injury Lawyer Blawg

Published on: May 8, 2012

Wrongful death caused by the negligence of a boat operator

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:

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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Published on: May 3, 2012

The injustice behind “Stand your ground” Law

By Leesfield & Partners

Written by Ira H. Leesfield – Article Published in the Daily Business Review

Florida’s “STAND YOUR GROUND” law not only distorts criminal justice for the victims of this special interest statute, it essentially eliminates civil liability for acts of aggression which would otherwise be compensable in the civil justice system. With the unnecessary death of Trayvon Martin last month in Sanford, the State of Florida is once again at the forefront of national and world attention. This time, it is not ‘hanging chads” which have made Florida the most curious state in the country. Now it is the “kill at will and with impunity” law that has erupted in international skepticism.

The law, Florida Statute Section 776.012, allows individuals to use deadly force if they reasonably believe it is necessary to prevent death or great bodily harm. It embraces a subjective standard, often with no witness or victim testimony. Such force was once only permitted inside one’s home (“castle”). But Florida’s legislature, lobbied relentlessly by the National Rifle Association and other “law and order” groups, in 2005, changed the law. Now, individuals no longer have a duty to retreat from danger but instead have a license to kill when they feel threatened with serious injury.

There is no question that the law has created unintended consequences over the years as perpetrators have been encouraged to escalate dangerous confrontations and take the law into their own hands. According to the Florida Department of Law Enforcement, the number of “justifiable homicides” in Florida has nearly tripled since the law passed. The Trayvon Martin case is one in a long line of cases where the “Stand Your Ground” defense could immunize a suspect for a highly questionable homicide.

The media frenzy surrounding “Stand Your Ground” has focused on criminal prosecution. But the law has a substantial and detrimental impact on civil claims for wrongful death and personal injury as well. One only need to recall the O. J. Simpson criminal acquittal followed by the guilty verdict in the civil case. Generally, an action for civil damages does not depend on the defendant being convicted in criminal court because civil cases have a different burden of proof. However, under “Stand Your Ground,” there can be both criminal and civil immunity, and therefore, insult is added to injury with no accountability for civil damages. What does this mean for the families of Trayvon Martin and others who were gunned down under unwitnessed suspicious circumstances? Must the “Stand Your Ground” defense fail in criminal court before a civil action may be pursued? Does the finding of immunity in criminal court bind the civil court?

Florida law complicates the issue, and there are currently no reported court opinions applying civil immunity in “Stand Your Ground” cases. However, civil court judges may be implored to apply a criminal court’s finding of immunity.

In 2010, the Florida Supreme Court held that in criminal cases, a judge, not a jury, should determine whether the defendant’s conduct was justified under “Stand Your Ground,” and the defendant has the burden of proving his entitlement to immunity by a preponderance of the evidence. In doing so, the Supreme Court removed perhaps the most crucial factual inquiry from the civil jury: whether the defendant’s conduct was “reasonable.” If the criminal judge finds that the defendant is immune from prosecution at an evidentiary hearing, the civil judge in a subsequent case for damages might feel compelled to consider the immunity issue previously adjudicated closing the door on the civil case. Unfortunately, the criminal judge who made the initial finding of immunity might not have known that he was also preventing a civil remedy for the surviving family in a subsequent wrongful death action. Even worse, §776.032, Fla. Stat., includes harsh provisions requiring the civil plaintiff to pay attorneys fees and costs incurred by a defendant who is found to be immune. This deters injured parties from even testing the legal theory.
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Published on: April 10, 2012

Rivera May Have Been Intoxicated in Wrongful Death Accident of Alanna Demella

By Leesfield & Partners

On March 18, 2012, Alanna Demella was tragically killed at the Riverside Hotel when a car driven by Rosa Maria Rivera crashed into the hotel’s pool cabana built only a few feet away from the roadway.

We previously reported on this terrible accident here: Resort Death of Pregnant Woman Challenges Leesfield & Partners

The Police investigation is still ongoing and, to date, very little information has been released to the public. In the last 72 hours however, we have learned that the Police is looking into Rivera’s potential driving under the influence at the time of the accident. Rivera admitted to the investigators that before the accident, she was with her husband at Mango’s Restaurant, less than two blocks away from where the accident occurred. She also admitted ordering appetizers and a alcoholic beverage. it is still unclear whether Rivera did drink her Martini.

What the investigation has revealed so far is that Rivera was in an angry state when she left the restaurant. Indeed, she told Police Officers that she left the restaurant because she had an argument with her husband. She claimed not having drunk the alcoholic beverage before sitting behind the wheel.

Witnesses to the accident did confirm that the car was going at a high rate of speed and Rivera must have lost control of her car as the only explanation why she drove her car straight into the cabana and why she failed to stay in her lane and make a light turn.

Regardless of whether Rivera was intoxicated at the time, there is no question that she was negligent for causing this accident and for taking the lives of Alanna Demella and her unborn child.

In our prior article (link above), we discussed the possibilities of Riverside Hotel’s negligence in this case. The cabana, as constructed, could have been too close to the roadway and may have been built in violation of rules imposed by the Florida Building Code.

Last week, a witness came forward and advised that there could be another potential defendant who contributed to this crash. From Mango’s restaurant to the scene of the accident, Rivera drove through the intersection of SE 4th Street and SE 8th Avenue. Said intersection did not have any traffic controlling devices such as a 3-way stop sign. In fact, vehicles traveling eastbound or westbound on SE 4th street did not have to stop at all while crossing that intersection.

Only months prior, that intersection was equipped with two additional stop signs (eastbound & westbound) but for some unknown reason, the traffic signs were removed. On the photo (right) you can still see the darker shade of paint covering the “stop lane”. The reasons for the removal of the stop sign is purely speculative at this stage. However, from inspecting the scene, it is very understandable why a stop sign was there in the first place.

Vehicles traveling westbound on SE 4th Street do not have to slow down before the light right-hand turn at the Riverside Hotel. The danger created by the absence of traffic control devices, such as a stop sign, is compounded by the peculiar absence of any signs alerting drivers that the roadway turns to the right. In fact, there are no markings on the pavement, and there are no traffic signs. A thorough investigation would help to show whether such lack of traffic signs and signage on the pavement of the roadway played a role in Rivera’s failure to make the turn and her car crashing into the hotel’s pool cabana.
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Published on: March 26, 2012

Fontainebleau hotel security questioned after two sexual assaults in four days

By Leesfield & Partners

Miami Beach Police Department are currently investigating two cases of sexual assaults that occurred last week at the Fountainebleau. As crucial a priority security in hotels, motels and resorts in Florida should be, our negligent security lawyers and inadequate security attorneys’ experience indicates security in hotels is severely lacking and more often that not contributes to guests becoming victims to sexual assaults.

Over the last four days, two guests staying at the Fountainebleau were sexually abused and assaulted. The first victim, a 23 year-old woman, returned to her hotel room and fell asleep on her bed when she was awaken by a naked man who was laying on top of her. The woman fought the man off and screamed for help. The assailant took flight and the victim ran to her sister’s guest room next door and called for help.

Investigators of the Miami Beach Police Department reviewed the surveillance camera footage and had sufficient evidence to arrest the alleged assailant, Rafael Munguia, 26, who was also staying at the hotel at the time. The surveillance footage showed Munguia leave the victim’s hotel room naked and run to his own hotel room. On the evening of the assault, the Police arrested Munguia on charges of rape, and he confessed to raping the young woman less than 24 hours later.

The second assault occurred by the pool area of the Fountainebleau. At around 2am, the victim’s boyfriend left the victim by herself for less than a half hour. When he returned, he saw a man on top of his girlfriend. The subject had his pants down and was physically grinding on the woman in a sexual manner. Two hotel employees witnessed the male subject run off the hotel’s property wearing nothing but a pair of underwear and carrying clothes in his hands.
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Published on: March 22, 2012

Resort Death of Pregant Woman Challenges Leesfield & Partners

By Leesfield & Partners

On Sunday March 18, 2012, Alanna Demella, 26, from Medford, Massachusetts, was tragically killed while on vacation in Ft. Lauderdale when an out-of-control vehicle traveling on a nearby roadway, slammed through a fence and crashed into the Riverside Hotel’s cabana building where Alanna was changing at the time. She was seven months pregnant and her husband was just feet away when the awful collision destroyed two support pillars and a wall of the cabana, taking the lives of the young woman and her unborn son.

While at first blush this horrific resort-related death seems like a freak accident and the unfortunate luck of being at the wrong place at the wrong time, the causes of the accident certainly are not yet fully established. From a Personal Injury/Wrongful Death lawyers standpoint, the investigation as to the causative factors is much wider than just looking at the fault of the driver and her negligent operation of the vehicle. As is often the case in Florida, people carry minimal automobile insurance or sometimes none at all. Even someone with full coverage does not likely have enough in policy limits to cover the tremendous damages that this case would entail. Therefore for the Personal Injury/Wrongful Death lawyer, it is crucial to act as quickly as possible to preserve the scene and gather evidence than may no longer exist if left in the hands of nature or potential defendants. There may be other responsible parties that could have prevented this foreseeable incident. For example if there were prior crashes in the area or if the building structure was unsafe and building codes, permits and standards were violated. That is why it is of the utmost importance for the grieving family to act promptly in retaining counsel who specializes in these types of cases. Especially where the victim’s relatives are from out of state. This will allow for the family to put the work in the lawyer’s hands while they tend to the grieving process.

Leesfield & Partners is one of the leading resort tort law firms in Florida. Our Resort Tort attorneys have helped countless out-of-state clients who were victims of resort-related incidents similar to the ones the Demella family is now sadly involved in. While Florida in general, and South Florida in particular, is a very popular destination for tourists, incidents do occur with frequency. Consequently, Ira Leesfield helped creating and currently serves as Chairman of the Resort Tort Litigation Group of the American Association for Justice (AAJ).

The first thing that should be done immediately in a case like this is an inspection of the resort property, impact area and vehicle. At Leesfield & Partners, our team of lawyers, investigators and experts are on call seven days a week. We will go to the scene to take photographs and canvas the area for possible witnesses in order to take statements. We will also act quick to contact law enforcement and other investigating agencies to obtain and exchange information. A scene inspection must be conducted with an accident reconstruction expert to establish the speed and direction which the driver was traveling when she collided with the fence, and then the pillars. Properly reconstructing the accident and understanding the facts, can lead to other viable theories of causation.

Another issue that must be investigated locally is whether the Riverside Hotel was in compliance with the Florida Building Code and whether the cabanas, as built, had been inspected and approved by the Division of Professions Building Code Administrators and Inspectors Board. A full report of prior investigations and reports must be obtained to make sure that the construction of the cabanas were in fact legal and compliant with the Florida Building Code. A building code expert must be hired to not only review the findings of those reports, but to establish whether one or multiple violations existed which may have contributed to the destruction of the two pillars that held up the hotel’s cabana building. One other important area that must be looked into is whether the proximity of the cabana building to the roadway played a part in the cause and severity of the crash and whether the cabana building’s location was in compliance with the many building code set back rules and regulations Continue reading

Published on: February 17, 2012

Critical Injuries to Two Car Occupants in a Collision with 18-Wheeler

By Leesfield & Partners

A life-altering collision for at least 2 young women occurred this morning at approximately 2:30 a.m. on Coral Way and SW 84th Avenue in Westchester, Florida, when their vehicle collided an 18-wheeler tractor trailer, driven by Larry Donell Robinson.

Larry Robinson was lucky to walk away from this accident without a scratch, but sadly for the occupants of the white Honda Accord, they all were rushed to Kendall Regional Medical Center.

We have since learned that the driver of the Honda, Alexandria Estrella, 23, and Ana Posada, 18, are in critical conditions and still fighting for their lives. The other three passengers identified by police as Jovanni Oliva, Anthony Emmanuel Del Rio, and Moises Arnold Alvarez were also injured, but not critically.

Published on: February 14, 2012

Lawsuit Filed against Parasail Operator in Wrongful Death of Cruise Passenger

By Leesfield & Partners

On November 15, 2011, Celebrity Cruises Passenger Bernice Kraftcheck boarded the Turtle, a small boat owned and operated by Caribbean Watersports & Tours, a corporation based out of the U.S. Virgin Island, which offers parasailing excursions through Celebrity Cruises.

After the two cruise passengers boarded the Turtle, the weather became more and more menacing as the winds picked up in intensity and a heavy cluster of low clouds formed above the small bay where the parasailing experience was to take place. Despite the changes in weather and the dangerous windy conditions, the operator decided to launch Bernice and Danielle into the sky.

Moments later, as Bernice and Danielle were high up in the sky, the operator’s parasail rope broke, causing the tandem to plummet from the sky into the water. While Danielle sustained massive and catastrophic injuries, her mother Bernice sustained serious fatal injuries, eventually resulting in her death.

Read our earlier post on this accident here: Celebrity Cruises Terminates Parasail Excursion After Death of Passenger

Leesfield & Partners has filed a wrongful death lawsuit against Celebrity and against the parasail operator for their respective failures and acts of negligence. A copy of the complaint filed today in Federal Court can be obtained by clicking here.

For any media inquiry, please contact Ira Leesfield by email or by phone at 305-854-4900.

The parasailing accident attorneys of Leesfield & Partners are nationally recognized for handling similar catastrophic parasailing accident cases in the past.

Within the last five years, Ira Leesfield represented two minor sisters who also plummeted from the sky after the rope of the parasail broke off due to bad weather. One of the two sisters sustained severe permanent physical and emotional injuries. The other sister was fatally injured and despite the doctors’ efforts to keep her alive on a ventilator, she ultimately died after being in a coma for two days.

This case received national exposure with appearances on The Today Show and Inside Edition. In that case, the operator of the parasail decided to disregard weather warnings sent out over the radio to boaters and to ignore the increasingly menacing clouds and powerful winds. As soon as they were in the air, the two girls, as shown in the photo above, were dangerously close from the shore and the nearby buildings. The winds were so intense that the small boat pulling the parasail was almost beached. Ultimately, the winds were too strong for the subpar equipment, and the rope broke off, sending the two girls flying against the buildings behind them. They were uncontrollably catapulted from one building’s roof to another, before falling almost 40 feet to the ground where they were rescued by horrified witnesses.

In a more recent case handled by Thomas Scolaro, a young wife and mother sustained severe facial injuries and closely escaped losing her life by drowning after the parasail operator decided to send her up on the parasail in the middle of a forming storm, despite other owners shutting down their parasail operations at the same time.
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Published on: February 10, 2012

Jack3d Dietary Supplement Investigated by the US Army in the deaths of two soldiers

By Leesfield & Partners

Within months of each other, two soldiers, 22 and 32 years-old, died while participating in on-base fitness exercises with the rest of their respective platoon. Autopsies performed on both servicemen revealed the presence of dimethylamylamine (DMAA) in the toxicology reports, according to an Army spokesman. There have been additional mentions of DMAA in situations involving at least five other servicemen (3 soldiers and 2 Marines) who collapsed during heavy military exercise.

In recent years, the body-building community and the military community have seen an exponential increase in dietary supplement consumption. The largest selling product is Jack3d (pronounced “Jacked,”) manufactured by Dallas-based company USPlabs. Products like Jack3d contain DMAA, which is an ingredient the manufacturers advertise increases energy, concentration, and metabolism. Given the popularity within the military community, DMAA-based products like Jack3d were sold at on-base stores like GNC.

That changed in December 2011 after the Defense Department ordered an end to on-base sales of DMAA-based products sold as dietary supplements, including Jack3d. The ban was put in place immediately after the military concluded that the potential common denominator in the deaths of two soldiers and the collapsing of five additional servicemen was the consumption of DMAA products. The Defense Department ordered the temporary ban to investigate whether Jack3d and other DMAA-based products played a role in these mentioned incidents, and to determine if they are essentially safe for consumption.

Published on: January 30, 2012

Sexual Assaults of Hotel Maids due to Lack of Security

By Leesfield & Partners

In light of the sexual assault allegations levied against International Monetary Fund Chief Dominique Strauss-Kahn, the security and lack of protection of chamber maids have become front and center in the recent months.

In New York, Assemblyman Rory Lancman introduced the Hotel Worker Protection Act, which aims at imposing on to the lodging industry to equip hotel employees, specifically maids, to carry a panic button at all times that would essentially alert hotel security in case of an emergency.

Leesfield & Partners has litigated and been involved in numerous cases where female hotel employees were physically assaulted and battered as well as sexually assaulted and raped. Recently, Attorneys at the firm represented a young woman who was brutally assaulted and raped in a hotel room that she was cleaning at the time. After several months of litigation, the defendant hotel reached a settlement with the young woman. The hotel’s liability was established when attorneys showed evidence of lack of hotel security which had allowed a vagrant to spend the night on the hotel’s premises without being seen or removed from the property. The vagrant was them allowed to roam in and around the hotel until he walked into the hotel room that our client was cleaning.

If the new proposed legislation becomes law in New York, it is reasonably likely that other states will follow. The State of Florida has a particular interest in protecting hotel employees because of the large revenues generated by Tourism, one of the biggest sources of revenue for the state. On average, there are over 80 millions of visitors to the State of Florida, which brings almost $20 billions to the state-wide economy.

A version of the bill introduced by Roy Lancman, if introduced in the State of Florida, would be judicious for the lodging industry to support to show its concern towards hotel employees’ safety and security. It would also act as another deterrent, beyond the presence of security guards in hotels.
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Published on: January 26, 2012

Bus Passengers Injured in Collision with FedEx Truck

By Leesfield & Partners

On Tuesday, January 24, 2012, at the intersection of Northwest 17th Street and 7th Avenue in Miami, Florida, a FedEx truck collided with Miami-Dade Metrobus Route M.

At the time of the collision, 30 passengers were on the bus. Among them, a 16-year-old girl who was riding the bus in a wheelchair. Lt. Ignatius Carroll of the City of Miami Fire Rescue told reporters that first responders were very concerned about the teenage girl, not knowing what condition she was in before the collision and obviously bracing themselves for the worst outcome. But thankfully, “as we started assessing patients inside the bus, we found that more people were complaining about injuries and that turned into a Level 2” added Carroll.

Injured Passengers were transported to Doctor’s Hospital, Jackson Memorial Hospital, South Miami Hospital and Mount Sinai Medical Center.

Florida Law is very clear.
Statute §316.075 Traffic control signal devices
Vehicular traffic facing a steady red signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until a green indication is shown;

After the injured were cared for, the police assessed the cause of the collision and determined that the driver of the FedEx truck failed to stop at the red light of the intersection. Unable to stop his truck, the driver could not avoid slamming into the passenger-loaded bus resulting in several people being injured.
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