Posts Tagged ‘auto accident mediation’

Mediating Negligence Cases – Use of Cell Phone While Driving – Punitive Damages

Posted on: February 24th, 2014 by southfloridamediator
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The recent number of cases involving use of cell phones while driving has given rise to concerns over whether punitive damages may be awarded to the injured party.

Since 2010, there were several decisions involving a claim for punitive damages.  However, there may be a divergence of views among the counties in Florida.  Although some states permit punitive damages to be awarded, Florida’s courts will only permit a claim for punitive damages in the most egregious case.

So it has been held in Broward and Collier counties that punitive damages may be claimed where a driver was texting on a cell phone while driving and a collision occurred.  It may be a factor in an action against the driver’s employer, that there was a policy in place that prohibited cell phone use while driving.

The mediator must be aware of the law in the jurisdiction where the action is pending.  It may be of extreme importance in a case involving multiple parties.

For more information on mediation services in South Florida contact Stanley Weissman at (561) 994-4540.

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Mediation of Chain Reaction Accidents – Sequence of Events Part I

Posted on: February 13th, 2014 by southfloridamediator
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The mediator must be aware of the law relating to a chain of events which cause injury.  Each fact situation must be carefully analyzed by the mediator in order to assess liability.  Then the mediator will have a better understanding of the position of each party.

In chain collision accidents, the basic rule is that a driver who causes the initial accident is liable where his conduct sets in motion a chain of events resulting in injury down the line.  It is enough that the resulting injury is within the “scope of risk” created by the original tortfeasor.  For example, where one stops his car in the middle of a multi-lane highway, a reasonable person would have to conclude that such conduct creates a risk that other cars may collide as a result of trying to avoid hitting the stopped car.

In another fact pattern, a plaintiff was injured by a thief who stole a vehicle. The rental car company employee who negligently left the keys in the ignition could be liable for making the vehicle accessible to the thief.  This set in motion the chain of events which led to plaintiff’s injury.

Where a bicyclist was killed when he swerved into traffic while avoiding a defect in the bicycle path, the county was held liable for negligently failing to maintain the bicycle path.  Plaintiff’s own negligence does not abrogate the claim of causation arising from the first event; it may only be used as comparative defense.  This rule also applies to the negligent installation of a burglar alarm (a home robbery was a foreseeable event that was not an intervening cause).  However, one must be aware that there my be instances where the original negligence is remote; the injury was caused by a superceding cause.

Go here to contact Stanley Weissman about his mediation services.

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Auto Accident Mediation: Rear End Collisions

Posted on: February 10th, 2014 by southfloridamediator
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A mediator must be aware of the law as it pertains to the type of case before him.  The most common cases involve personal injury litigation.  Of these, the most prevalent are auto accident cases.  Some recent decisions involving the “hit in the rear” fact pattern will aid the mediator in understanding the position of plaintiff and defendant.

Where plaintiff’s car is lawfully stopped and struck in the rear by defendant’s car, there is a presumption of negligence against defendant.  Unless the presumption is rebutted, the beneficiary of the presumption (plaintiff) is entitled to judgment as a matter of law.  This presumption arises out of necessity because the front driver is usually in a poor position to observe the conduct of the rear driver, and thus introduce evidence as to the cause of the collision.  Often plaintiff can offer no evidence against defendant, and the latter refuses to do so.

There are conflicting decisions as to what constitutes a rebuttal of the presumption.  In one case, defendant/front driver was talking on a cell phone at 45 mph, came to an abrupt stop over a blind hill.  Plaintiff/rear driver following 4 car lengths behind at 35 mph slowed approaching the hill but was unable to avoid the collision.  Rear driver’s damage claim was barred unless he can establish a complete absence of negligence on his part.  In another case (decided by a different Court of Appeals) a front driver going 35 mph stopped in traffic for no apparent reason.  It was held that a jury could find that the front driver’s actions were unreasonable and his negligence was at least one of the proximate causes of the collision.  This confusion was resolved when the Fla. Supreme Court held that the rearward driver need not establish complete lack of negligence on his part in order to rebut the presumption.  It is sufficient to show some degree of negligence attributable to the front driver.

Thus, the mediator must understand that rear end collision cases must be governed by principles of comparative fault.  Where a jury could conclude that the front driver was negligent and comparatively at fault, the presumption is rebutted.  The case will go to the jury without the aid of the presumption.

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