Author: CSG Firm

RECKLESS, CARELESS DRIVING & ROAD RAGE-WHAT ARE THEY IN FLORIDA

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In Florida, what are Careless Driving, Reckless Driving and Road Rage and what are the differences between the three?

Careless driving describes behaviors behind the wheel that can jeopardize the safety of others on the road, including other drivers, bicyclists, motorcyclists, and pedestrians. However, there is no intent behind the behavior to harm others.

While the exact definition of careless driving varies by state, in Florida it means the following (taken from Florida Statute §316.1925):  “Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. Failure to drive in such manner shall constitute careless driving and a violation of this section.”

Careless driving is a traffic violation that comes with hefty fines and points added to one’s license. So, how can someone prevent careless driving? It is simple; driving should be one’s only task when behind the wheel. Putting all other distractions behind them and staying alert in the driver’s seat can help to reduce the incidence of careless driving. Also, remember to follow the rules of the road, like stopping at red lights and stop signs and obeying the speed limit.

Careless driving may include things like:

  • Falling asleep at the wheel.
  • Using a cell phone or texting while driving.
  • Disobeying traffic signs.
  • Speeding.
  • Not using turn signals.
  • Illegal lane changes.

Reckless driving is a more severe violation than careless driving that involves intentionally driving in a way that may put other drivers in danger. Law enforcement officers may deem reckless drivers to have a “willful or wanton disregard” for human life and the safety of others on the road.

In many instances, distracted driving or driving while drowsy may be considered types of reckless driving, and the basis for this: distracted driving in recent years claimed over three thousand lives, while driving while drowsy caused over six hundred deaths for the same period.

Examples of reckless driving include:

  • Driving under the influence.
  • Speeding or driving too fast for conditions.
  • Drag racing.
  • Going around stopped school buses.
  • Driving the wrong way.
  • Texting while driving.
  • Failing to yield the right of way.
  • Weaving in and out of lanes.
  • Driving on the sidewalk.
  • Running red lights or stop signs.
  • Crossing a double yellow line on a highway.

In Florida, authorities describe road rage as “a motorist’s uncontrolled anger that is usually provoked by another motorist’s irritating act and is expressed in aggressive or violent behavior.” On the other hand, the National Highway Traffic Safety Administration (NHTSA) defines aggressive driving as “any combination of traffic offenses or general behaviors that endanger persons or property.”

Road rage is an extremely dangerous form of aggressive driving. In the worst cases of road rage, drivers may follow other cars home to physically confront someone, stalk other drivers, or intentionally collide with other vehicles. The NHTSA considers aggressive driving a traffic offense and road rage as a criminal charge.

Every driver occasionally becomes frustrated due to poor judgment of other drivers or traffic conditions. Road rage is when that anger persists and increases, potentially leading to catastrophic consequences. While young men appear to be most susceptible to road rage, it can affect people of any age or gender because anyone can take offense at what they think another driver is doing.

A few examples of aggressive driving and road rage include:

  • Yelling at other drivers.
  • Racing another vehicle.
  • Suddenly speeding up or braking.
  • Following too closely or tailgating.
  • Flashing lights.
  • Cutting off other vehicles.
  • Driving in forbidden areas, such as medians, sidewalks, or shoulders.
  • Passing where prohibited.
  • Weaving in and out of lanes.
  • Disobeying traffic signs or signals.
  • Angry, unnecessary honking.
  • Making an improper turn.
  • Excessive speeding.
  • Making threatening or rude gestures at other drivers.
  • Displaying a gun or another weapon.
  • Intentionally causing a crash.

While road rage is one type of reckless driving, reckless driving does not always include road rage. For instance, distracted driving, driving under the influence, and excessive speeding are types of reckless driving that may not involve road rage.

While an individual cannot avoid all encounters with people driving recklessly, there are some things one can do to limit their opportunities of getting into an accident with them:

  • Stay alert and be a defensive driver. Stay away from aggressive drivers when possible.
  • Do not engage with the driver. Give them sufficient room and avoid making eye contact if they are acting angry near you. Think about calling the police if it is suspected an aggressive driver is following.
  • Allow them to pass.
  • Put oneself in their shoes and try to understand why they are driving poorly. Do not take their behavior personally.
  • Do not offend aggressive drivers by tailgating, driving slowly in the left lane, cutting them off, or obscene gesturing.
  • Remain calm.

If a driver, pedestrian, motor cyclist or bicyclist has been in a motor vehicle accident caused by a reckless or careless driver in Florida, contact your auto insurance, if applicable, as well as one of the Attorneys at CASERTA & SPIRITI for a free consultation. An experienced Personal Injury attorney may be able to get the compensation deserved for the injuries and other damages sustained in such accident. 

FLORIDA AUTO ACCIDENTS & THE NEED FOR UM COVERAGE

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It is reported that Florida has one of the highest rates of deadly automobile accidents in the United States according to one of the latest reports on motor vehicle accidents. It is important to note that these conclusions are drawn from data from various sources with different methods for counting car accidents. For instance, the state of Florida has a higher proportion of the total amount of all car accidents compared to the state’s proportion of the total country’s population.

Florida’s overall automobile crashes make up about 6.2% of the total United States automobile accident crash volume. However, Florida’s proportion of automobile accident injuries is a remarkable 13.4% and accounts for more than 9.1% of roadway deaths resulting from an automobile accident.  Consequently, the studies appear to show that Floridians crash as often as expected but have a higher likelihood of causing accident-related injuries or deaths.

To date, Florida has not required Bodily Injury Liability coverage for its drivers to operate a car legally.  Only after a driver causes an accident that results in bodily injuries to another person, are they required to have either Bodily Injury Liability coverage or post a bond for the required amount of coverage.

It often arises that people get into an auto accident in Florida where the responsible or at fault driver has no Bodily Injury Liability insurance (BI). In these situations, it would be wise to be proactive and purchase an automobile insurance policy that comes with Uninsured Motorist (UM) coverage. Accordingly, if a Florida resident gets into a motor vehicle accident and the liable driver does not have BI insurance coverage, an individual will still be able to file their personal injury claim under the UM coverage they have with their own automobile insurance company. Their insurance carrier will then process the claim following the same process or procedure as it would for an opposing insurer. The only difference is that the claim will be against one’s own UM coverage and not against another driver or vehicle owner. Likewise, if involved in a hit-and-run accident where the responsible driver has fled the scene before information can be obtained, one can again seek compensation from their own UM coverage with their automobile insurance company.

If you should have additional questions, please contact your insurance agent, insurance carrier or one of the attorneys at CASERTA & SPIRITI before an auto accident occurs.

WRONGFUL DEATH CLAIMS IN FLORIDA

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In Florida, the Wrongful Death Act permits surviving dependents and family members to file a claim for damages in the event of an intentional or accidental loss of a family member’s life. The claim is meant to provide compensation for pain and suffering as well as financial support from the loss of an income earner along with funeral expenses and other damages. 

To seek compensation in a wrongful death claim, four (4) elements of negligence must be present. These elements are:

  • The party at fault owed a “duty of care” to the victim – “Duty of care” is the at-fault party’s legal duty to act reasonably to prevent your loved one from being in an accident which could cause. Injury.  A relevant example would be an automobile driver’s “duty of care” is to drive safely, obeying all traffic laws, signs, and signals. “Duty of care” is determined by a judge or jury when compared to how a reasonable person would act under similar circumstances.
  • The party at fault breached the “duty of care” – The breach exists when the at-fault or responsible party defies “duty of care.” Continuing the motor vehicle example, drivers breach their “duty of care” when they fail to obey traffic laws, signs, or signals.
  • The actions of the at fault party were directly responsible for or the cause of the death of the victim – You must prove that a breach of “duty of care” caused and led to the death of your family member. The accident report, medical records, and other documentation of the incident provide evidence regarding how your family member died and can connect his or her death with aforesaid breach of “duty of care.”
  • Damages resulted from the action of the at fault party– It must be proven by evidence that your family member’s death caused damages to you or your family. Damages can include funeral costs, medical expenses, loss of earnings, pain, and suffering, and/or emotional trauma. 

Each of these elements must be shown by enough evidence to prove the negligence and that the deliberate actions of the responsible party caused the death of your family member.

Some of the more common accidents or incidents that result in wrongful death include, but are not limited to automobile accident, commercial truck accidents, accidents involving pedestrians, motorcycles, bicycles, defective productive, workplace accidents, as well as instances of medical negligence or malpractice.

When you are mourning the loss of a family member due to a wrongful death incident, promptly call the attorneys at CASERTA & SPIRITI for a free consultation regarding your potential case, since the statute of limitations or deadline for filing a wrongful death lawsuit in the courts of Florida is within two years of the date of death for most cases. 

Basic Estate Planning Documents in Florida (A Quick Overview)

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  • Last Will & Testament-This document covers the disposition of an individual’s property and/or assets after death.
  • Durable Power of Attorney-This document grants or authorizes someone else (agent) the legal authority to act in a person’s (the principal’s) place, specifically it names an agent to handle financial matters on their behalf.
  • Healthcare Power of Attorney also called a Designation of Health Care Surrogate in Florida is a type of Healthcare Advance Directive-This document names the person (agent) who has the power to make medical decisions for an individual if they become incapacitated.
  • Living Will, also known as a Healthcare Advance Directive-This document outlines one’s wishes for medical care if they cannot make decisions for themselves. It includes instructions for removal of life support, lifesaving measures (such as resuscitation), or whether the patient would want hydration or nutrition. There are other documents, which are written medical orders from a physician, nurse practitioner or physician assistant called Physician Orders for Life Sustaining Treatment (POLST) form or Do Not Resuscitate (DNR) form.
  • Declaration of Preneed Guardian -This document designates, nominates or appointments of an individual(s) as guardian(s) for oneself or for minor children that they are currently serving as guardian for or are the parents. This form is not effective immediately. If a preneed guardian is appointed for a competent adult individual, then the guardianship will not take effect unless the individual is incapacitated and otherwise unable to manage their own affairs. If a preneed guardian is appointed for minor children, then the guardianship is not effective until the current guardian is either incapacitated or dead.  If the other parent of the subject minor children is still living, then guardianship would remain with that surviving parent unless their rights have been terminated by a Court. In a situation where one is a single parent, or if both children’s parents die simultaneously, some document appointing guardianship would be recommended to ensure the minor children are placed under the care of the individual or individuals of the declarant’s choice.

Of course, an individual or couple may need more than the foregoing documents. If one has multiple properties, high net worth, or wants to avoid probate proceedings, an individual contemplating doing an estate plan in Florida may need a trust or other instruments or documents to protect certain assets or meet the individual’s particular needs or circumstances.

Consequently, it would be suggested that said individual or couple should contact and discuss their situation with an experienced estate planning attorney, such as the attorneys at CASERTA & SPIRITI, to fully customize their particular estate plan to meet their specific needs. 

Water-Related Accidents in Florida

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Motor vehicle car accidents are the leading cause of death for children; however, drowning follows closely behind as the second leading cause of death among children under the age of 15. Drowning is also one of the leading causes of death among adults and the elderly as well. 

Herein we will point out the primary risk factors, types of drowning accidents, causes and injuries, common drowning locations as well as who may be held liable in these types of cases. 

There about six risk factors in many drowning deaths. Many people are potentially at risk for drowning but knowing the risk factors can lower that overall risk. The following factors increase the risk for accidental drowning and other unintentional injuries while in or near the water.

Males are at a higher risk of drowning, having twice the mortality rate of females, as well as a greater chance of being hospitalized in non-fatal drownings and other injuries in the water.

Around the world, children aged one to four have the highest drowning rates, followed by children five to nine years of age. Lack of adult supervision, along with the fact that children often misjudge their own swimming ability and also fail to realize the dangers of water play.

Given that the use of alcohol and drugs impede reaction time, judgment, and physical abilities, swimming or boating under the influence places an individual at a higher risk for drowning.

Individuals who live close to the water and have greater access are at a higher risk simply because they spend more time in, around and/or on the water.

Certain medical conditions make it riskier to be in the water alone.

As flooding disasters become more frequent, more accidental drownings can result.

In Florida, some of the cases of drowning include swimming pools, which are prevalent, at private residences, at resorts, or in amusement parks. Water activities are also popular given the number of lakes, rivers, and top-rated beaches. However, many drowning accidents occur in swimming pools, leaving families distraught. Typically, these are negligence cases caused by the subject pool owner and/or the manufacturer of the product in question. 

While there are guidelines, regulations, and laws in place to prevent drowning accidents, such accidents still occur. The Residential Swimming Pool Safety Act (RSPSA)- 2021 Florida Statutes, Chapter 515,  starts by acknowledging that avoiding death by drowning is most effectively achieved with the supervision of a responsible adult. Given that many swimming pool accidents occur with no adult present, RSPSA requires swimming pools in Florida to have a minimum of one of the following safety measures installed:

  • Pool must have isolated access from the home according to pool barrier requirements,
  • Pool barrier must be a minimum of four feet in height and not easily climbed,
  • Pool must be equipped with an approved safety cover,
  • All doors and entrances to the pool area must have self-closing and self-latching devices at 54 inches or higher,
  • Any doors or windows with direct access to the pool must have exit alarms, and
  • Pool must be equipped with a pool alarm that sounds when water is entered.

Property owners, who fail to comply, can face criminal charges. If a property owner or an injured party are unsure about RSPSA guidelines, please contact a Personal Injury Attorney at CASERTA & SPIRITI who can explain the applicable legal process. 

Common causes of drowning accidents may include:

  • Slip and fall incidents on the pools surrounding surfaces,
  • Broken pool ladders or pumps,
  • Diving accidents,
  • Inappropriate water levels,
  • Negligent lifeguards,
  • Poor equipment maintenance,
  • Out of place emergency safety and floatation devices, and
  • Poor overall construction, among others. 

Without appropriate supervision and safety equipment, water activities can become dangerous. 

Drowning accidents bring devastating emotional trauma, pain, suffering, as well as tremendous expense. If a loved one is lost because of a drowning accident, and it is believed another party was responsible for the loss, by law, injured party themselves or a family member may be entitled to compensation.

It only takes one inch of water to cause an accidental drowning incident. The most common locations for accidental drownings are:

  • Lakes,
  • Rivers,
  • Oceans,
  • Swimming pools,
  • Bathtubs, and
  • Buckets.

The elderly and infants have a greater risk of drowning in the bathtubs, though individuals aged five to 64 also drown in bathtubs. A child under the age of six should never be left unsupervised in a tub since they may slip and fall and be unable to pick themselves up or call for help.

Though adults do drown in tubs (a result of falling, sleeping, or passing out), they more often drown in swimming pools, natural bodies of water, and hot tubs. Alcohol or drugs, which impair judgment, balance, and coordination, are often a contributing factor to adult accidental drowning. Pre-existing medical or physical conditions, like seizure disorders, can also increase the risk of drowning.

If it is believe another party is liable for a loss, that injured party will need a knowledgeable drowning accident lawyer who understands the law and can analyze the subject case to determine liability. It is also important to note that if one is considering a personal injury or wrongful death claim against those believed to be liable in the said accident, they will need to do so within the statute of limitations or deadline of the state of Florida or be barred from any type of recovery. If injured in a swimming pool accident, in Florida, the statute of limitations is four years from the date of incident to make a claim. On the other hand, if there is a death of a loved one in a drowning accident, there is only two years to file a wrongful death lawsuit in Florida. It is best to act as soon as possible after an accident and contact an experienced Attorney.

Those potentially liable in a drowning accident is dependent on several factors, including where the accident happened and if a product involved in the accident was defective. Regarding the location of the accident, the following parties can be found at-fault:

  • The property owner or tenant of the property,
  • Neighborhood Associations,
  • Recreational Centers,
  • Day Camps, and
  • Hotel or Resort, among others.

These parties are required by law to ensure safe conditions to protect guests who visit their property, premises, or establishment, and when they fail to do so, they can be held liable. 

In the same way, a designer, manufacturer, wholesaler, or retailer may be liable if a defective product resulted in a drowning accident. For instance, if a life jacket or other safety device failed, causing an individual to drown.

In a swimming pool or drowning accident, the key to recovering compensation is determining liability and proving negligence, which requires investigating the claim, gathering the needed evidence, and legal representation. 

If an individual has suffered a personal injury or lost a loved one in a swimming pool accident, an expert is needed who cares and understands liability and negligence.

If someone needs guidance following the loss of a loved one in a drowning accident, or suffers injury themselves in Florida, contact the lawyers as well as the professional legal team at the law firm of CASERTA & SPIRITI.  Injured parties and families should consider retaining experienced legal counsel to guide them through the process while protecting legal rights and ensuring a fair recovery for the compensation deserved from a tragic loss, which may include medical costs, pain and suffering, rehabilitation, lost wages, disability, among others. 

January 1, 2022, Laws in Florida

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Quite often many laws that are passed by the Florida. legislature and not vetoed but signed by the Governor become effective on July 1, the increase in the minimum wage is in September, however, there are a few that become effective January 1, 2022.

A pair of bills signed this year by Governor Ron DeSantis, involving vehicle rentals and notaries public, become law on January 1, 2022.

In addition, starting at that time, Florida employers will see an average 4.9 % decrease in rates for workers’ compensation insurance. The vehicle-rental measure (SB 566) sets insurance and other requirements for people who take part in peer-to-peer car-sharing programs. In part, the bill requires that, during car-sharing periods, the vehicle owners and rental drivers are insured to at least minimum requirements in state law. It also requires car-sharing programs to oversee the collection and remittance of taxes.

The Senate bill sponsor Keith Perry stated: “We are mirroring what is required by Enterprise or Alamo and the other ones.”

On the other hand, state Senator Gary Farmer, who was among 12 senators and 15 House members who voted against the proposal, questioned whether the measure would provide “appropriate safeguards.”  He stated to the media- “I’m not a rental car company. I’m not going to know, to check the validity of a driver’s license.”  He further stated that “[m]aybe you’ve got a whole history of DUIs out there and I don’t know about it. And now I’m entrusting you with my car. Cars are deemed dangerous instrumentalities under the law of the state of Florida. So, we do a lot of things to protect our residents in general. That’s why we have the rule that a car owner is generally responsible for anybody they let use their car.”

Florida lawmakers passed the bills dealing with vehicle rentals and notaries (HB 121) during the legislative session that ended in April 2021. Most bills passed during the session took effect July 1, which also was the start of the state’s fiscal year.

The notaries bill expands on a 2019 law that authorized remote online notarizations in the state. State Representative Sam Garrison, who sponsored the measure, said during a March Judiciary Committee meeting that the changes are designed to address issues that arose as the coronavirus pandemic increased use of remote notary platforms.

Among the foregoing changes, the law requires platforms to store video of notary sessions, directs the Department of State to include on its website a list of platform providers and allows court reporters to remotely swear in witnesses and newly admitted attorneys via audio-video technology. The law also prohibits platform users’ personal information to be sold.

A third bill (HB 54) that legislators sent to DeSantis with a January 1, 2022, implementation date would have eliminated the state’s no-fault insurance system, and its requirement that motorists carry personal injury protection, or PIP coverage. Ultimately, that bill was among five, which Florida Governor DeSantis vetoed from the 2021 session.

In vetoing the measure, DeSantis explained the no-fault system has flaws and state law involving bad faith litigation, an issue which could lead to costly lawsuits over how insurers handle claims and therefore is “deficient.” Further, DeSantis said the proposal did not “adequately address the current issues facing Florida drivers and may have unintended consequences that would negatively impact both the market and consumers.”

On December 2, 2021, Florida Senate President Wilton Simpson suggested that the no-fault repeal issue could return in the 2022 session, which begins January 11, 2022.

While it was not a result of the legislative session, employers will continue to see decreasing workers’ compensation insurance rates in 2022. Florida Insurance Commissioner DavidAltmaier issued an order in November that set an average 4.9 % decrease, with an effective date of January 1, 2022. This came after an average 6.6 percent decrease that took effect in 2021. Commissioner Altmaier presented a prepared statement in November 2021, to the residents of the state suggesting that “[s]afer workplaces, innovative techniques, and improved risk management practices have resulted in the continued decline in workers’ compensation claims, ultimately benefiting Florida businesses,”

The foregoing is merely a summary of changes regarding relevant Florida laws for the new year. Please call the attorneys at the law firm of CASERTA & SPIRITI if you have any questions about any of these topics.

New Year’s Holiday & the Law in Florida

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New Year’s is rapidly approaching. As we celebrate this holiday season, there are a few matters to keep in mind that do not mix: drinking, driving, fireworks, and firearms.

Annually, the news media presents stories of celebratory gunfire. We often hear of people firing their guns off in the air to celebrate the New Year. It is best not to do this. This activity is very dangerous and can result in either serious bodily injury or death and potentially land you in jail. Florida law criminalizes the reckless handling of a firearm, and many counties and cities have local laws that make it illegal to willfully discharge a firearm within their jurisdiction, subject to certain exceptions like self-defense.

Firearm safety should always be strictly observed. One should never display or discharge a firearm in a reckless or unsafe manner.

Additionally, local governments and law enforcement yearly remind their residents not to fire celebratory gunfire because it is both illegal as well as dangerous.

In fact, in Miami, for more than 20 years, the city has found it necessary to issue New Year’s Eve warnings. In a news conference last year, the mayor of Miami, Francis Suarez, urged city residents not to shoot their guns just hours before celebratory shooting occurred in various cities across Florida.

In Miami alone, there have been a number of New Year’s Eves when people have been wounded or killed by celebratory gunfire since 2007. 

Celebratory gunfire, as it is called, has wounded, and killed dozens in recent years throughout the U.S. alone.  Deaths and injuries have ben reported and investigated annually when individuals are struck as well as killed by gun shots dropping to the ground.  Most bullets, fortunately, land harmlessly to the ground or lodge in roofs and other property.  However, in densely populated areas, bullets can hit people.  Such falling bullets can strike a victim’s head, shoulders or feet and can ultimately cause serious bodily harm.

Celebrating with fireworks can also cause harm.  Certain fireworks are legal in Florida, according to state law, however, cities have the authority to ban fireworks.

In April 2020, Gov. Ron DeSantis signed a bill that legalized fireworks in Florida on three (3) holidays every year. The full use of fireworks in Florida is now legal on Independence Day on July 4, New Year’s Eve on December 31, and New Year’s Day on January 1. Sparklers, noisemakers, and the like are legal all year

Despite the state law, fireworks could still be banned in your local city or county. It is best to check prior to engaging in that type of activity.

But as Florida residents ring in the New Year with fireworks, they should keep in mind that last New Year’s Eve alone, government statistics show approximately 10,000 people went to the emergency room for firework-related injuries. Of those statistics, children younger than 15 made up for 36% of those injuries.

Now, New Year’s Eve and alcohol, it goes without saying that operating a motor vehicle while intoxicated is a criminal offense. Similarly, carrying a concealed handgun with a concealed handgun permit while intoxicated is also a crime.

With New Year’s Eve approaching, and even though the pandemic has changed many plans, some are still planning to ring in 2022 with a “bang”! The top concern for many is the continued risk of encountering a drunk driver during or after New Year’s celebrations. Many have advocated for people to make plans for a designated driver before heading out to celebrate. There may still be rider-assist programs that like AAA’s “Tow to Go” program, as in the past, that you may call a driver to take you home, or you can call and take an Uber or Lyft.  Even though this has been a difficult year due to the continued pandemic, people can still count on fireworks and having a drink to bid 2021 farewell. Law enforcement experts have stated that many people get arrested due to drinking and driving while celebrating the holidays. Consequently, don’t begin 2022 making the year more challenging for yourself by getting behind the wheel of a car after you drink, and get your first DUI.

If a person does too much celebrating over the holidays, they should be careful. Unfortunately, accidents do happen, and in some instances, people are injured. Whether by fireworks or some other accident, common questions asked include, what happens if I see someone who needs medical assistance? Can I be held civilly liable if I accidentally injure them while rendering aid? While a person in Florida is not typically required to perform first aid, state law protects them when administering emergency or life-saving treatment to someone in need. This protection is commonly called the “Good Samaritan Law.”

Under the Florida Good Samaritan Act: “Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment… shall not be held liable for any civil damages as a result of such care or treatment.”  Whether it is a firework mishap, car accident, or some other type of injury, the Good Samaritan Law states that a person will not be civilly liable while they are administering emergency care in good faith, reasonably and without compensation.

We wish you and your family a Happy Holiday Season. If you should have any questions or would like additional details regarding these topics or any others, please contact the attorneys at the law firm of CASERTA & SPIRITI.

In Florida-Who Has the Right of Way?

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In Florida, who has the right of way?  The answer is no one!  Florida has no law explicitly granting the right of way.  The law only says who must yield (give up) the right-of-way.  Every driver, motorcyclist, moped rider, bicyclist, and pedestrian must do everything possible to avoid a crash.  The goal is to always encourage defensive driving.

For example, Florida Statute 316.121 states in pertinent part that “the driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.”  Also, “when two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”   There are other examples.  Again, note how the law only indicates the person who must yield.

Pursuant to Florida Statute 316.122, “The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction, or vehicles lawfully passing on the left of the turning vehicle, which is within the intersection or so close thereto as to constitute an immediate hazard.” 

Another example is Florida Statute 316.123, which relates to vehicles entering stop or yield intersections. “After having stopped, the driver shall yield the right-of-way to any vehicle which has entered the intersection from another highway, or which is approaching so closely on said highway as to constitute an immediate hazard…”  Also, “at a four-way stop intersection, the driver of the first vehicle to stop at the intersection shall be the first to proceed.  If two or more vehicles reach the four-way stop intersection at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”  Further,” the driver of a vehicle approaching a yield sign shall, in obedience to such sign, slow down to a speed reasonable for the existing conditions.”  Again, there are other examples.  Please read the full statute and the Official Florida Driver License Handbook.

According to Florida Statute 316.125, “The driver of a vehicle about to enter or cross a highway from an alley, building, private road or driveway shall yield the right-of-way to all vehicles approaching on the highway to be entered which are so close thereto as to constitute an immediate hazard.”  And, “The driver of a vehicle emerging from an alley, building, private road or driveway within a business or residence district shall stop the vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across the alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon and shall yield to all vehicles and pedestrians which are so close thereto as to constitute an immediate hazard.”

In line with Florida Statute 316.126, if an emergency vehicle (police car, ambulance, fire truck, etc.) is approaching with sirens or lights on, you must get out of the way.  Motor vehicles, bicycles, and pedestrians all must yield the right of way to emergency vehicles.  One should pull their vehicle over to the nearest curb and wait there until the emergency vehicle has passed. If someone is passing a stopped emergency vehicle, they must move over so that there is an empty lane between their motor vehicle and the emergency vehicles or reduce their speed to 20 mph below the speed limit. Furthermore, emergency vehicle drivers are subject to traffic infractions as everyone else and must drive safely.

Consequently, remember, the operative word is “yield” when you are in a situation where you are unclear about right of way.  Patience and defensive driving are always the correct answer.

REAL PROPERTY OWNERSHIP & INJURY LIABILITY IN FLORIDA

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Usually, the person or business who owns the real property and the individual or business occupying it will both owe a duty of care to those who enter the premises. If someone is injured while visiting the property, one or both parties may be responsible depending on the circumstances of said accident.

This is called Premises Liability.  A premises liability lawsuit can hold a property owner or occupier and/or possibly others responsible for any injuries and/or damages arising out of an accident or incident occurring on said premises. In all states, owners that occupy a property must make a reasonable effort to maintain a safe environment for visitors to it.

The basic Duty of Care is essentially where a person who owns, leases, occupies, or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition.

Generally, the law holds each person responsible for the consequences of his or her own actions – if your intentional or negligent conduct results in injuries to another person, you may be held civilly liable for the reasonable monetary value of any damages proximately caused by your actions.

Just as an auto accident, there are a few factors that must be present for someone to be considered negligent in the case of a slip and fall accident. If someone is injured on your property, the law does not automatically regard you as responsible, or that you must compensate them.

Under Florida Statute 768.075, a Florida homeowner or property owner cannot be held liable for any injuries or deaths sustained on their real property by a trespasser IF the trespasser was under the influence of alcohol or some other mind-altering substance, etc.

As a rule, property owners are not liable for injuries suffered by trespassers.  However, in any personal injury lawsuit by a trespasser against a property owner, the court will essentially say, that property owners are not usually liable for injuries to trespassers, so an injured party must prove why their case is different regarding circumstances or exceptions, etc.

In general, no liability is incurred since an individual, who is breaking the law by trespassing, waives their right to sue for injury or damages by doing so. However, there are some exceptions that allow certain trespassers to collect compensation if they are injured on an unsafe premises.

Minors or children my be a different matter. If the trespasser is a child, the “attractive nuisance doctrine” may come into play.  This exception protects minor children who are injured on unsafe real property. It is based on the understanding that children can be easily attracted to some unappreciated danger (attracting or enticing a child’s curiosity, such as a pool), or that they can wander into an unsafe situation regardless of the adequacy of warnings. Children are not classified or considered the same as an adult trespasser.  Real property owners or occupiers who do not safely maintain their home or business premises and cause harm to a child can be held responsible.

By and large, property owners cannot use deadly force to protect property.  Although, property owners may be able to shoot at trespassers in self-defense if they fear great bodily harm or death. BE WARNED, however, shooting at a trespasser is always a legal crapshoot.

An owner can also be held liable if he or she rents out a property in a dangerous condition without warning the tenant. In that case, even if the tenant is in total control of the property, any injuries stemming from the previously existing dangerous condition will be the owner’s responsibility.

In most cases, you cannot lose your house in a lawsuit in Florida. The most important and well-known exemption from creditors is the homestead exemption of real property. Your home is protected from creditors in Florida, subject to acreage limitations. There is no monetary limit on the homestead exemption in this regard.

Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by most judgment creditors. It means that a creditor cannot place a lien against or force the sale of your homestead to satisfy an obligation or monetary judgment.

Insurance is necessary to protect property owners/occupiers against such liabilities like auto insurance.

Every homeowner’s insurance policy is different, but most slip and fall accidents, for example, will be covered, except where the homeowner acted intentionally to cause the slip and fall. Most homeowner’s policies have two types of coverage, i.e., liability coverage and no-fault medical coverage.

Commercial general liability (CGL) is a type of insurance policy that provides coverage to a business for bodily injury, personal injury, and property damage caused by the business’s operations, products, or injuries that occur on the business’s premises.

Again, under Florida law, the owner of a property, or tenant such as a shop owner, is responsible for maintaining a premises or property in a reasonable condition free of hazards. A failure to do so may create liability if an injury results to a visitor from negligent maintenance.

Premises liability claims are about unsafe conditions on someone’s real property. Personal liability is about someone’s own actions and/or vicarious liability, including respondeat superior, which means a principal is liability or responsible for the acts of their agents or others. When respondeat superior applies, an employer will be liable for an employee’s negligent actions or omissions that occur during the course and scope of the employee’s employment.

The duty of a Florida property owner applies to for-profit companies and nonprofits. Homeowners may be liable. The federal, state, or local governments may also be liable. Governments should protect people who visit courthouses and other public places, among others. Maintenance and repair crews may also be liable if they failed to protect the public.

In the state of Florida, the statute of limitations or deadline for a negligence, accident, or premises liability case is four years from the date of accident, incident, or injury where you must present a claim and file a lawsuit in the appropriate court of the state of Florida or be forever barred from obtaining a recovery.

If you have are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs or before any deadlines are missed after an accident occurs!!

Real Property Ownership in Florida and Estate Planning

Posted by CSG Firm on

Florida law recognizes three basic types of joint ownership. Two are joint tenancy and tenancy by the entireties, which also has what is called a “right of survivorship.”  The term means that, when one co-owner dies, the surviving owner automatically receives full, undivided ownership of the property. By definition, a co-owner who holds a partial interest in a tenancy by the entireties or joint tenancy with right of survivorship cannot transfer that interest to heirs through probate since the interest never becomes a part of the probate estate. Further, with a joint tenancy or tenancy by the entireties, the joint interests must be equal. The third type of ownership is the one without a right of survivorship and that can be transferred by way of probate. It is called tenancy in common. Instead of owning a property together, tenants in common each own a percentage interest that can be transferred. Florida law assumes a 50/50 split, but the percentages can be different if the owners decide otherwise. Consequently, a tenancy in common and Florida estate planning strategies can be utilized for various purposes when a right of survivorship is not the goal or outcome.

If an asset is owned by more than two co-owners, title is usually held as tenants in common, with each owner owning their respective percentages. On the other hand, tenancy by the entireties is reserved for married spouses only, and therefore by definition it is limited to only two owners. A joint tenancy, however, can include three or more joint owners. The result is that, when a co-owner dies, his or her interest merges with the interest of the remaining or surviving owners. For example, a joint tenancy with three owners, and one dies, there are now tow owners with a joint tenancy. The process continues until only one surviving owner remains. The last or final living owner thereby holds a complete and undivided title to the said property.

For purposes of understanding a Florida tenancy in common and estate planning, it merits saying that, although real estate is the most common example when discussing joint ownership formats, other types of assets can be jointly held as well. In the state of Florida, personal property, financial accounts, and many other types of assets be owned jointly as tenants in common, joint tenants with right of survivorship, or tenants by the entireties.

Also, in Florida, a tenancy in common ownership is presumed the default form of co-ownership. If a deed with more than one owner does not specifically state that the owners are tenants by the entireties or joint tenants with a right of survivorship, said owners are presumed to be tenants in common. Tenancy in common can also be created through the “destruction” of one of the other two types of co-ownership. Joint tenancies are destroyed if a creditor attaches the subject property in Florida or if one of the co-owners transfers an interest.  In fact, transfer of an interest destroys a joint tenancy even if the transfer is from one owner to another.

Tenancy by the entireties in Florida is reserved exclusively for a married couple, therefore, it can be destroyed by divorce.  If former tenants by the entireties are no longer married, they become tenants in common, with each having a 50% ownership interest unless a marital property settlement agreement states otherwise.

Joint tenancy with right of survivorship as well as tenancy by the entireties automatically convey ownership interests outside of probate thereby avoiding some of the time and expense related to probate administration in the courts.

Usually, a tenancy in common property interest is the only type of the joint interest types that goes through probate and can be transferred by way of provisions in a Last Will and Testament or through intestate succession (if there is no Will) following Florida law. As a result, if you own a 50% share of a property as tenants in common with another, you can bequeath or devise that 50% share to whomever you direct in your Last Will and Testament (Will), or it can go to your next of kin by way of Florida law if you have no Will. After the probate estate is administered, the designated beneficiary or heir or whatever number of them will then own a 50% interest or share (singularly or aggregately) in the property alongside your surviving co-owner as tenants in common.

Avoiding probate quite often appears to be a popular objective by many in estate planning. However, it is not the only goal. The use of a tenancy in common for Florida estate planning gives one more control over where your joint ownership interest eventually winds up. If you have a joint tenancy with right of survivorship and you die first, your co-owner now holds complete and undivided title to the property. Your beneficiaries or heirs do not receive an interest in it. On the contrary, a tenancy in common allows you leave your half of the Florida property to whomever you desire, including to the co-owner, if that’s what you wish to do.

Florida’s co-ownership options or alternatives allow for a few estate planning possibilities regarding conveying or transferring real estate or other property, while also raising various potential complications. All these can be addressed in more detail in a future article.

If you need assistance in Florida when doing, redoing, revising, orupdating your Estate Plan, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience. We have many years of experience with Florida Estate Planning and can assist you in making the appropriate selections or changes which are best suited for your circumstances.