• 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. 

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. 

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.

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.

Florida law allows you to hold designers, manufacturers, suppliers, retailers, distributors, and others liable for the injuries you sustain from their products. Florida also allows family members to file a claim and collect compensation on behalf of a loved one who died in an incident caused by a defective or dangerous product. This area of law is known as Products Liability or Product Liability. It is where certain groups who make products available to the public are held responsible for the injuries and/or damages those products cause.

Defective products can range from items you would expect to be dangerous to those usually considered harmless. These items can include heavy machinery, cars, clothes, batteries, pharmaceutical drugs, firearms, elevators, and even children’s toys. The fact of the matter is that, if it is a product you can buy and a defect leads to serious consequences, liability can result.

If you have suffered personal injuries from a defective product, it can be difficult to know who is ultimately responsible. If all you did was buy a product at a store, is it your fault for buying it, is it the store’s fault for selling it or is the product’s company at fault for creating or manufacturing it? There are essentially three (3) categories of responsibility: design, manufacturing, and marketing.

Design defects occur when a product is inadequately planned in such a way as to pose unreasonable hazards to product users. The underlying basis for this theory of defect is that the product manufacturer should have adopted a design that would have reduced the risk of accidental injury. When a product has a design defect, the plaintiff or victim primarily sues because of negligence or strict liability. The negligence cause of action will allege that the manufacturer knew or should have known of the risk associated with the design.

Manufacturing defects are ones that were not intended in the design but can come along as a result of production. This kind of defect occurs when a product departs from its intended design and is more dangerous than consumers expect the product to be. These could be widespread defects or ones that only end up happening to a single product in a line of millions. Manufacturing defects include incorrectly attached parts, improperly installed electrical circuits, improperly manufactured plastic or material and incorrect bolts or fasteners, among others. If you suffered a personal injury because of an unintended missing or added part, that may be a manufacturing defect.

Marketing defects typically stem from failing to warn or explain elements of a product that are potentially dangerous. It occurs when a product has inadequate warnings or instructions regarding its proper use. The manufacturer of a product has a duty to warn its users of dangers that are not obvious. For instance, if a drug or medication does not contain a warning that it should not be taken in combination with another drug, that is a marketing defect. If you were to unknowingly take that it alongside another, you could suffer damages or personal injuries. One of the most famous cases involving a marketing defect is the “Big Tobacco” lawsuits of the 1990’s. The issue at the heart of these lawsuits was that tobacco companies knew their products were addictive and caused lung cancer, but they did nothing to disclose or warn consumers of those known risks. One of the consequences of the Big Tobacco litigation was requiring companies to put clear warning labels on cigarette cartons.

For all these types of defects, you can choose whether to file a lawsuit for yourself or for a larger community affected (i.e., class action). For instance, if you purchased a product that failed after one month of use due to a design defect, and it happened to others, you might have a case involving a class action lawsuit against the responsible business. If you won or favorably settled the lawsuit, everyone who had purchased that same product would share in the recovery of the settlement for said class. However, often, personal injury cases are personal to the individual victim who suffered the damages.

Some product defects can seem innocuous, imprudent, pointless, or frustrating, but if you are injured by them, you should contact a lawyer to discuss your rights and options. If you have been injured as the result of a defective product, CALL CASERTA & SPIRITI immediately.

In Florida, an employer as well as vehicle owner is legally responsible for acts of their employees committed within the “course and scope of their employment” when the employee injures someone who is not a fellow employee and under the “permissive use” doctrine when the driver of your car injures an innocent third party. The doctrine applies only when the owner allows the driver to operate the vehicle (“permissive use”). Therefore, if your vehicle is being operated without your permission, the doctrine does not apply. For example, if your vehicle is stolen and subsequently involved in an accident, you are not liable under the doctrine. What is the Florida Dangerous Instrumentality Doctrine? Dangerous instrumentality refers to the doctrine that holds the owner of an inherently dangerous tool or vehicle responsible for any injuries or damage the tool or vehicle might cause. This legal concept is also known as vicarious liability. Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency or respondeat superior, the responsibility of the superior for the acts of their subordinate 

So many different theories or doctrines to consider, which means in Florida, a person injured in a car accident is entitled to sue the at-fault driver and the owner of the at-fault driver’s vehicle personally or the company employer. Even if the at-fault driver has insurance, the injured person can still file a lawsuit for their damages against both the at-fault driver and the vehicle owner or employer.

However, as it affects an individual Floridian car owner versus a business-Whenever someone is driving your car with your permission, your car insurance will be primary. This means that if the permissive driver gets into an accident, your car insurance will cover the damage in much the same way as though you were driving it. Again, this generally only applies if you gave them permission to drive your car. This means that, provided the vehicle’s owner gave permission to drive their car and their policy does not specifically exclude said user, their insurance should cover the accident.

Because of the foregoing, when we settle with a driver who is underinsured, we request them to complete a Sworn Statement or Financial Affidavit, which asks whether they were in the course of employment or there are any other available policies of insurance at the time of the subject accident, which may provide additional coverage.

 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!!