Florida Injury Attorney Blog

When a person is injured or killed in an auto accident, the police and/or traffic homicide detectives will prepare a report based on their investigation of the crash. That report will be readily available to the personal injury or wrongful death attorney representing the plaintiff who has filed a claim or lawsuit for damages. However, in some injury or wrongful death cases, the resulting incident report is not as easy to obtain. For instance, when the injury or death occurs at a store or other place of business, at a hospital or at a nursing home, the owner or an employee may prepare an incident report with crucial details about how the incident occurred. After a claim for injuries or death is made against the company or a lawsuit is filed, the representatives and lawyer for the company may refuse to provide that report to the plaintiff's attorney. They may claim that the report is protected by the work product privilege which provides that a party may refuse to produce documents that were prepared in anticipation of litigation after such an incident. In other words, after an accident resulting in injuries or death, the report prepared by the company may be prepared with the idea that a lawsuit will follow so that report is privileged information that can remain confidential.

Assuming the report is considered privileged and the lawyer for the defense in a personal injury or wrongful death lawsuit refuses to produce it, there are ways for the plaintiff's lawyer to overcome the privilege and obtain the report. This work product privilege can be overcome if the plaintiff's lawyer can show that the plaintiff needs the information in the report and the plaintiff cannot obtain such information without undue hardship. For instance, if the report has important information about the incident and what caused it, the first part of the test can be fairly easy to establish. However, how does the plaintiff's lawyer establish that he/she cannot obtain the information from another source without undue hardship? One or more of the following factors might help: if the report contains information about the incident that only the company employees would know yet they are not available or unreliable for whatever reason, if there were no other witnesses to the incident other than company employees have since died or cannot be located, if the plaintiff was injured to the extent that he/she cannot recall the events surrounding the incident or the victim died as a result of the accident. Those are some scenarios where the plaintiff's attorney can establish a need for the information and an inability to obtain the information any other way.

Companies and their lawyers will often refuse to produce an incident report that has important details about the incident and subsequent injuries or death that would be helpful to the plaintiff. There is a privilege that may allow the company lawyer to refuse to produce the report, however, there are also effective legal arguments that can overcome the privilege and force the defense lawyer to produce the report.

One common accident that we see over and over in personal injury and wrongful death cases is the reas end accident. As it sounds, this kind of traffic crash occurs when the lead vehicle stops or slows for any number of reasons and the rear vehicle fails to stop and crashes into the back of the lead vehicle.

In personal injury and wrongful death lawsuits in Florida, the law says that in such an accident, there is a legal presumption that the rear vehuicle was the exclusive cause of the accident. In other words, the law assumes that the rear vehicle completely caused the accident as opposed to anyone else, including the driver of the lead vehicle who was hit. The reason for this presumption is that the rear driver is obviously in a better position to avoid an accident with a vehicle in front of it. Alternatively, when a driver slows or stops his/her vehicle and is looking forward, he/she may not know and have no way to avoid a vehicle behind him/her who does not stop in time.

Sometimes, in a personal injury or wrongful death lawsuit, the insurance company lawyer for the driver of the rear vehicle will argue that the lead vehicle stopped suddenly and without apparent reason and should share some or all of the blame for the accident. The presumption of negligence by the rear vehicle is a rebuttable presumption. This means that the rear vehicle driver can overcome the presumption of negligence by establishing that the lead driver, or some other driver, was negligent in causing the crash. The insurance company for the rear vehicle usually attempts this by arguing that the lead vehicle stopped quickly without any legitimate reason. However, this is a difficult argument that often fails. It is the obligation of each driver to leave enough distance between his/her vehicle and the one in front of it to safely stop if that driver stops quickly. Additionally, all drivers need to account for the fact that emergencies arise, whatever they may be, that may cause the driver ahead to stop quickly. If that driver can stop for a hazard in front of him/her, other drivers should be able to stop as well.

In rear end accidents that cause injuries or death, the rear driver is likely going to be negligent for causing the accident and the damages according to Florida law. That driver may have excuses for why he/she was not completely at fault, but those excuses are often ineffective.

Police officers, sheriffs and other government officials in Florida have what is called sovereign immunity from lawsuits based upon negligent conduct that causes injury or death to a member of the public. This sovereign immunity basically means that they cannot be sued by a person for injuries or a death caused by their conduct. However, there are exceptions to the sovereign immunity rule in Florida.

One such exception was outlined in a recent Florida Supreme Court case based on an incident that occurred in Marion County, which is near Ocala, Florida and is about two hours southeast of Jacksonville, Florida. In that case, a relative of the victim called a neighbor to check on the victim who was home alone. When the victim did not answer calls or knocks on her door, the neighbor called 911. Two Marion County police officers arrived and made entry into the victim's home. The victim was found unconscious on the floor. The police yelled the victim's name and shook her, but the victim gave no response of any kind. Two witnesses implored the police officers to call for an ambulance, but the police officers assured the witnesses that the victim was merely sleeping. One of the witnesses even indicated to the police that the victim may be in a diabetic coma, but the police officers again reiterated that she was just sleeping. The police suggested that they leave a window open and left. The witnesses relied upon the police officers' opinion and left as well. One of the witnesses came back later and saw that the victim had not moved. An ambulance was then called, and the victim died shortly thereafter.

This case raises several issues, but two primary ones are whether the police officers owed a duty of care to the victim and if so, whether they were protected from a lawsuit in Florida by sovereign immunity. Police officers can only be sued in certain situations. In any case, a plaintiff can only sue someone if that person owed a duty of care to the plaintiff or decedent and breached, or violated, that duty. In this case, the Court found that the police officers did owe a duty of care to the victim based upon the undertaker's doctrine. This doctrine as it applies to this case says that if the police respond to a 911 call, undertake the duty to try and help the victim (i.e. assume the duty of care), fail to appreciate the obvious severity of the victim's condition and fail to call an ambulance and the victim is injured or dies as a result, then a duty of care is present. In other words, if the police officers decided to respond to this call later after handling other business first or decided not to go into the house after no one answered and the victim died as a result, the analysis may be different. But, since they saw the victim, undertook the effort to try and determine her condition and make an assessment as to what she needed, they went a long way towards assuming a duty of care for the victim.

Two other elements were also present here. By undertaking to care for the victim and deciding that she was just sleeping, the police officers increased the risk of harm to the victim and gave the witnesses a false sense of security thereby delaying their efforts to help. In other words, the police officers' gross misunderstanding and miscalculation of this situation left the victim worse off than she was before and gave the witnesses who wanted to help reason to believe that they did not need to do anything further for the victim.

Of course, just because a duty of care is present and breached does not mean a lawsuit can go forward. The second part of the analysis looks at whether the police officers or sheriff are immune from a lawsuit. The issues regarding immunity are too lengthy to cover here. However, in general, government officials are immune from a lawsuit based on discretionary, or planning or policy making, type decisions. For operational decisions, immunity does not apply and government officials can be sued for their conduct. The Court determined that the decisions made by the police officers in this case were operational.

Sovereign immunity protects government and law enforcement officials from lawsuits for injuries and deaths in many situations. However, as the case described above illustrates, there are exceptions to the sovereign immunity rule that allow lawsuits to go forward when injuries or deaths result from negligence on the part of police or other government officials.