According to the Union Leader, the student is looking to hold liable the school district and two of his former coaches. The school district had filed a motion to dismiss, and the judge denied this request. This ruling was reaffirmed upon a motion for reconsideration.

Plaintiff suffered a spinal cord injury during a preseason football practice in 2010 that rendered him quadriplegic. He was just 15-years-old at the time, and was a member of the school’s junior varsity team.

Today, he’s 21 and his entire life has been significantly altered.

Legal counsel for the school district continues to assert that recreational use statutes should allow the district to claim immunity. New Hampshire, just like Florida, has a recreational use statute. Governmental agencies as a rule have sovereign immunity from injury lawsuits, except where they have provided a waiver of liability in certain instances. In New Hampshire, those rules are spelled out in RSA 507-B:5. In Florida, the sovereign immunity waiver is spelled out in F.S. 768.28.

Florida’s recreational use statute, as codified in F.S. 375.251, states that owners or lessees of land who open it to the public for free and recreational use enjoy immunity for injuries suffered on that site. However, this statute primarily deals with premises liability. In this case, the school is accused of liability for failure to ensure the coaches gave instruction to players pertaining to the risk of serious injury if tackling was attempted without players keeping their heads up.

This practice marked the team’s first contact practice, wherein the team was wearing pads in their uniform. Plaintiff alleges that at no point was there any evaluation of whether plaintiff or others:

• Understood how to properly and safely conduct a tackle;
• Knew the critical importance of keeping one’s head up during a tackle;
• Was physically able to tackle.

Court records show the personal injury occurred the very first time plaintiff attempted a tackle in a drill against a running back. He put his head down and charged, colliding, head-on with the knee of the oncoming call barrier. As a result of the impact, plaintiff suffered a broken neck.

Plaintiff accuses the coaches and the school for negligent training and negligent supervision.

Although playing sports for a team is a key part of the school experience for many youth. However, there are some inherent risks of personal injury involved in certain sports. Generally speaking, coaches are not strictly liable for injuries, which means plaintiffs need to show negligence and – with regard to school districts – overcome assertions of sovereign immunity. Whether an injury is compensable will depend on a number of factors, including:

• Whether the athlete signed a waiver of liability;
• What level of involvement the school district had in organizing/ overseeing the sport;
• What degree of training the coaches had;
• What degree of training coaches gave to students.

We may also look to see whether the school district or property owner had an insurance policy that would cover student athlete injuries incurred in the accident.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Judge reaffirms ruling not to dismiss paralyzed football player’s lawsuit against Nashua School District, coaches, Oct. 18, 2016, By Kimberly Houghton, Union Leader

More Blog Entries:

No Child Injuries in Miami School Bus, Man Hospitalized, Sept. 29, 2016, Miami Child Injury Lawyer Blog

Vicarious liability – holding accountable one entity for the actions of another – can be asserted when there is an employer-employee relationship under the legal doctrine of respondeat superior, Latin for, “Let the Master Answer.” If the employee is acting in the course and scope of employment at the time of the alleged malpractice, the employer can be held accountable. However, where the doctor is an independent contractor, the hospital/ facility can’t be liable for malpractice (usually). However it’s important to point out there could be two key exceptions:

• The doctor was misclassified as an independent contractor and is actually an employee. This can be proven in a number of ways, including an examination of the kind of oversight the facility had over the doctor’s schedule, work, pay, etc.
• The doctor/ hospital/ facility held the doctor out to patients to be an employee/ agent of the facility. In these cases, it doesn’t matter what the actual relationship was. Instead, it matters what the patient reasonably believed. This could be determined by whether the doctor wore the hospital logo, if the doctor had business cards with the hospital’s logo, whether the hospital specifically informed the patient of the doctor’s independent contractor status.

Our Miami medical malpractice attorneys know that while there is no bright-line rule for this, plaintiffs bear the burden of proof and such assertions can be challenging – though certainly not impossible.

In the recent case of Markow v. Rosner, an appeals court in California was asked to consider whether a plaintiff’s presumption of hospital employment of a negligent doctor was reasonable, and thus allowed the hospital to be held vicariously liable.

According to court records, plaintiff sought treatment from a renowned doctor in the region because he was suffering serious and chronic pain following a major car accident. The doctor was in fact employed at a local pain clinic, but was an independent contractor for a local hospital. The doctor’s business cards had the hospital logo and his website didn’t mention his private practice. However, when patient was slated to undergo surgery, he was given a form to sign indicating he understood the doctor was an independent contractor. This provision was in bold letters.

Patient underwent risky spinal surgery and awoke in tremendous pain on his face that ultimately spread throughout his body over the course of the next week. His condition deteriorated, ultimately rendering him quadriplegic and hospitalized for two years.

Plaintiff sued the doctor for negligence and the hospital for vicarious liability. Jurors ultimately found both the doctor negligent and the hospital vicariously liable because patient reasonably believed the doctor to be an employee of the hospital. He was awarded $5.2 million. The appellate court reversed in part and affirmed in part. The doctor was negligent, the court ruled, but the hospital was not vicariously liable because the doctor was not an employee of the hospital and plaintiff did not have reasonable grounds to believe that, given the consent form he signed that clearly informed him of the contrary. As such, his damages will be reduced by 40 percent, or the amount of the hospital’s liability.

If you have been a victim of Miami medical malpractice, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Markow v. Rosner, Oct. 4, 2016, California Court of Appeals, Second Appellate District, Division One

More Blog Entries:

No Child Injuries in Miami School Bus, Man Hospitalized, Sept. 29, 2016, Miami Medical Malpractice Lawyer Blog

The jury in Dallas County determined the trucking company was 90 percent liable for the family’s damages, while the truck driver was 10 percent responsible. The head-on collision happened in February 2015. The 42-year-old registered nurse was on her way to visit a hospice patient when an 18-wheeler traveling the opposite directions slid across the highway and slammed into her vehicle. She died instantly.

It was later revealed that the large truck had no snow chains on it tires. Now, those of us here in Miami might not be familiar with snow chains, but long-distance truckers who travel cross-country should have a good idea. These devices are chains that can be affixed to one’s tires in order to improve traction and control in icy, snowy road conditions. Testimony and evidence presented at trial showed the company did have snow chains at the terminal, but the truck driver did not seek them out or use them the morning of the accident. 

According to The News Journal, the crash occurred around 9:30 a.m. one February morning in 2015.The truck driver was assigned to pick up office supplies from a terminal in Dallas and drive them to a suburb about an hour or so away. He knew the conditions of the road were bad that morning because he had driven himself to the terminal. It’s not clear whether he knew there were snow chains available or whether he’d been trained to use them.

Truck drivers need to know that in inclement weather – snow, ice, fog, rain or high winds – these are scenarios for which they must be prepared. That means their vehicles have to be properly loaded and have the right equipment. Drivers need to be adequately trained and not pushed to operate the vehicle in unsafe conditions or at unsafe speeds. It’s not lost on our Miami truck accident lawyers that snow chains on tires reduce the maximum speed a vehicle can go, which most likely has something to do with why drivers weren’t encouraged to use them. The faster each haul can be delivered the more deliveries can be made and the more money these trucking companies can make.

The fact is, bad weather is simply not an excuse for a tractor-trailer accident. That’s because section 392.14 of the Federal Motor Carrier Safety Regulations (FMCSRs) clearly states that, “extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions exist.” The rule makes it very clear that weather it’s foggy, misty, rainy, dusty, smokey, snowy, icy or otherwise slippery, commercial drivers “shall use” extreme caution. That means either significantly reducing the speed of the rig or even stopping if necessary. It also means taking appropriate precautions to ensure the rig is in good shape before even heading out into bad weather. In some cases, it could even mean not driving at all until the storm/ poor conditions pass. In fact, the FMCSR specifically states that if the conditions become sufficiently dangerous while the trucker is driving, the operation of the truck “shall be discontinued” and shouldn’t resume until safe operation is possible.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Jury awards $35M to family of hospice nurse killed in icy crash with 18-wheeler, Sept. 7, 2016, By Caleb Downs, The Dallas Morning News

More Blog Entries:

No Child Injuries in Miami School Bus, Man Hospitalized, Sept. 29, 2016, Miami Truck Accident Lawyer Blog