Monthly Archives:February 2016

Walt Disney World and SeaWorld are both facing wrongful death claims through the workers’ compensation system. In both cases, regulators cited the companies for serious worker safety violations that resulted in the workers’ deaths. But neither company is likely to end up paying a dime to the families of those workers.

This was the conclusion of a recent article in the Orlando Sun Sentinel. Why? Florida law provides employers with “near-ironclad protection from lawsuits sparked by on-the-job injuries and fatalities,” according to legal experts.

In a premises liability case for a non-worker injured at an amusement park, for example, the plaintiff has to prove the park was negligent. An injured worker has to prove much more: a company’s knowing concealment of a risk virtually certain to lead to injury or death.

In Order to Get Workers’ Compensation, Employee Has to Prove the Serious, Knowing Conduct by Employer
Walt Disney World is being sued by the mother of a monorail driver who was killed in a train collision in July of 2009. After that accident and several others involving the monorails, federal investigators cited Disney with a “serious” safety violation and noted multiple enforcement lapses in their stated monorail policies.

SeaWorld Orlando faces a potential claim from the husband of Dawn Brancheau, the SeaWorld killer-whale trainer who drowned in February. Regulators had already charged SeaWorld with “willful” safety violations and had recommended that trainers never be allowed unprotected contact with the killer whale that killed her.

However, even if the plaintiffs can prove that the parks knew they were engaging in conduct that was likely to get a worker hurt or killed, the plaintiffs aren’t likely to win their cases. That’s because, in Florida, the standard of proof required in a workers’ compensation case is much higher than in other cases.
Why Is the Law So Strict in Worker Injury and Wrongful Death Cases?

According to the Sun Sentinel, the law was changed under the Jeb Bush administration in 2003 after heavy lobbying by the business community. The change in the law “dramatically re-strengthened businesses’ lawsuit shield.”

The change was made after a 2000 Florida Supreme Court holding that injured workers could prevail if they could prove that a company knew or should have known that its actions were likely to lead to workers’ injuries or wrongful death.
The business community was outraged. One of Florida’s largest business trade groups, Associated Industries of Florida, charged that “the language the Supreme Court had put out could really and significantly erode the protections from tort liability that the employers are paying workers’ comp coverage to have.”

In a 182-page rewrite of Florida’s workers’ comp laws, lawmakers changed the rule from “knew or should have known” to essentially “knew or was virtually certain” that its conduct would lead to injury or death. Furthermore, employees now have to prove that the risk was not apparent and the employer deliberately concealed that risk.
Finally, the employee would have to prove those claims by “clear and convincing evidence,” which is a tougher standard than the “preponderance of the evidence” standard used in virtually all other civil lawsuits, such as premises liability and tourist accidentclaims.

Sarasota workers’ comp lawyer Matthew Noyes of Perenich, Caulfield, Avril & Noyes calls that standard “nearly impossible” to meet and “a horrible burden on the injured worker.”
“The practical effect,” he points out, “is that employers don’t feel the pressure to make their workplace as safe as possible for their workers.”

Source:
“Disney, SeaWorld accident lawsuits face tough odds” (Orlando Sun Sentinel, September 13, 2010)

German roller coaster manufacturer Maurer Sohne issued a safety bulletin on September 2 warning that stress testing of its “X-Car” ride vehicles — the trains used in Universal Studios’ Hollywood Rip Ride Rockit roller coaster — may have a potentially serious safety flaw. The coupling bars used in the rides may crack under stress.

Universal Studios has announced that its year-old Rockit coaster is closed indefinitely, but says it is not due to product liability or premises liability concerns. No tourist accidentsrelated to cracked coupling bars on its Rockit ride have been reported publicly. The theme park says that the ride is closed for regular maintenance and that the coupling bar issue has already been addressed.

Rockit’s Manufacturer Urges All Theme Parks to Close the Rides
When it discovered the safety problem, Maurer Sohne urged all theme parks that have its “X-Car” rides to immediately shut them down and conduct metal fatigue and stress tests.

The ride manufacturer also told parks that had found any cracks in the rides’ coupling bars or coupling elements to keep the rides closed indefinitely “to prevent serious accidents posing a danger to health and life of persons.”

If visitors to a theme park were injured or killed on the ride because of defective parts, Maurer Sohne could face product liability claims, as could the theme park.

Universal Studios Claims Ride Shutdown Unrelated to Manufacturer Warning
The Rockit has been closed since September 15. Universal Orlando has not said when the roller coaster will reopen but told the media that the shutdown has nothing to do with Maurer Sohne’s warning.

Universal Orlando spokesman Tom Schroder says that since the ride is already closed, it has decided to keep it closed to perform scheduled annual maintenance.

“For us, it makes sense to take advantage of the fact that it is already closed for maintenance and perform additional annual maintenance work,” he said.

“We are obsessive about safety. We have aggressive inspection and safety programs in place for all our rides and attractions. Those programs meet or exceed all manufacturer guidelines. Anything in a September 2nd manufacturer’s advisory would have been dealt with weeks ago.”

Nevertheless, the Orlando Sentinel questioned why the ride was closed down before its scheduled annual maintenance if it wasn’t to address the safety warning. “Just why Rockit closed in the first place remains something of a mystery,” the Sentinel said.

Sources:
• “Maker of Universal coaster warns of safety issue” (Orlando Sentinel, September 20, 2010)
• “Universal’s Rip Ride Rockit coaster to remain closed indefinitely” (Orlando Sentinel, September 20, 2010)

According to the Consumer Product Safety Commission, 10 reports of injuries to children, six of which required medical attention, prompted Fisher-Price to initiate a massive product recall. Due to product liability concerns, the toymaker is recalling more than 11 million tricycles, high chairs and toys.
Most of the children’s products and toys being recalled were sold in the United States, but around 400,000 were sold in Canada.

Although CPSC Chairman Inez Tenenbaum praised Fisher-Price, a unit of Mattel, Inc., for “taking the right steps by agreeing to these recalls and offering consumers free repairs or replacement,” she said that manufacturers need to do more to prevent safety issues before products ever reach store shelves and product liability concerns arise.

Protruding Ignition Key on Tricycles Could Cause Injuries
The CPSC says that the tricycles and high chairs were the products that had reportedly caused injuries. About 7 million Fisher-Price Trikes and Tough Trikes toddler tricycles are being recalled. Some feature popular characters including Dora the Explorer and Barbie.

The affected trikes have a plastic ignition key near the seat that protrudes, which children could strike, sit on or fall on, causing injury. The CPSC specified that the injuries could include genital bleeding.

Storage Pegs on High Chairs Could Cause Serious Cuts
The high chairs being recalled include more than 1 million high chairs under the brands Healthy Care, Easy Clean and Close to Me. There have been 14 reports of problems, although not all resulted in injuries.

These high chairs have pegs on the back that can be used for storage. However, children may fall against the pegs and cut or injure themselves. Seven children were hurt by falling on the pegs and required stitches.

Other Fisher-Price Baby and Children’s Toys Recalled for Posing Choking Hazard
Although no injuries have yet been reported to the CPSC, Fisher-Price has also issued a product liability recall on other products after receiving reports of small parts coming off the toys, which poses a choking hazard.

Fisher-Price is recalling more than 2.8 million of the following toys because they contain an inflatable ball. The CPSC has received more than 50 reports of the valve of the ball coming loose, posing a choking hazard to small children:
• Baby Playzone Crawl & Cruise Playground
• Baby Playzone Crawl & Slide Arcade
• Baby Gymtastics Play Wall
• Ocean Wonders Kick & Crawl Aquarium
• 1-2-3 Tetherball
• Bat & Score Goal toys
Around 100,000 toys with cars are being recalled because the wheels on the purple and green cars can come off and pose a choking hazard:
• Fisher-Price Little People Wheelies Stand ‘n Play Rampway toys
For specific information about dates of sale and model numbers for the recalled products, please visit the product recall page of Fisher-Price’s website.

Source:
“Fisher-Price recalls more than 11M kid products” (Associated Press, September 30, 2010)

Two commercial properties in Seminole County have been declared EPA Superfund sites because they are contaminated with hazardous waste. The EPA’s Atlanta office says toxic industrial chemicals have made their way underground and threaten the Floridan Aquifer — the region’s primary source of drinking water — but currently pose no immediate health risk.
If any area residents do become injured or sickened by the hazardous waste, the property owners could be held liable in court under a premises liability or product liability theory.

The EPA and the Florida Department of Environmental Protection are working to identify the party responsible for one of the properties and attempting to get the other, General Dynamics Corp., to cooperate with cleanup requirements. In addition to being required to pay potentially millions of dollars for the cleanup, the property owners could face federal fines and other penalties.

Sanford Dry Cleaner and General Dynamics Property Near Longwood Contaminated
Central Florida now has nine Superfund Sites, out of 53 sites in the state. Beyond the newly designated sites in Sanford and Longwood, other Central Florida Superfund sites include one in Orlando, two in unincorporated Orange County, one in Volusia County, two in south Brevard County and one in south Lake County. Superfund sites are designated the nation’s most dangerously polluted property.

Between the 1940s and the early part of this decade, several dry-cleaning businesses operated at the Sanford site, which is on Palmetto Avenue several blocks south of Lake Monroe in a historic part of downtown. Sanford took ownership of part of the site through code-enforcement proceedings, and the other part belongs to Metro Orlando Affordable Housing.
The contamination on the site is from the cleaning solvents tetrachloroethylene, or PCE, and trichloroethylene, or TCE, both of which are known to cause cancer.

According to the Department of Environmental Protection, “The long period of operation and the multiple owners and operators make it difficult to identify a responsible party.”
The property near Longwood, which fronts U.S. Highways 17-92 between State Roads 434 and 419, was once used by General Dynamics Corp., which operated an industrial site there from the mid 60s to the early 80s. Other companies have also used the property. Solvents from an adjoining property have complicated the contamination on the property.
As with the Sanford property, the Longwood property is contaminated with TCE.

Tom Lubozynski, a state Department of Environmental Protection administrator for hazardous-waste cleanups in the Orlando region, said “[f]or General Dynamics Longwood, we turned that property over to EPA because the responsible party was not responsive to us.”

Further investigation needs to be completed before a final determination of responsibility and an estimate of the cleanup costs can be released. Any toxic exposure claims by individuals would be handled separately through product or premises liability lawsuits.

Source: Orlando Sentinel, “EPA flags 2 contaminated sites in Seminole County,” Kevin Spear, September 28, 2010

An Orlando woman was forced into a car accident by another driver who drove abruptly into her path and then fled the scene, police say. As she tried to avoid a collision, her SUV flipped and the woman was dealt life-threatening injuries.
The single-vehicle crash occurred on the westbound exit ramp from Interstate 4 to Sand Lake Road in Orlando. The 35-year-old woman was exiting the freeway in her Jeep Wrangler when another vehicle that had already passed the exit zone swerved onto the exit and cut in front of her.

According to Orlando police investigators, the other vehicle, which they believe was a white Toyota or Honda sedan-style car, had already crossed beyond the proper area to change lanes and exit the freeway. In order to exit, the vehicle crossed “through the safety gore and into the path of” the Orlando woman’s Jeep.

The woman took evasive action to try to avoid the car accident, but her Jeep struck a raised concrete barrier and flipped over. The Jeep landed in the outside lane of westbound I-4.
The woman was described by police as having life-threatening injuries. She was taken to Orlando Regional Medical Center.
Police have not been able to identify the driver of the white Honda or Toyota sedan. As they cannot identify a suspect, no charges are currently pending against the reckless driver.
Anyone with information about the driver who caused the SUV rollover accident on I-4 should contact Orlando police.

Source: Orlando Sentinel, “Police: Woman hospitalized after flipping SUV trying to avoid another vehicle,” Jeff Weiner, October 19, 2010

Four manufacturers of children’s products recalled their baby cribs and strollers this week due to product liability concerns: Graco Children’s Products Inc., Angel Line, Ethan Allen and Victory Land Heritage Collection. The product recalls include more than 40,000 cribs and about two million Graco strollers.
Graco Recalling Two Million Quattro Tour and MetroLite Strollers

The Graco stroller recall was announced on Wednesday. It was initiated voluntarily by the company because of multiple reports of injuries to children and four infant strangulation deaths.

According to the U.S. Consumer Product Safety Commission (CPSC), infants — particularly those under a year of age — can become wedged between the seat bottom and the stroller tray if they are not properly strapped in. Their heads and necks can become trapped by the tray, causing cuts and bruises or difficulty breathing.

The affected strollers were mostly between November 2000 and December 2007. Consumers can call Graco’s recall hotline at 877-828-4046 to check model numbers and request a free repair kit.

Nationwide 3-in-1 Crib Recall: Angel Line, Ethan Allen and Victory Land Cribs
Around 40,650 cribs sold by Ethan Allen, Angel Line and Victory Land Heritage Collection are being recalled due to product liability concerns brought about by six reports of child injuries, the CPSC announced today, October 22, 2010.
The 3-in-1 style cribs have drop-down sides that can detach, either because the hardware is faulty or due to wear and tear. This creates a gap where a young child could become trapped or suffocated. It could also allow the child to fall out of the crib.
Cribs with drop-down sides have been blamed for at least 32 deaths of infants and toddlers since 2000. More than 9 million drop-side cribs have been recalled in the past five years, and the CPSC has proposed rules to ban the manufacture, sale or resale of such cribs altogether.

An October 22 multi-vehicle truck accident on I-595 near Davie was quickly followed by another multi-car accident, when drivers veered and swerved in a vain attempt to avoid the first crash, according to the Florida Highway Patrol. The resulting mess ended with a chlorine spill, five drivers being ticketed and three hours of snarled traffic.

According to Sergeant Mark Wysocky, a spokesperson for the FHP, the first wreck occurred before 8 a.m. on Friday, just as rush hour was beginning. Three vehicles, one of them a pool-cleaning truck filled with at least 30 gallons of chlorine, collided on the westbound side of I-595 between South Pine Island Road and Nob Hill Road in Broward County.

Just after the initial truck accident, five other vehicles crashed as they tried to avoid the mess. No serious injuries were reported in either pileup.

The pool-cleaning truck accident required the FHP to close the westbound lanes of I-595 for nearly three hours in order to allow a Broward Sheriff Fire Rescue hazardous materials crew to clean up the chlorine and other acidic pool chemicals that poured from the pool maintenance truck.

Westbound rush-hour drivers were forced to detour onto South Pine Island Road. “Rubberneckers” on the other side of the Interstate caused eastbound traffic to experience significant delays, as well. Normal traffic was reportedly restored by approximately 10:40 a.m.

The driver of the pool-cleaning truck was cited with failure to use due care, leading to the initial truck accident, said Wysocky. Four of the drivers involved in the second multi-car pileup were also ticketed for failure to use due care.

Source: CBS 4 News, “Chemical Spill Bogged Down Traffic On I-595,” October 22, 2010

The Florida Highway Patrol has determined that driver distraction was responsible for a multi-car accident on October 29 on I-95 in Delray Beach. Four people were injured in the accident, which involved a semi-truck.

Three vehicles were involved in the car-truck accident. According to the Florida Highway Patrol, all three vehicles were headed southbound on Interstate 95 at shortly after 6 a.m. on the morning of Friday, October 29.

As the two cars, the semi-truck and surrounding traffic approached the Linton Boulevard exit from I-95, the driver of a passenger car in the center lane apparently was not paying attention and failed to notice that the traffic ahead had slowed down.

The driver swerved left to avoid the slowed traffic, then realized that doing so would take the car out of its proper lane. That driver then overcorrected by jerking the steering wheel to the right. The driver then lost control of the vehicle.

The right side of the distracted driver’s car struck the left side of a second passenger car. The first car then spun out of control, collided with a nearby semi tractor-trailer and ultimately struck the concrete median that divides the northbound and southbound lanes of the Interstate.

CBS 12 News did not give any information about what the driver had been doing that caused the distraction.
Three people in the distracted driver’s car were injured. One was reported to be in critical condition and the other two in serious condition on Friday, according to CBS 12 News of West Palm Beach. One person from the second car was reported to have minor injuries, but all four had to be transported to local hospitals after the truck accident.

The driver of the truck was not injured in the multi-vehicle collision.

Source: CBS 12 News, West Palm Beach, “FHP UPDATE: I-95 wreck in Delray caused by inattentive driver,” October 29, 2010

The Mississippi driver of a pickup truck died in a Florida truck accident on Tuesday, according to a statement by the Florida Highway Patrol. The fatal accident occurred on the Interstate 10 bridge over Escambia Bay in Escambia County.

At just before 9 a.m. on November 2, the 54-year-old Mississippi man was driving on the westbound span of the I-10 bridge. A semi tractor-trailer driver had stopped in the emergency lane of the span.

The pickup driver drifted out of his lane and into the emergency lane, causing him to collide head-on with the rear of the semi tractor-trailer.

The Mississippi man was taken to Sacred Heart Hospital in Pensacola for treatment. Unfortunately, he died of his injuries shortly afterward at the hospital. The commercial driver was not injured in the truck accident.

Both of the drivers were said to be wearing seat belts at the time of the accident. The Florida Highway Patrol believes that driver distraction was what caused the pickup driver to drift out of his lane. Alcohol is not believed to have played any role in the fatal truck wreck.

It is not known whether the driver of the pickup truck was using a cell phone while driving or engaging in another activity that may have distracted him from driving. He may simply not have been paying attention, or he may have been too drowsy to drive. Driver distraction, including texting and other cell phone use while driving, are growing causes of car and truck accidents across the United States.

Source: Pensacola News Journal, “Mississippi man dies from I-10 crash injuries,” November 4, 2010

The driver of the Lynx bus that struck and killed a 10-year-old boy on November 5 had a driving record with no more than the average number of collisions, the Orlando Sentinel reported today. His work-related driving record included several commercial vehicle accidents that did not involve injuries, and his personal driving record includes one citation for a 2007 car accident in Orange County.

At about 7 p.m. on Thursday, November 5, however, the bus driver struck two boys who were crossing a street in Kissimmee.

According to Kissimmee police, two brothers, aged ten and twelve, were trying to cross busy Columbia Avenue at the Dyer Boulevard intersection. They were in a crosswalk and had a green light. There was heavy construction in the area, and both streets were partially closed, which may be why a police spokesperson said that the Lynx bus also had a green light.
In any case, the bus turned left onto Columbia Avenue and struck both boys. The 10 year-old was pulled under the bus and was pronounced dead on the scene. The 12 year-old was seriously injured in the bus accident but is expected to recover.
Too Soon to Know Whether Bus Driver Will Face Charges
After the fatal accident, the bus driver was interviewed by Kissimmee police and subjected to a standard blood-alcohol test. Kissimmee police spokesperson Stacie Miller said the investigation of the wreck is ongoing and it was too soon to say whether the driver will face charges related to the children’s injuries and wrongful death.

According to Lynx spokesperson Matthew Friedman, the driver had worked for the company for nearly seven years. He had been disciplined several times for unexcused absences but had no other personnel issues in his file.

His file does indicate that the driver had been involved in several commercial vehicle accidents during his time with Lynx. In one case, the bus he was driving struck and slightly dented a car while the driver was making a turn. In another case, the driver was involved in a collision when trying to avoid the scene of a car wreck, and the collision broke the bus’s side mirror.
Friedman indicated that the number of motor vehicle accidents this driver had been involved in was not unusual for a commercial driver.

The man’s personal driving record indicates that he was involved in a car or truck accident in Orange County in 2007 and was issued a traffic citation.

The bus accident that ended in the Kissimmee boy’s death was the first pedestrian accident the driver has been involved in, as far as authorities know.

The family of the two boys is hosting a public vigil this evening in honor of their dead son. The event will take place at 6:30 p.m. at the site of the accident, the intersection of Columbia Avenue near Dyer Boulevard. It will involve prayers and a candlelight service and will be the only service the family will hold that will be open to the public, according to the family’s attorney.

Sources:
• Orlando Sentinel, “Family of boy killed by Lynx bus to host vigil,” Henry Pierson Curtis and Anika Myers Palm, November 10, 2010
• Orlando Sentinel, “Kissimmee police: Brothers hit by Lynx bus – 10-year-old killed,” Jeff Weiner, November 5, 2010