Category Archives: Wrongful Death

Accidental Child Drownings And The Florida Residential Pool Safety Act

“Accidental Child Drownings and Pool Safety Act in Florida.”

Many homeowners in Florida utilize websites like VRBO and AIRBNB to list their properties for short-term rental.  There are, however, some serious safety issues related to such properties that have pools which could easily expose the homeowner to liability if a guest is injured or is killed because of accidental drowning.

The laws regulating pools in Florida are mainly categorized as residential or public.  This distinction is important since depending upon the pools’ classification, certain laws will and will not apply.

What is a Public Lodging Establishment?

A home listed on Airbnb may be considered a “public lodging establishment” if it is a “vacation rental.” Florida Statute § 509.242 (b) defines a vacation rental as “any unit or group of units in . . . any individually or collectively owned single-family, two-family, three-family, or four-family house or dwelling unit that is also a transient public lodging establishment.” A “transient public lodging establishment” is defined as “any unit . . . dwelling . . . within a single complex of buildings which is rented to guests for periods of at least 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests.” Fla. Stat. Ann. § 509.013 (1).

Many of the home share properties in Florida will likely fall into the classification of a vacation rental given its transient use and its advertisement to the public as a place regularly rented to guests.

Though many of these properties would most likely be classified as a “public lodging establishment,” a short-term vacation rental’s pool would be considered a residential pool; thus, it would be subject to the Residential Swimming Pool Safety Act (“Act”).

A public swimming pool is defined as a pool that may be accessed with or without a fee and includes, but is not limited to, pools operated by public entities or pools which serve camps, churches, daycare centers, group home facilities of eight or more clients, or the cooperative living projects of five or more living units, such as apartments and hotels. Fla. Stat. Ann. § 514.011 (2).


FROM 2017 TO 2019 COMBINED, FLORIDA WAS RANKED THE HIGHEST IN THE U.S. FOR UNINTENTIONAL DROWNING DEATH RATE AMONG CHILDREN AGES 1 TO 4 YEARS (6.29 PER 100,000 POPULATION).


What is Considered a Residential/Private Pool?

This understanding is further confirmed by the Act’s definition of “residential,” which defines the term as a one-family or two-family dwelling. Fla. Stat. Ann. § 515.25 (10). A vacation rental home would likely be considered a single-family dwelling. Further, a residence’s pool would fit into the 514.011’s (Florida Statute) definition of a private pool. A “private pool” is defined by this Florida Statute as one which is used “only by an individual, family, or living unit members and their guests which does not serve any type of cooperative housing or joint tenancy of five or more living units.” Fla. Stat. Ann. § 514.011 (3). During a rental term, a vacation rental’s pool is used only by an individual, family, or other temporary members of that living unit and is not open to the public or any non-guests of the tenants. The determining factor on the classification of a pool that serves dwelling units seems to turn on the number of units within the complex. If a vacation rental’s pool serves a single dwelling unit, it would likely be considered a private pool.

Florida’s Residential Pool Safety Act

Under Florida’s Residential Pool Safety Act, a residential (including those used in any home share program) pool must be equipped with certain safety features. To pass a final inspection, a residential pool must meet at least one of the following requirements:

  1. The pool must be equipped with an approved safety cover
  2. All doors and windows which provide access to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor
  3. The pool must contain an independently certified alarm that sounds upon detection of accidental or unauthorized access to the pool.
  4. Pools must be protected by a barrier

Pool Barrier Requirements

Fla. Stat. Ann. § 515.27

(1). Further, pools must be protected by a barrier. Fla. Stat. Ann. § 515.29

(2). Barriers must be at least four feet high without any gaps, openings, or other components which would allow a young child to circumvent the barrier. Id. A barrier must be placed “sufficiently away” from the water’s edge to prevent someone from immediately falling into the pool if they penetrated the barrier. Id. If a gate is used to provide access to a pool, it must be self-closing, self-latching, open outwards, and its release mechanism must not be placed in a manner of which a young child can operate it. Fla. Stat. Ann. § 515.29

(3). Barriers may not be placed in such a way that allows an extrinsic object to be used to climb over it. Id. A dwelling (part of the house) wall may serve as part of a barrier so long as it does not contain a door or window that would allow access to the pool. Fla. Stat. Ann. § 515.29

(4). If the dwelling barrier wall has windows, the windows must be equipped with an acceptable alarm, be screened, or protected and have a bottom sill height of 48 inches or more, or the pool must have the detection alarm. Fla. Bldg. Code R4501.17.1.9. Barrier wall doors would have to be self-closing and contain a self-latching mechanism at least 54 inches above the threshold or the pool must have a detection alarm system. Id.

Public Pool Requirements

There seems to be a little distinction among public and residential pools regarding safety requirements to prevent drownings. Public pools must contain the following safety features:

  1. An anti-entrapment system or a similar approved device
  2. A shepherd’s hook within 16 feet of the pool
  3. At least one 18-inch diameter lifesaving ring with enough rope to reach all parts of the pool from the pool deck.

Fla. Stat. Ann. § 514.0315; Fla. Admin. Code Ann. r. 64E-9.00.

In sum, any home-share rental unit’s pool would likely be subject to the Residential Swimming Pool Safety Act and not be considered a public pool. These two pool classifications have few distinctions relevant to the instant case with the public pools requiring lifesaving devices and devices to prevent persons from being entrapped by drains.

Many home share properties are not in compliance with Florida’s Residential Pool Safety Act but despite this place their homes on the market.  Many times, these homes are seeking out tourists who are unfamiliar with pool safety and who are traveling with young children.

Protecting these young children was the reason the Florida Legislature passed the residential pool safety act and homeowners should make certain their pools are in compliance with the Act.

Watch the YouTube Video with Joe Zarzaur  >

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you or a loved one has been affected by any homeowner’s failure to comply with this act, put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe, or by requesting a free case review through our website.

Sources:

http://www.floridahealth.gov/programs-and-services/prevention/drowning-prevention/index.html

Florida statute – http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html

When is a Car Wreck Considered Wrongful Death?

 

 

Car wrecks that result in the death of the victim go from being called personal injury cases to wrongful death car wreck cases.  Car wrecks that result in the death of the victim change in legal terminology because the death of the individual means that the claim can only be brought under Florida’s Wrongful death statute.

Despite the overwhelming amount of information about careless or unsafe driving, accidents can still happen. When someone’s action lead to another’s death, whether it is accidental, intentional, or a car manufacturer defect, the deceased’s loved ones may be entitled to compensation for the wrongful death. Wrongful death in a car accident can happen for a variety of reasons such as negligence or recklessness by another motorist, criminal activity, or even because of a manufacturing defect by the automaker.

Below you will find key information about wrongful death car accidents, including the common causes of car accidents, and your options when filing a claim.

What are the Main Causes of Car Accidents?

Car accidents are a common occurrence. Think about all the times you have been sitting in rush hour traffic listening to a traffic report on the radio where the announcer lists out the number of accidents in a given time period. Common causes of car accidents that can lead to a fatality include:

  • Texting and driving (distracted driving)
  • Driving under the influence of drugs (including prescription drugs) and/or alcohol (DUI)
  • Reckless driving (speeding, racing, passing when it is unsafe, etc.)
  • Poor weather conditions
  • Driver fatigue
  • Street and highway defects
  • Car manufacturing defects
  • Inexperienced and/or elderly drivers
  • Running a red light or stop sign
  • Failing to yield
  • Speeding

There are no more serious cases in our legal system and in our firm, these files have a special place for all of us working with these families.

The Florida Statute of Limitations

Florida statute of limitations for wrongful death cases is only two years as opposed to the four-year statute of limitations for injury cases.  Given this shorter time limitation, it is imperative to have a law firm working on the wrongful death case as soon as the family can deal with discussing the case.

At the same time, this is the wrongful death of a loved one is always a shock.  It is always the result of a traumatic and unexpected incident.  So, it is completely normal and understandable for families to deal with the initial grief of the loved one before having to discuss the subject with a law firm.

Securing Evidence

It is important, however, that as soon as possible the law firm be engaged since they will need to secure evidence and perform an investigation.  The insurance company or entity responsible for the death will immediately send a team of experts out to start working on the defense of the case.  They will always have a head start on the family’s lawyer since the family is always dealing with the grief and loss of a loved one first.  The companies are only thinking about how to minimize their legal liability.

Florida’s Wrongful Death Statute

Florida’s Wrongful Death Statute has specific provisions that control every facet of the case from who can bring the case to who can legally recover for the death of the victim.  The phrase wrongful death means that death is brought about by the wrongful conduct of another.  This wrongful conduct can range from intentional acts to pure negligent conduct and every state of mind in between.

As we have discussed in previous posts, wrongful death cases are brought on behalf of the legal survivors of the victim and in some rare circumstances can also include claims to punish the wrongful actor.  Florida’s Wrongful Death Law dictates everything in relation to these cases from the proper party to bring it and who may benefit from the suit and who may not benefit.

If there is a car wreck that involves a death to one or more of the victims, then that family should be consulting an injury lawyer that has experience with the Florida Wrongful Death Act.

If you or a loved one is involved in a car wreck and there is a death of one of the victims, it is important to hire a law firm that has plenty of experience navigating Florida’s Wrongful Death Act.  For more information and free consultation of your Wrongful Death case from a car wreck, please find us on the web at zarzaurlaw.com or call us at 855Hirejoe.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you’ve been the victim of an auto accident, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

 

Sources:

https://www.findlaw.com/injury/torts-and-personal-injuries/wrongful-death-in-a-car-accident.html

 

 

 

Who Can Bring a Florida Wrongful Death Act in Action?

Wrongful Death Act BenefitsMost of us remember civics class in elementary and junior high that introduced us to how our country was formed.  We all have learned about the three separate branches of government and understand that the laws of England were a huge influence on the initial laws of our country.  This historical law is referred to as “common law” which is a law that derives from court decisions.  At “common law”, once a person died their right to sue for personal injury also died with them and there was no right to bring a suit for a civil wrong once a person died.

History of the Wrongful Death Act Passed in Florida

By 1883, however, Florida’s legislature decided that the common law not permitting someone to sue for their own death was inequitable.  That year, Florida passed the first Florida Wrongful Death Act.  So, now, since the judicial branch doesn’t make new laws, the legislative branch in Florida felt the need to pass a specific law that allowed for a person to sue in the name of their deceased loved one.  This Florida Wrongful Death Act provided a statutory basis (as opposed to a common-law basis) on which to bring an action on behalf of a dead plaintiff.  This same Florida Wrongful Death Act has been passed forward and with some revisions but now is codified in Florida Statute Section 768.19.  This statute dictates how, when, and who can bring a Florida Wrongful Death case.

Section 768.19 provides that Florida’s Wrongful Death Act provides a cause of action for the survivors based upon an underlying tort committed against the decent that caused his/her death.  The event causing the death must have entitled the person injured to have maintained an action had they not passed away.  In a way, Florida’s Wrongful Death Act just extends the right to bring an action that causes the death of a plaintiff. This right is passed on to the decedent’s “survivors”.

Wrongful death claims arise out of many types of conduct. However, several common causes of wrongful death include:

  • Car accidents,
  • Pedestrian and bicycle accidents,
  • Unsafe working conditions,
  • Unsafe commercial and residential premises,
  • Medical malpractice,
  • Dangerous products,
  • Preventable child deaths including accidental drowning, and
  • Accidental poisoning.

Who Can Bring the Florida Wrongful Death Act Action?

So, the next question to answer in regard to Florida’s Wrongful Death cases is who can bring the Florida Wrongful Death action?  In Florida, only the personal representative of the decedent’s estate can be the action. A personal representative of an estate can be established only by the probate court for the county where the decedent lived.  In determining who the personal representative is, a probate court will first look at the decedent’s preference.  This preference would be properly set out in a last will and testament.  If the will is done properly it will nominate a personal representative as well as back up personal representatives should her first election not be qualified or eligible for some reason.  If there is a selection made in a properly executed will, then the probate court will usually give deference to that selection and will typically approve that personal representative of the decedent’s heirs.  If they cannot agree the preference goes to the relative who is closest in kin.  If more than one person is closest in kin, then the probate court will select the best qualified for the position of personal representative.

The only person who can legally hire a lawyer for a wrongful death case is the personal representative. Any heir that hires a lawyer for a wrongful death case who is not the personal representative, or the presumptive personal representative will not be permitted to bring the case.  That lawyer may represent your share of the damage claim, but the right of the Florida Wrongful Death action only allows the personal representative nominated by the probate court to hire the lawyer and bring the action.

Since most people who die as the result of negligence do not expect to pass away when they did, many die without a will. Hence the probate court must then select the best person for a Florida Wrongful Death case to serve as the personal representative. In the absence of a will, the preference for the personal representative goes to the surviving spouse.  In the absence of a surviving spouse, then the probate court will consider the order of preference would be the person selected by a majority of the persons who make up the estate.

What is the Difference Between the Estate and the Survivor Claims?

So, who are the “survivors” for a decedent and what is the difference between the estate’s claims and the survivor’s claims?

  • The ESTATE is basically all the business issues related to the decedent. For example, if the decedent dies with debt then the Estate will be forced to deal with the debtors with the assets that existed at the time of the death. Medical bills, funeral bills and other related expenses are almost always considered “estate” expenses and will be paid by the estate.  Likewise, if others owed money to the decedent then the estate will seek to have those monies collected.
  • SURVIVORS are children of the decedent, spouses of decedent and if no spouse then parents of the decedent. This sometimes becomes a complicated issue and, like many other Florida Wrongful Death issues, requires close attention by a board-certified civil trial lawyer. The claims of survivors are more personal relationship claims like loss of parental guidance, mental pain and suffering for the loss of that person, and/or loss of support or services. In Florida the one biggest components of these damages are the mental pain and suffering damages since those are the ones that a jury can give monetary damages for the loss of a father, mother, son, etc. These damages are not limited by anything other than the evidence of how good that relationship was and how it was expected to develop in the future. Another item of damage available to survivors are the “net accumulations” of the decedent.  Florida’s Wrongful Death Act defines net accumulation as net future earnings.  In determining “net earnings” the court must look at most likely future gross earnings and then take from those earnings any reasonably liabilities and expenses.  The remaining amount would be the net earnings or “net accumulations.”

Wrongful Death in a Medical Malpractice Claim

The Florida Wrongful Death law is a creature of the Florida legislature and since that its origin, it can be amended by that same body. Florida’s Wrongful Death Act was substantially amended in the late 1990s as a result of medical malpractice tort reform.  As a result, Florida’s Wrongful Death Act was amended in medical malpractice cases to not permit a medical malpractice survivor to collect for mental pain and suffering damages if the decedent dies without a surviving spouse or child under 26 years of age.  For example, Florida’s Wrongful Death Act provides that if an unmarried person dies without children then the heirs and the estate can only recovery for the bills and other monetary damages like net accumulations.  This makes nearly every potential medical malpractice case where there is no surviving spouse or child under 26 are not worth pursuit since these cases will have expenses between $100,000.00 and $250,000.00 just to get to Court.  This has basically made it next to impossible to bring a medical malpractice case for any person that dies without a spouse or children under 26 years of age.

Our wish is that you and your family are never tasked with having to consult with a lawyer about a Florida Wrongful Death case but if you or a loved one does find yourself in such a dreadful position you should seek advice from a Florida Board Certified Civil Trial Lawyer.  This will assure you and your loved ones that you are consulting someone with vast experience in this area of the law and whose reputation has been verified by other lawyers and judges who work in this area of the law.

For more information on Florida’s Wrongful Death Act, please feel free to contact our firm on the web at zarzaurlaw.com or call us at 855HIREjoe.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you’ve been the victim of an accident, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Sources:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.21.html

https://www.escambiaclerk.com/223/Probate

 

The Alarming Truth About Smoke Detectors.

Prior to this particular case, all smoke detectors were the same to me. Then in 2010, I was called on to assist in a case involving the untimely death of a family in a house fire.

The family was sleeping in their home when a fire in the living room started because of a surge protector device malfunctioning. A spark from this power strip ignited a couch cushion and a fire ensued. When a fire starts in a couch cushion the smoke that is created is some of the most dense smoke from any fire. Unfortunately, this same smoke is also the most fatal type of smoke in that it literally smothers those around it.

This particular family was in a house that was equipped with ionization smoke detectors.

What is an Ionization Smoke Detector?

Ionization smoke detectors are just one of two types of smoke detectors.  Ionization smoke detectors work by having a unit within the detector that contains specially charged particles that are affected by the presence of smoke particles.  Once the smoke particles enter the detector and effect the particles within the unit.  Once those particles are impacted by the smoke particles, it breaks the circuit and the alarm sounds.  Photoelectric detectors work by having a beam of light between two mirrors and if smoke particles break that beam in any way then the dectector will alarm.

The thing that is not clear about these detectors is that the company like to sell them as “smoke alarms” and since the ionization detectors is an older technology the manufacturers have developed a more efficient and cheaper method of producing them.  They are cheaper and the companies make more money when they sell them since, by volume, they move more of these.
The Issue
The issue is that ionization detectors are slow at detecting slow smoldering fires and better at detecting fast flaming fires.  Slow smoldering fires are deadly fires since they would include furniture fires that are deadly even before there are any significant flaming.  Since most folks think that all smoke alarms are the same they generally purchase the cheapest of the smoke detectors.  This would mean that most are ionization detectors when they only protects the house from smoke from fast flaming fires.
This family was killed from a slow smoldering fire that started near a couch and the house was filled with toxic smoke killing the occupants from smoke inhalation before there was any substantial flaming.  The ionization detectors in the house were recovered and were powered up and only began to alarm when the fire department arrived on the scene.
Capitalizing on the Ignorance of Consumers
The case against the manufacturer of the smoke detectors centered around the defects in the design and marketing of these products since they were capitalizing on the ignorance of the consumers and not adequately informing the consumers to the dangers of only having one type of smoke detectors.
Of course, the manufacturer argued that their packaging insert clearly described the difference between the two types of detectors.  They moved for summary judgment and the court denied their motion.  The case was later settled for a confidential amount that included non monetary requirements that the manufacturer provide educational services to the general public concerning the difference between the tow type of detectors and the recommendation that consumer purchase detectors that have both technologies.
Check Your Smoke Detectors
For the best protection of your family, you should make sure that you have smoke alarms that have both photoelectric and ionization technologies.  The companies now make detectors that have both technologies contained in the same unit.
The recovery for this family was significant to both the survivors and the public since we were able to affect consumers moving forward.  There is still much to do since many still do not appreciate the difference between the two types of smoke detector technologies.

Joe Zarzaur, founder of Zarzaur Law, P.A., a Pensacola Personal Injury law firm, has created this blog in an effort to educate the many citizens and visitors of Pensacola, Florida about their legal rights. Joe Zarzaur knows the ins and outs of Florida law, and offers friendly-quality legal help whether you have experienced an auto accident/car wreck, have been a victim of medical malpractice or are in need of a personal injury lawyer. For more information, visit: https://www.zarzaurlaw.com

11 E Romana Street
Pensacola, FL 32502
Telephone: 850-444-9299
Email: info@zarzaurlaw.com

Sources:
https://www.nfpa.org/Public-Education/By-topic/Smoke-alarms/Ionization-vs-photoelectric
https://www.safehome.org/resources/fire-prevention-guide/

Wrongful Death: Who Can Sue?

The worst situation for any family is a sudden death of a loved one especially when it is due to the carelessness or negligent behavior of another.

wrongful death claim A wrongful death claim is a personal injury lawsuit made when someone is killed due to another party’s negligence or intentional act of harm. Wrongful death claims allow the estate of the deceased person to make a claim against the party liable for the death.

Although a criminal case related to the death might also be filed in court, it addresses different concerns, and it typically does not result in damages being paid to the estate or the surviving family members.

Who can bring forth a wrongful death action in Florida?

Survivors of the decedent are those that can make a wrongful death claim:

  • Spouse, children and parents of the deceased
  • Dependent blood relatives and adoptive brothers and/or sisters

What damages can be sought through a wrongful death claim?

 Survivors making a wrongful death claim in Florida can obtain compensation for damages including:

  • pain and suffering to the deceased occurring before death (degenerative diseases/debilitating injuries)
  • losses incurred by the deceased’s family: lost support and services to survivors-loss wages; mental anguish; financial support; lost companionship and pain and suffering; parental guidance (in case where deceased has children)
  • funeral, burial, medical, and/or hospital expenses

How long do you have to file a wrongful death claim?

In Florida, the statutory deadline for bringing forth a wrongful death claim is two years from the date of death.

If you have lost a loved one, it is important to consult an expert board-certified lawyer with the experience and knowledge to represent you through such a difficult process. Here, at Zarzaur Law, P.A. we want to help you get the justice and compensation you deserve. We understand the sudden death of a loved one can impact family members for a lifetime and that is why we, at Zarzaur Law, P.A., make it a goal to fight for your rights. Call us any time at (855) Hire-Joe for a free legal consultation with a lawyer.

Joe Zarzaur, founder of Zarzaur Law, P.A., a Pensacola Personal Injury law firm, has created this blog in an effort to educate the many citizens and visitors of Pensacola, Florida about their legal rights. Joe Zarzaur knows the ins and outs of Florida law, and offers friendly-quality legal help whether you have experienced an auto accident/car wreck, have been a victim of medical malpractice or are in need of a personal injury lawyer. For more information, visit: https://www.zarzaurlaw.com

11 E Romana Street
Pensacola, FL 32502
Telephone: 850-444-9299
Email: info@zarzaurlaw.com

Sources:
https://www.nolo.com/legal-encyclopedia/wrongful-death-lawsuits-florida.html