The 2 main categories of damages that may be recovered if a family member is killed in an incident or accident in Florida:
1. Damages recoverable by survivors.
2. Damages recoverable by the estate of the deceased.
This article talks about #1 and does not go into #2 (damages recoverable by the estate). This article only talks about the damages recoverable by survivors.
Certain survivors may get money for:
- mental pain and suffering
- lost support and services
- loss of decedent’s companionship and protection
- lost parental companionship, instruction and guidance
- medical and funeral expenses if paid by a survivor
Florida Statute 768.22.
In Florida, family members that fall under the category of survivors are entitled to the above damages if their relative is killed in an accident caused by someone else. Florida Statute 768.18 defines a “survivor” as the:
decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out-of-wedlock of a mother, but not the child born out-of-wedlock of the father unless the father has recognized a responsibility for the child’s support.
If you live in a state other than Florida – or in another country – and the decedent was killed in Florida, a survivor can recover damages if he or she can prove negligence.
Now let’s talk about your claim for damages. There is no guarantee that a survivor receives money if his or her family member (spouse, parent or child) is killed in an accident caused by someone else.
This is because the at fault person or company may have no insurance. Often in car accident cases, a family member is killed but the driver – or owner of the car – who caused the accident is uninsured or has very little bodily injury liability insurance.
There are certain situations where the owner of a car is liable for an accident even is he or she was not driving at the time of the crash. In Florida, bodily injury insurance is not required.
This comes as a shock to some people who are injured in car accidents. Even if drivers in Florida were required to carry bodily injury insurance, there would still be many people who would not have it as many people don’t care about following the law.
The insurance company – in a wrongful death case – that insures the at fault person or company does not have to settle a wrongful death case. The insurance company may want to take the case to trial if they feel that they can win.
There is always a chance that a jury could side with the person or company that caused the accident and then the plaintiff would get nothing. Also, if someone killed a family member and the guilty person has no insurance (or money) to pay the wrongful death claim, the family may get nothing.
Most Florida attorneys that I know are unwilling to sue someone who causes an accident if the person that caused the accident does not have insurance or money to pay a settlement.
This article applies to “general negligence” wrongful death claims and not wrongful death claims arising from medical malpractice. It also assumes that someone was at fault and they caused, in part or in whole, the death of another.
Every case is different. One different fact in a case could be the difference between getting paid a lot of money and getting nothing. Disclaimer: There is no guarantee that you get one penny in a case. There are so many factors that determine whether you may get money.
That being said, attorneys should know the settlement range of a case. I know an attorney in Florida believe that a starting point (as to how much a Florida accidental death case is worth) is to assume that a survivor could get a minimum value of $500,000 (in pain and suffering) multiplied by the percentage of fault on the person that caused the accident.
You can watch a short video on how to calculate how much money you may get for pain and suffering if your relative is killed in Florida. A formula that you could use to calculate the starting point (but again there is no guarantee) for the value of pain and suffering only in a wrongful death claim of 1 survivor (e.g. a child or parent) is as follows:
Formula: $500,000 x % of fault of the person that caused the accident.
I will give an example of a settlement where the parent of an adult child is killed in an accident in Florida.
Juan’s father was killed after a driver that ran a red light hit him. The driver admits that he was 100% at fault for running the light and crashing into Juan’s father. Therefore, we can assume that the at-fault driver was 100% at fault.
After entering the above numbers into the formula [$500,000.00 * 100% (fault of driver)], the result is $500,000 for pain and suffering. Juan could receive $500,000 for pain and suffering assuming the other driver has bodily injury insurance limits of $500,000 (or more).
If the driver that caused the accident was drunk or reckless, a survivor (child or parent) could get more money because the jury could be angered and want to punish the at fault driver. The closer that the survivor is with the decedent (person who died), the more money a survivor may be awarded.
For example, if a child lost a parent and the child spent 5 days a week with the parent, the child could be awarded more than $500,000 for pain and suffering.
Please remember that this article is only in reference to pain and suffering. In Florida, a family member (child or parent) could also recover for future loss of support and services from the date of death.
Actual Case (not mine): $1.2 million in compensatory damages to man as personal representative of the estate of another man, the decedent.
Myers contracted with Florida Power & Light (FPL) on a project that involved replacing a number of power poles in Manatee County. The contract between Myers and FPL required Myers to install four concrete poles, each approximately eighty-five feet long and each weighing approximately 21,000 pounds, along the shoulder of 15th Street East in Bradenton.
The contract specified that Myers was an independent contractor responsible for ensuring that the work was completed to FPL’s specifications, including providing the necessary traffic control while the work was in progress.
The scope of the contract between Myers and FPL required Myers to dig a hole for each new pole in a location specifically identified by FPL; transport the pole to the work site on a flatbed trailer; provide a crane at the work site to lift the pole from the flatbed trailer, raise it over the existing transmission and distribution wires, and lower it into the newly dug hole; finalize the setting of the pole; and then, in coordination with FPL, move the transmission and distribution wires from the old pole to the new pole.
On the day of the accident, while Myers’ personnel were digging the hole for the new pole, Merchant’s crane operator set up his rig based on his assessment of the site characteristics. Soon thereafter, Ronald Baker, the tractor-trailer driver for Rountree, arrived with the new pole strapped onto the flatbed trailer.
The length of the pole was such that it extended off the back of the flatbed trailer by several feet. Myers’ personnel directed Baker to park a short distance away from the site while they finished digging the hole.
Myers subcontracted the transportation of the pole to Rountree Transport & Rigging (Rountree), and it subcontracted the crane work to Palm Beach Trucking, LLC, d/b/a Merchant Transport, Inc. (Merchant).
Myers’ safety supervisor, Tommy Byrd, testified that he had placed traffic cones and warning signs on the side of the road on the approach to the work site and that his intent was to stop traffic in both directions on 15th Street East while the crane actually lifted the pole from the flatbed trailer and lowered it into the hole.
However, he testified that he did not believe that he needed to divert or stop traffic before that time because although the outermost left rear trailer tire was slightly on the roadway, neither the trailer nor its tires were impeding the flow of traffic.
While the tractor-trailer was parked on the side of the road, Allen Young was driving his Buick southbound on 15th Street East. He stopped approximately seventy-five feet before the Myers’ work site, waiting for traffic to clear so that he could turn left into a pawn shop parking lot.
Behind him, Roger Nyberg was driving in the same direction, traveling at 91 miles per hour in a 40-mile-per-hour zone and weaving in and out of oncoming traffic. Without braking, Mr. Nyberg slammed into the back of Mr. Young’s stopped car.
This impact pushed Mr. Young’s car forward and spun it around, slamming it by into the end of the concrete pole, which was still on the flatbed trailer on the shoulder of the road.
Mr. Young’s car came to a stop under the pole with Mr. Young stuck inside. Mr. Young was badly injured. He died from his injuries two years later.
The Estate argued that because Myers was engaged in an inherently dangerous activity it was legally responsible for any negligence of its subcontractors and therefore was not entitled to any set-offs for their negligence.
The Estate sued Mr. Nyberg, FPL, Myers, Rountree, Baker, Merchant, and others for their alleged negligence in causing the accident.
The Estate argued that Myers’ negligence was of a gross and flagrant nature as evidenced by its alleged failure to have a traffic plan in place at the time of the accident, its alleged willful blindness to the allegedly binding Department of Transportation rules concerning traffic regulation at roadside construction sites, and its alleged attempts to cover up its negligence after the accident.
The Estate presented one witness who testified that Myers did not have traffic cones or warning signs in place before the accident.
The Estate also presented expert testimony that Myers should have implemented a traffic plan that complied with Florida Department of Transportation Index 603, which dictated the placement of warning signs and traffic cones in specific locations, as well as the complete closure of the southbound lane of 15th Street East for approximately 300 feet before the start of the work site, because Myers was working within two feet of the edge of the road.
The Estate also introduced a diagram of the accident scene prepared by Myers’ safety supervisor Mr. Byrd which depicted warning signs and traffic cones in locations allegedly different from those shown in photographs taken of the accident scene itself.
In contradiction to the Estate’s evidence, Mr. Byrd testified that Myers did in fact have both traffic cones and warning signs in place before the accident. He also testified that he had intended to stop traffic in both directions on 15th Street East while the pole was being lifted from the flatbed and lowered into the hole.
Myers introduced photographs of the accident scene that clearly showed a traffic cone wedged under Mr. Young’s car, which tended to support Mr. Byrd’s testimony that traffic cones were in place before the accident.
While Mr. Byrd admitted that the traffic plan he implemented would not have satisfied the requirements of Index 603 if it applied, he specifically testified that the field conditions were such that they did not require the use of an Index 603 plan.
Thus, he testified that based on his experience and the field conditions present at the scene, his traffic plan was adequate. Myers also presented testimony from an expert traffic engineer that a traffic plan in compliance with Index 603 was not required under the circumstances present at the actual job site.
Further, Myers presented evidence that the diagram prepared by Mr. Byrd was generally accurate.
The appeals court held that the question of whether the work Myers was performing at the time of the accident constituted an inherently dangerous activity was a question for the jury rather than the court.
The inherently dangerous activities doctrine provides that
a party who “employs an independent contractor to do work involving a special danger to others which the employer knows . . . to be inherent in or normal to the work . . . is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” Restatement (Second) of Torts § 427 (1965). An activity is inherently dangerous if the “danger inheres in the performance of the work,” such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.”
Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 468 (Fla. 2005) (quoting Fla. Power & Light Co. v. Price, 170 So. 2d 293, 295 (Fla. 1964)) (emphasis added). Evidence is sufficient to support a finding of an inherently dangerous activity “if there is a recognizable and substantial danger inherent in the work.” Price, 170 So. 2d at 295 (emphasis added). As explained in section 416 of the Restatement (Second) of Torts:
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
(Emphasis added.) And the focus of the inquiry is on the work to be performed by the particular independent contractor for whose activities the plaintiff seeks to hold the defendant liable. See Nat’l R.R. Passenger Corp. v. Rountree Transp. & Rigging, Inc., 286 F.3d 1233, 1248 (11th Cir. 2002).
This court has noted that the question of whether a particular activity is inherently dangerous may, in some circumstances, be treated as an issue of duty and thus decided by the court as a matter of law. See Smyth ex rel. Estate of Smyth v. Infrastructure Corp. of Am., 113 So. 3d 904, 911 (Fla. 2d DCA 2013).
However, more commonly the question of whether a particular activity is inherently dangerous is one for the jury, to be determined based on all of the circumstances surrounding the activity in question. See id.; see also Doak v. Green, 677 So. 2d 301, 302 (Fla. 1st DCA 1996); Nat’l R.R. Passenger Corp., 286 F.3d at 1249; cf. Fla. Std. Jury Instr. (Civ.) 401.14(c) (providing the jury with instructions on how to determine whether an activity constitutes an inherently dangerous activity).
The appeals court said the undisputed evidence showed that at the time of the accident Rountree’s tractor-trailer was parked on the side of the road. The concrete pole was still on the trailer, and the pole itself did not extend into the roadway.
In the appeals court view, there is no peculiar risk inherent in a tractor-trailer parked on the shoulder of the road with its load intact. Cf. Am. Auto. Ass’n v. Tehrani, 508 So. 2d 365, 371 (Fla. 1st DCA 1987) (holding that the normal operation of a vehicle—even an unusually large vehicle—is not an inherently dangerous activity in and of itself). The appeals court said that the work in progress at the time of the accident was not inherently dangerous as a matter of law.
The Estate presented evidence of other circumstances surrounding the work occurring at the site when the accident occurred, including that the outermost left rear trailer tire was partially within the southbound travel lane, that the left rear corner of the trailer may have been interfering with traffic flow around the work site, and that Merchant’s crane may have been in operation and lifting the pole at the time of the accident.
In light of these additional facts, the appeals court held that the question of whether Myers was engaged in an inherently dangerous activity at the time of the accident could not be determined as a matter of law but instead should have been resolved by the jury.
The appeals court held that punitive damages were not warranted.
The court reversed the judgment due to other issues. The case was Le Myers Company v. Young, Fla: Dist. Court of Appeals, 2nd Dist. 2015.
In Florida, the personal representative brings the wrongful death case. A decedent is the person who died.
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Editor’s Note: This post was originally published in March 2012 and has been completely revamped and updated.