Types of Damages in Florida Personal Injury Legal Matters

Types of Damages in a Personal Injury Case in Florida

Law Offices of Michael D. Stewart

866-438-6574

When you are injured in an accident caused by the negligence or fault of another, you are entitled to a number of types of monetary recovery. After your lawyer has negotiated with the insurance company or filed a lawsuit and proved that the defendant breached a duty to you by injuring you, the types of damages recoverable and their amount needs to be determined.

When a settlement is reached with the insurance company or companies, the amount recoverable is often dependent on the insurance policy limits. In court the amount recoverable can be proved to a jury.

The types of damages generally recoverable are:

1) Compensatory Damages. This is monetary recovery for things such as money for medical bills, lost wages from the time you were unable to work due to the injury, damages to property, and future medical bills, such as from ongoing physical or emotional therapy. Compensatory damages include past and future effects of the injury on the victims physical and psychological health, disfigurement, past and future physical pain, mental distress, lost future earning capacity, loss of domestic or household services or consortium (see below). Compensatory damages include economic damages and non-economic damages (pain and suffering).

2) Pain and Suffering. This is the money you are entitled to for the physical pain you have and will endure, as well as mental suffering due to the injury.

3) Loss of Consortium. This is monetary recovery for the damage caused by being unable to have a loving relationship with your husband or wife, or your family due to the effects of the injury. This is also referred to as loss of companionship.

4) Punitive Damages. Punitive damages are available in those cases where the tortfeasor, or one who caused the injury, did so on purpose (intentional tort) or at least with reckless disregard of the consequences.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Florida Boating Accidents – Miami Personal Injury Lawyers

Florida Personal Injury in Boating Accidents

The Law Offices of Michael D. Stewart

www.TheMiamilaw.com

866-438-6574

Florida is the number one states in the country for fatal boating accidents. According to the Florida Fish and Wildlife Conservation Commission in 2011 reportable boating accidents by county are as follows:

2011 REPORTABLE BOATING ACCIDENTS 2011 VESSEL REGISTRATION AND ACCIDENTS BY COUNTY

County

Recreational Vessels

Total Vessels

Reportable Accidents

Fatalities

Injuries

Property Damage

Rank

Accident Rate*

Alachua

10,404

10,721

3

1

2

$0

39

1:3,574

Baker

2,242

2,251

0

0

0

$0

58

0

Bay

18,192

19,157

17

0

8

$944,947

13

1:1,127

Bradford

2,335

2,353

0

0

0

$0

59

0

Brevard

33,712

35,090

25

4

10

$255,680

8

1:1,404

Broward

41,227

42,687

41

6

13

$575,175

4

1:1,041

Calhoun

1,614

1,642

1

0

1

$500

49

1:1,642

Charlotte

19,983

20,602

8

0

7

$118,000

25

1:2,575

Citrus

15,697

16,362

5

1

7

$13,000

34

1:3,272

Clay

12,263

12,499

11

2

9

$14,500

20

1:1,136

Collier

20,765

21,691

34

2

24

$187,453

7

1:638

Columbia

4,404

4,449

0

0

0

$0

60

0

Desoto

2,230

2,301

0

0

0

$0

61

0

Dixie

2,455

2,727

6

0

5

$6,000

27

1:455

Duval

28,646

29,412

19

4

5

$85,250

11

1:1,548

Escambia

16,152

16,627

10

0

6

$45,000

21

1:1,663

Flagler

5,173

5,276

2

0

0

$42,500

43

1:2,638

Franklin

2,373

3,670

4

0

1

$22,500

35

1:918

Gadsden

2,460

2,505

2

2

0

$2,500

44

1:1,253

Gilchrist

1,716

1,748

3

0

3

$3,700

40

1:583

Glades

1,190

1,241

6

1

4

$15,000

28

1:207

Gulf

2,665

2,979

2

0

1

$2,180

45

1:1,490

Hamilton

925

934

0

0

0

$0

62

0

Hardee

1,596

1,621

0

0

0

$0

63

0

Hendry

2,772

2,908

1

0

0

$15,000

50

1:2,908

Hernando

9,158

9,368

6

1

1

$222,130

29

1:1,561

Highlands

8,516

8,645

1

0

1

$0

51

1:8,645

Hillsborough

41,563

42,423

20

7

14

$113,050

9

1:2,121

Holmes

2,124

2,139

0

0

0

$0

64

0

Indian River

10,352

10,803

15

1

5

$66,600

15

1:720

Jackson

4,715

4,745

1

0

1

$0

52

1:4,745

Jefferson

1,307

1,335

0

0

0

$0

65

0

Lafayette

975

983

1

0

1

$0

53

1:983

Lake

21,293

21,579

6

2

5

$19,500

30

1:3,597

Lee

42,273

43,618

38

1

18

$386,483

5

1:1,148

Leon

14,213

14,498

1

1

0

$0

54

1:14,498

Levy

4,037

4,387

4

0

1

$27,500

36

1:1,097

Due to the dangers of boating in Florida, effective October 1, 2011, boaters will need to obtain an identification card indicating that they have completed a safety course. The Florida Law on boating safety is as follows:

327.395 Boating safety identification cards.—

(1) A person born on or after January 1, 1988, may not operate a vessel powered by a motor of 10 horsepower or greater unless such person has in his or her possession aboard the vessel photographic identification and a boater safety identification card issued by the commission which shows that he or she has:

(a) Completed a commission-approved boater education course that meets the minimum 8-hour instruction requirement established by the National Association of State Boating Law Administrators;

(b) Passed a course equivalency examination approved by the commission; or

(c) Passed a temporary certificate examination developed or approved by the commission.

(2) Any person may obtain a boater safety identification card by complying with the requirements of this section.

(3) Any commission-approved boater education or boater safety course, course-equivalency examination developed or approved by the commission, or temporary certificate examination developed or approved by the commission must include a component regarding diving vessels, awareness of divers in the water, divers-down flags, and the requirements of s. 327.331.

(4) The commission may appoint liveries, marinas, or other persons as its agents to administer the course, course equivalency examination, or temporary certificate examination and issue identification cards under guidelines established by the commission. An agent must charge the $2 examination fee, which must be forwarded to the commission with proof of passage of the examination and may charge and keep a $1 service fee.

(5) An identification card issued to a person who has completed a boating education course or a course equivalency examination is valid for life. A card issued to a person who has passed a temporary certification examination is valid for 12 months from the date of issuance.

(6) A person is exempt from subsection (1) if he or she:

(a) Is licensed by the United States Coast Guard to serve as master of a vessel.

(b) Operates a vessel only on a private lake or pond.

(c) Is accompanied in the vessel by a person who is exempt from this section or who holds an identification card in compliance with this section, is 18 years of age or older, and is attendant to the operation of the vessel and responsible for the safe operation of the vessel and for any violation that occurs during the operation of the vessel.

(d) Is a nonresident who has in his or her possession proof that he or she has completed a boater education course or equivalency examination in another state which meets or exceeds the requirements of subsection (1).

(e) Is operating a vessel within 90 days after the purchase of that vessel and has available for inspection aboard that vessel a bill of sale meeting the requirements of s. 328.46(1).

(f) Is operating a vessel within 90 days after completing the requirements of paragraph (1)(a) or paragraph (1)(b) and has a photographic identification card and a boater education certificate available for inspection as proof of having completed a boater education course. The boater education certificate must provide, at a minimum, the student’s first and last name, the student’s date of birth, and the date that he or she passed the course examination.

(g) Is exempted by rule of the commission.

(7) A person who operates a vessel in violation of subsection (1) commits a noncriminal infraction, punishable as provided in s. 327.73.

(8) The commission shall design forms and adopt rules to administer this section. Such rules shall include provision for educational and other public and private entities to offer the course and administer examinations.

(9) The commission shall institute and coordinate a statewide program of boating safety instruction and certification to ensure that boating courses and examinations are available in each county of the state.

(10) The commission is authorized to establish and to collect a $2 examination fee to cover administrative costs.

(11) The commission is authorized to adopt rules pursuant to chapter 120 to implement the provisions of this section.

(12) This section may be cited as the “Osmany ‘Ozzie’ Castellanos Boating Safety Education Act.”

History.—s. 1, ch. 96-187; s. 24, ch. 99-245; s. 13, ch. 2000-362; s. 35, ch. 2005-2; s. 9, ch. 2009-86; s. 2, ch. 2011-152.

Safety in boating is of the utmost importance and a boat is considered a dangerous vehicle according to Florida law. Increasing the chances of accidents are those vessel operators who are intoxicated at the time of an incident. Florida law provides very serious penalties for operating a boat while intoxicated:

327.35 Boating under the influence; penalties; “designated drivers”.—

(1) A person is guilty of the offense of boating under the influence and is subject to punishment as provided in subsection (2) if the person is operating a vessel within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

(2)(a) Except as provided in paragraph (b), subsection (3), or subsection (4), any person who is convicted of a violation of subsection (1) shall be punished:

1. By a fine of:

a. Not less than $500 or more than $1,000 for a first conviction.

b. Not less than $1,000 or more than $2,000 for a second conviction; and

2. By imprisonment for:

a. Not more than 6 months for a first conviction.

b. Not more than 9 months for a second conviction.

(b)1. Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

2. Any person who is convicted of a third violation of this section for an offense that occurs more than 10 years after the date of a prior conviction for a violation of this section shall be punished by a fine of not less than $2,000 or more than $5,000 and by imprisonment for not more than 12 months.

3. Any person who is convicted of a fourth or subsequent violation of this section, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

However, the fine imposed for such fourth or subsequent violation may not be less than $2,000.

(3) Any person:

(a) Who is in violation of subsection (1);

(b) Who operates a vessel; and

(c) Who, by reason of such operation, causes or contributes to causing:

1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

2. Serious bodily injury to another, as defined in s. 327.353, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. The death of any human being commits BUI manslaughter, and commits:

a. A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

b. A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:

(I) At the time of the accident, the person knew, or should have known, that the accident occurred; and

(II) The person failed to give information and render aid as required by s. 327.30.

This sub-subparagraph does not require that the person knew that the accident resulted in injury or death.

(4) Any person who is convicted of a violation of subsection (1) and who has a blood-alcohol level or breath-alcohol level of 0.15 or higher, or any person who is convicted of a violation of subsection (1) and who at the time of the offense was accompanied in the vessel by a person under the age of 18 years, shall be punished:

(a) By a fine of:

1. Not less than $1,000 or more than $2,000 for a first conviction.

2. Not less than $2,000 or more than $4,000 for a second conviction.

3. Not less than $4,000 for a third or subsequent conviction.

(b) By imprisonment for:

1. Not more than 9 months for a first conviction.

2. Not more than 12 months for a second conviction.

For the purposes of this subsection, only the instant offense is required to be a violation of subsection (1) by a person who has a blood-alcohol level or breath-alcohol level of 0.15 or higher.

(5) In addition to any sentence or fine, the court shall place any offender convicted of violating this section on monthly reporting probation and shall require attendance at a substance abuse course specified by the court; and the agency conducting the course may refer the offender to an authorized service provider for substance abuse evaluation and treatment, in addition to any sentence or fine imposed under this section. The offender shall assume reasonable costs for such education, evaluation, and treatment, with completion of all such education, evaluation, and treatment being a condition of reporting probation. Treatment resulting from a psychosocial evaluation may not be waived without a supporting psychosocial evaluation conducted by an agency appointed by the court and with access to the original evaluation. The offender shall bear the cost of this procedure. The term “substance abuse” means the abuse of alcohol or any substance named or described in Schedules I-V of s.893.03.

(6) With respect to any person convicted of a violation of subsection (1), regardless of any other penalty imposed:

(a) For the first conviction, the court shall place the defendant on probation for a period not to exceed 1 year and, as a condition of such probation, shall order the defendant to participate in public service or a community work project for a minimum of 50 hours. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant’s name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). The total period of probation and incarceration may not exceed 1 year.

(b) For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant’s name at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). At least 48 hours of confinement must be consecutive.

(c) For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant’s name at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). At least 48 hours of confinement must be consecutive.

(d) The court must at the time of sentencing the defendant issue an order for the impoundment or immobilization of a vessel. Within 7 business days after the date that the court issues the order of impoundment, and once again 30 business days before the actual impoundment or immobilization of the vessel, the clerk of the court must send notice by certified mail, return receipt requested, to the registered owner of each vessel, if the registered owner is a person other than the defendant, and to each person of record claiming a lien against the vessel.

(e) A person who owns but was not operating the vessel when the offense occurred may submit to the court a police report indicating that the vessel was stolen at the time of the offense or documentation of having purchased the vessel after the offense was committed from an entity other than the defendant or the defendant’s agent. If the court finds that the vessel was stolen or that the sale was not made to circumvent the order and allow the defendant continued access to the vessel, the order must be dismissed and the owner of the vessel will incur no costs. If the court denies the request to dismiss the order of impoundment or immobilization, the petitioner may request an evidentiary hearing.

(f) A person who owns but was not operating the vessel when the offense occurred, and whose vessel was stolen or who purchased the vessel after the offense was committed directly from the defendant or the defendant’s agent, may request an evidentiary hearing to determine whether the impoundment or immobilization should occur. If the court finds that either the vessel was stolen or the purchase was made without knowledge of the offense, that the purchaser had no relationship to the defendant other than through the transaction, and that such purchase would not circumvent the order and allow the defendant continued access to the vessel, the order must be dismissed and the owner of the vessel will incur no costs.

(g) All costs and fees for the impoundment or immobilization, including the cost of notification, must be paid by the owner of the vessel or, if the vessel is leased or rented, by the person leasing or renting the vessel, unless the impoundment or immobilization order is dismissed.

(h) The person who owns a vessel that is impounded or immobilized under this paragraph, or a person who has a lien of record against such a vessel and who has not requested a review of the impoundment pursuant to paragraph (e) or paragraph (f), may, within 10 days after the date that person has knowledge of the location of the vessel, file a complaint in the county in which the owner resides to determine whether the vessel was wrongfully taken or withheld from the owner or lienholder. Upon the filing of a complaint, the owner or lienholder may have the vessel released by posting with the court a bond or other adequate security equal to the amount of the costs and fees for impoundment or immobilization, including towing or storage, to ensure the payment of the costs and fees if the owner or lienholder does not prevail. When the bond is posted and the fee is paid as set forth in s. 28.24, the clerk of the court shall issue a certificate releasing the vessel. At the time of release, after reasonable inspection, the owner or lienholder must give a receipt to the towing or storage company indicating any loss or damage to the vessel or to the contents of the vessel.

(i) A defendant, in the court’s discretion, may be required to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a program must be credited by the court toward the term of imprisonment.

For the purposes of this section, any conviction for a violation of s. 316.193, a previous conviction for the violation of former s. 316.1931, former s. 860.01, or former s. 316.028, or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section.

(7) A conviction under this section does not bar any civil suit for damages against the person so convicted.

(8) A person who is arrested for a violation of this section may not be released from custody:

(a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal faculties are impaired;

(b) Until the person’s blood-alcohol level or breath-alcohol level is less than 0.05; or

(c) Until 8 hours have elapsed from the time the person was arrested.

(9) Notwithstanding any other provision of this section, for any person convicted of a violation of subsection (1), in addition to the fines set forth in subsections (2) and (4), an additional fine of $60 shall be assessed and collected in the same manner as the fines set forth in subsections (2) and (4). All fines collected under this subsection shall be remitted by the clerk of the court to the Department of Revenue for deposit into the Brain and Spinal Cord Injury Program Trust Fund and used for the purposes set forth in s. 381.79, after 5 percent is deducted therefrom by the clerk of the court for administrative costs.

(10) It is the intent of the Legislature to encourage boaters to have a “designated driver” who does not consume alcoholic beverages.

History.—s. 2, ch. 59-400; s. 5, ch. 63-105; s. 1, ch. 65-361; s. 1, ch. 71-81; s. 22, ch. 73-331; s. 5, ch. 83-187; s. 7, ch. 84-188; s. 7, ch. 91-255; s. 8, ch. 93-124; s. 456, ch. 95-148; s. 19, ch. 96-330; s. 98, ch. 97-264; s. 49, ch. 97-271; s. 10, ch. 98-308; s. 14, ch. 98-324; s. 47, ch. 2000-152; s. 11, ch. 2000-320; s. 28, ch. 2001-122; s. 4, ch. 2002-78; s. 6, ch. 2002-263; s. 35, ch. 2008-111; s. 7, ch. 2009-86; s. 6, ch. 2010-161.

Note.—Former s. 371.51.

Further, failure to submit to a breath test:

327.35215 Penalty for failure to submit to test.—

(1) A person who is lawfully arrested for an alleged violation of s. 327.35 and who refuses to submit to a blood test, breath test, or urine test pursuant to s. 327.352 is subject to a civil penalty of $500.

(2) When a person refuses to submit to a blood test, breath test, or urine test pursuant to s. 327.352, a law enforcement officer who is authorized to make arrests for violations of this chapter shall file with the clerk of the court, on a form provided by the department, a certified statement that probable cause existed to arrest the person for a violation of s. 327.35 and that the person refused to submit to a test as required by s. 327.352. Along with the statement, the officer must also submit a sworn statement on a form provided by the department that the person has been advised of both the penalties for failure to submit to the blood, breath, or urine test and the procedure for requesting a hearing.

(3) A person who has been advised of the penalties pursuant to subsection (2) may, within 30 days afterwards, request a hearing before a county court judge. A request for a hearing tolls the period for payment of the civil penalty, and, if assessment of the civil penalty is sustained by the hearing and any subsequent judicial review, the civil penalty must be paid within 30 days after final disposition. The clerk of the court shall notify the department of the final disposition of all actions filed under this section.

(4) It is unlawful for any person who has not paid a civil penalty imposed pursuant to this section, or who has not requested a hearing with respect to the civil penalty, within 30 calendar days after receipt of notice of the civil penalty to operate a vessel upon the waters of this state. Violation of this subsection is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(5) Moneys collected by the clerk of the court pursuant to this section shall be disposed of in the following manner:

(a) If the arresting officer was employed or appointed by a state law enforcement agency, the moneys shall be deposited into the Marine Resources Conservation Trust Fund and used to directly enhance the ability of law enforcement officers to perform law enforcement functions on state waters.

(b) If the arresting officer was employed or appointed by a county or municipal law enforcement agency, the moneys shall be deposited into the law enforcement trust fund of that agency.

History.—s. 6, ch. 98-308; s. 23, ch. 99-245; s. 3, ch. 2004-74.

If you have been injured while boating in Florida, you should first call for help. Under Florida law there is a duty to help once there has been a boating accident. The Florida Statute covering a boater’s duty to provide assistance is listed below:

327.30 Collisions, accidents, and casualties.—

(1) It is the duty of the operator of a vessel involved in a collision, accident, or other casualty, so far as he or she can do so without serious danger to the operator’s own vessel, crew, and passengers, if any, to render to other persons affected by the collision, accident, or other casualty such assistance as is practicable and necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty, and also to give his or her name, address, and identification of his or her vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty. The operator of a vessel involved in an accident with an unattended vessel shall take all reasonable steps to locate and notify the owner or person in charge of such vessel of the accident, furnishing to such owner his or her name, address, and registration number and reporting as required under this section.

(2) In the case of collision, accident, or other casualty involving a vessel in or upon or entering into or exiting from the water, including capsizing, collision with another vessel or object, sinking, personal injury requiring medical treatment beyond immediate first aid, death, disappearance of any person from on board under circumstances which indicate the possibility of death or injury, or damage to any vessel or other property in an apparent aggregate amount of at least $2,000, the operator shall without delay, by the quickest means available give notice of the accident to one of the following agencies: the Division of Law Enforcement of the Fish and Wildlife Conservation Commission; the sheriff of the county within which the accident occurred; or the police chief of the municipality within which the accident occurred, if applicable.

(3) The statutory duty of a person to make a report or give information to a law enforcement officer making a written report relating to an accident does not extend to information that would violate the privilege of such person against self-incrimination.

(4) Each coroner or other official performing like functions, upon learning of the death of a person in his or her jurisdiction as a result of a boating accident, shall immediately notify the nearest office of the Department of Law Enforcement.

(5) It is unlawful for a person operating a vessel involved in an accident or injury to leave the scene of the accident or injury without giving all possible aid to all persons involved and making a reasonable effort to locate the owner or persons affected and subsequently complying with and notifying the appropriate law enforcement official as required under this section. Any person who violates this subsection with respect to an accident resulting in personal injury commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who violates this subsection with respect to an accident resulting in property damage only commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(6) Any law enforcement officer who investigates a boating collision or accident may arrest or cite the operator of any vessel involved in the accident or collision when, based upon personal investigation, the officer has probable cause to believe that the operator has committed any offense in connection with the accident or collision.

History.—s. 1, ch. 59-399; s. 4, ch. 61-511; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 34, ch. 79-65; s. 5, ch. 81-100; s. 24, ch. 87-243; s. 1, ch. 87-392; s. 3, ch. 89-117; s. 44, ch. 91-224; s. 455, ch. 95-148; s. 16, ch. 96-330; s. 41, ch. 97-96; s. 22, ch. 99-245; s. 2, ch. 2003-143.

Note.—Former s. 371.141.

Further, written reports of the boating accident must be reported as follows:

327.301 Written reports of accidents.—

(1) The operator of a vessel that is in any manner involved in an accident resulting in bodily injury, death, or disappearance of any person or damage to any vessel or other property in an apparent aggregate amount of at least $2,000 shall, within the time limits specified in 33 C.F.R. s. 173.55, forward a written report of the accident to the division. Whenever the operator of the vessel is incapable of making a written report, the owner of the vessel shall, within the time limits specified in 33 C.F.R. s. 173.55, make the report not made by the operator. However, when the investigating officer has made a written report of the accident pursuant to subsection (3), a written report need not be forwarded to the division by the operator.

(2) The division may require any operator of a vessel involved in an accident of which written report must be made as provided in this section to file supplemental written reports whenever the original report is insufficient in the opinion of the division, and may require any witness to the accident to render a report to the division.

(3) Every law enforcement officer who in the regular course of duty investigates a boating accident that resulted in bodily injury, death, or disappearance of any person or damage to any vessel or other property in an apparent aggregate amount of at least $2,000 shall, within 24 hours after completing the investigation, forward a written report of the accident to the division. However, in every case in which an accident report is required by this section and a written report by a law enforcement officer is not prepared, the law enforcement officer shall provide each party involved in the accident a short-form report, prescribed by the division, to be completed by the party. The short-form report must include, but is not limited to: the date, time, and location of the accident; a description of the vessels involved; the names and addresses of the parties involved; the names and addresses of witnesses; and the name, badge number, and law enforcement agency of the officer investigating the accident. Accident reports made by law enforcement officers may not be used for commercial solicitation purposes; however, use of an accident report for purposes of publication in a newspaper or other news periodical or a radio or television broadcast shall not be construed as a “commercial purpose.”

(4) Except as specified in this subsection, each accident report made by a person involved in an accident and any statement made by such person to a law enforcement officer for the purpose of completing an accident report required by this section is without prejudice to the individual reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer who is a witness in a criminal trial may testify as to any statement made to the officer by the person involved in the accident if that person’s privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 327.352 or s. 327.353 are not confidential and shall be admissible into evidence in accordance with the provisions of s. 327.354. Accident reports made by persons involved in accidents may not be used for commercial solicitation purposes; however, use of an accident report for purposes of publication in a newspaper or other news periodical or a radio or television broadcast shall not be construed as a “commercial purpose.”

(5) For the purposes of this section, a written report includes a report generated through the use of information technology resources as defined in s. 282.0041.

(6) If the vessel is leased, rented, or chartered at the time of the accident, the person who offered the vessel for lease, rental, or charter shall be responsible for complying with this section and s.327.30.

(7) Any person failing to file the written report required under subsection (1) or a supplemental written report when required by the division under subsection (2) is guilty of a noncriminal infraction.

History.—s. 17, ch. 96-330; s. 48, ch. 2002-1; s. 2, ch. 2004-74.

Liability for negligence or recklessness in a boating accident shall lie with the operator of the vessel who was negligent or reckless, though not with the boat’s owner if the owner was not the driver and was not otherwise negligent or reckless.

327.32 Vessel declared dangerous instrumentality; civil liability.—All vessels, of whatever classification, shall be considered dangerous instrumentalities in this state, and any operator of a vessel shall, during any utilization of the vessel, exercise the highest degree of care in order to prevent injuries to others. Liability for reckless or careless operation of a vessel shall be confined to the operator in immediate charge of the vessel and not imposed upon the owner of the vessel, unless the owner is the operator or is present in the vessel when any injury or damage is occasioned by the reckless or careless operation of such vessel, whether such recklessness or carelessness consists of a violation of the provisions of the statutes of this state, or disregard in observing such care and such operation as the rules of the common law require.

History.—s. 3, ch. 59-400; s. 1, ch. 65-361; s. 5, ch. 84-188; s. 11, ch. 85-81.

Note.—Former s. 371.52.

Once help has been secured you should contact an attorney to preserve your rights under the Florida boating personal injury laws. If you were the one who caused a boat or jet ski crash you will need an attorney to defend you from personal liability, both civilly and criminally. If you were injured in a boating or jet ski accident, your attorney can assist you in recovering monies for your injuries, lost wages, medical bills, disfiguration and the like.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Florida Auto Accidents

NEVER LEAVE THE SCENE. If you leave the scene of an accident, especially where another person was injured or killed, you could face criminal charges.
If you are in a safe area, move your care out of the flow of traffic, over to the shoulder if possible. Watch for oncoming traffic when exiting your vehicle.
If you are injured call for help. Check to make sure others involved in the accident are ok. Call 911 immediately if there are any injuries.
Call the police if the accident involves significant damage, injury, or death. The police will create a report with all persons involved and at the scene.
Get names, addresses, phone numbers, insurance information, license plate numbers etc. of other persons involved. (Do not apologize or admit guilt or fault when speaking with other drivers. Be cordial, but stick to obtaining basic information.)
Equally do not accuse the other person of fault. Make a mental or written note about what was said, but do not start and argument as to fault.
Take photos of the damages, injuries, and scene if possible.
Draft a sketch of the scene as you remember it, explaining how the accident occurred.
Talk to witnesses at the scene and try to find out what they saw. Get their names, addresses, and telephone numbers if possible. If they are residents of the area or work in the area, ask them if they have ever witnessed other accidents in the same place.
Inform your insurance company as soon as possible and be honest about the details of the accident and your injuries. Lying will not get you any additional recovery and can only hurt your claim later on.
Keep track of your doctors, treatment(s), medical bills, and medical records.
Do not talk to anyone about the accident other than your attorney, your insurance company, and the police. Do not talk to a representative of another insurance company under any circumstances. Your attorney will help guide you through in-person interviews etc.
Be careful if you are offered a settlement from an insurance company. Your attorney should take care of this step, but if you are offered a settlement immediately contact your attorney.
Finally, CALL AN EXPERIENCED ATTORNEY who specializes in accident and injury claims for advice and answers to your questions.

If you are in an auto-related accident call us today for a free consultation! 305-590-8909

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Florida Trucking Accidents, Personal Injury, Wrongful Death

Trucking accidents are very serious and usually result in serious injury or death. Trucking accidents can occur for many reasons, from driver fatigue or inexperience, to excessive loads creating imbalance which can lead to rollovers. Oftentimes, large trucks such as 18 wheelers are owned by large companies who will aggressively defend themselves in the case of an accident. Obtaining an attorney early in the process is necessary to prevent the injured victim from making any improper statements to investigators, who work for the trucking company, which can damage their case for personal injury or wrongful death of a family member.

There are both state and federal laws concerning trucks. Federal law in particular provides guidelines on how long a driver can drive without taking a break for rest. Truck drivers are also required to maintain logs, which later can be used by your attorney to prove any deviations from the laws by the truck driver.

Litigating a personal injury or wrongful trucking accident death requires a showing of negligence on behalf of the truck driver and the truck driving company. Negligence of the victim will also be taken into account, but does not bar an award of personal injury damages. Your lawyer will likely sue the driver for negligence or recklessness, and the trucking company, under a theory of respondeat superior, or that the company is liable for the driver’s actions. Other causes of action could include negligent hiring, negligent supervision and lack of training.

Your lawyer will conduct an investigation of the accident scene, the conditions of the road at the time of the accident, the condition of the truck in question, include maintenance records, will interview any witnesses to the accident, as well as reviewing police reports and possibly conducting depositions of the police. Depositions will also be conducted on the driver concerning his or her condition at the time of the accident, his or her training and years of experience, and any similar accidents or disciplinary actions taken against the driver.

Your lawyer will also investigate the trucking company to determine whether the company has failed to properly train its drivers, whether it has rules in place for hiring, supervision and discipline, the conditions of its trucks, and any previous accidents involving its drivers.

The basic tort claim for personal injury or wrongful death consists of certain factors. The first is “Duty” or whether or not the trucking company had a duty to the victim and to the public in general to prevent accidents of this type. The second factor is whether the truck driver and/or trucking company “Breached” its/their duty through his or her/their negligence. The third factor is whether the driver and the company’s conduct was the “Cause” of the injury to the victim. The forth factor is “Damages” or how much the injured driver is entitled to recover in monetary damages for injuries, medical bills, lost wages, loss of consortium or affections with family members), and the like.

Further, other companies can be sued by your lawyer for their negligence, such as the truck manufacturer and the parts makers, and the tire company if the tires were defective. Further, if the truck was negligently worked on by a mechanic, this could lead to a suit against the mechanic and his or her company.

The results of the case depend on the very specific factors involved in each case.

For further information call The Law Offices of Michael D. Stewart at 866-438-6574 or see us on the web at www.TheMiamiLaw.com.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Florida Amusement Park Injuries

lorida theme park injuries occur just as they do anywhere else in the world. When a theme park, such as Walt Disney world, through their negligence or recklessness, cause injury, the theme park can be held financially liable for the resultant injuries. Florida theme parks include Disney World, Busch Gardens, Discovery Cove, Legoland, Sea World, The Holyland Experience, Universal Orlando, as well as accidents occurring close to Florida such as Atlantis.

When injured at a theme park it is necessary to retain an attorney early to conduct an investigation and to preserve the scene so that no evidence is lost. Your lawyer can contact witnesses, obtain video tapes, maintenance and other records concerning theme park rides, and can request all relevant discoverable evidence from the theme park.

Florida theme parks are required to report the injuries of their patrons to Florida’s Bureau of Fair Rides Inspection. The theme parks need to report the injuries when they result in death or an overnight stay at the hospital.

According to the International Association of Amusement Parks and Attractions (IAAPA), 300 million people visit amusement parks each year. According to this organization, the chance of an injury occurring in a park is 1 in 9 million.

Theme parks can be held liable whether it is their negligence which causes injury. To prove a case against a theme park it needs to be shown that the theme park breached its duty to the injured patron by creating or failing to prevent a dangerous condition which caused injury. Compensable injuries occurring at theme parks include slips and falls, injuries on rides and attractions, or even food causing injury.

Other less common injuries which could be compensable would include a situation where the theme park had a roller coaster and failed to have warning signs concerning the velocity and movement of the roller coaster. Thereafter one with a heart condition suffers a heart attack which could have been preventable had there been proper warning signs.

Further, intentional torts occurring at amusement parks could also be compensable. An intentional tort is where the tortfeasor, or aggressor, intends to cause injury to another. This would occur if there was a lack of proper security at the theme park and a patron is injured in a fight with another park-goer.

Also, theme park employees are not exempt from their intentional acts. If a theme park employee were to attack another patron causing injury, the employee could be sued, but the theme park could also be sued under a theory of respondeat superior – where the theme park is liable for the actions of its employee through its negligent hiring, training and supervision of the employee. Negligent hiring would be a situation where the amusement park failed to do a sufficient background check on the employee and failed to learn that the employee had a criminal or other violent history. Further, failure to adequately train employees could result in liability to the theme park. Finally, failure to have sufficient rules and regulations for employees, and failure to monitor and supervise the employees’ actions could also result in liability.

Additionally, there are often moving vehicles, such as golf carts, in theme parks riding in between the patrons. Were a patron to be hit and injured by one of these vehicles, the driver and the theme park could be held liable for the resultant injuries.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Florida Motorcycle Injuries – Personal Injury and Wrongful Death Law

If you have been injured in a motorcycle accident in Florida, call The Law Offices of Michael D. Stewart at 866-438-6574

Our firm will move immediately to protect your rights.

Motorcycle accidents are unlike automobile accidents or truck accidents in that the motorcycle rider is more likely to die or be seriously injured in an accident.

According to the “Hurt Report”:

1) Approximately 75% of accidents involve another vehicle

2) Nearly 50% of fatal motorcycle accidents involve alcohol

3) 66% of accidents are caused by failure to yield right of way

4) Surprisingly, weather is not a factor in 98% of accidents

5) Rider error causes 66% of single-vehicle accidents

6) Failure to see motorcycle is the primary cause of accidents

According to the website http://www.ridesmartflorida.com:

Motorcycle Statistics

Florida’s growing population and popularity with motorcycle enthusiasts makes motorcycle safety an important issue. The number of motorcycle crashes, fatalities, and injuries in the United States has increased in recent years, and Florida has shown the same trend.

Motorcycle Crash Trends in Florida (PowerPoint)

Presented on December 2, 2010 by:
Chanyoung Lee, Ph.D., PTP
Center for Urban Transportation Research (CUTR)
University of South Florida

Motorcycle Crashes, Fatalities, and Injuries in Florida
The number of motorcycle crashes and injuries nearly doubled between 2000 and 2008.

Florida Motorcycle Crashes and Injuries, 2000 to 2010

Table showing Florida motorcycle crashes and injuries from 2000 to 2010.

From 2008 to 2010, the data reflects a 22.2% reduction in crashes and a 21.5% reduction in injuries. The implementation of Florida’s Motorcycle Safety Coalition and the new rider training requirements that were put into place in July 2008 significantly contributed to this decrease.

Florida Motorcycle Fatalities, 2000 to 2010

Table showing Florida motorcycle fatalities from 2000 to 2010.

In 2000, motorcycle fatalities accounted for about eight percent of all traffic fatalities in the State, but by 2008 the percentage had increased to 17.8 percent. In 2010, motorcycle fatalities dropped, and accounted for 14.3% of all traffic fatalities.

Motorcycle Crash Factors

Below are a number of factors that uniquely contribute to motorcycle crashes in Florida.

Motorcyclists Injured in Crashes by Age and Gender*

Age

Male

Female

Unknown

Total

< 21 535 58 1 594 21-24 672 51 0 723 25-34 1,235 84 0 1,319 35-44 1,056 118 0 1,174 45-54 1,267 176 0 1,443 55-64 881 70 0 1,443 65-74 307 11 0 318 75-84 51 11 0 52 85-89 3 0 0 3 90+ 1 0 0 1 Unknown 89 4 15 108 Total 6,097 573 16 6,686 *These numbers correspond to 2010 motorcycle crash injuries by age and gender. Age More motorcyclists aged 45-54 were injured in motorcycle traffic crashes in Florida than any other age group in 2010. In 2010, more riders age 45-54 were fatally injured in motorcycle traffic crashes in Florida than any other age group, followed by riders age 25-34. The median age of fatally injured riders was 42 years old in 2010. Motorcyclist Traffic Fatalities in Florida by Age and Year 2007 to 2010 Note: This does not include motorcycle passenger fatality details. Table showing Florida Motorcycle Traffic Fatalities in Florida by Age and Year, 2007 to 2010. Residence Florida is a popular tourist destination and host to a number of motorcycle enthusiast events. 94 percent of motorcyclists fatally injured in Florida were also Florida residents (2010). Location Miami-Dade, Pinellas, Volusia, Hillsborough, Palm Beach, Broward, Duval, Orange, Pasco, and Brevard counties accounted for the largest number of motorcycle fatalities respectively in 2010. Factors such as population and proximity to motorcycle rallies play a role in determining the number of motorcycle crashes and fatalities. Registrations and Endorsements In 2008, registered motorcycles accounted for just over 4% of Florida's motoring public. In 2009, there were 590,735 registered motorcycles – I need to know the total number of registered vehicles to replicate the bullet above. In 2011, licensed motorcyclists accounted for only about 7% of Florida’s motoring public. Yet in 2010, motorcyclists and their passengers represented 14.3% of all fatalities on Florida’s roadways. Helmet Use In 2011, helmet use in Florida was observed at 49.3 percent. Since the repeal of the helmet law in 2000, the number of fatal crashes for every 10,000 registered motorcycles increased by 21 percent, suggesting motorcyclists without helmets are more likely to suffer serious and fatal injuries. 37 percent of motorcyclists were not wearing a safety helmet before a fatal crash during 2010. 29 percent of motorcyclist fatalities were related to traumatic brain injuries between 2007 and 2010. Alcohol Involvement 27 percent of fatal motorcycle crashes in 2005 involved alcohol. 20 percent of fatal motorcycle crashes in 2006 involved alcohol. 41 percent of fatal motorcycle crashes in 2008 involved alcohol. 37 percent of fatal motorcycle crashes in 2009 involved alcohol. According to the National Highway Traffic Safety Administration's (NHTSA) National Center for Statistics and Analysis: In Florida in 2009, impaired motorcyclists with a BAC of .08+ accounted for 31% of motorcycle fatalities, while impaired motorcyclists with a BAC of .01+ accounted for 37% of motorcycle fatalities. Nationally, in fatal crashes in 2008 a higher percentage of motorcycle riders had blood alcohol concentration (BAC) of .08 grams per deciliter (g/dL) or higher than any other type of motor vehicle driver. The percentages for vehicle riders involved in fatal crashes were 28 percent for motorcycles, 23 percent for passenger cars, 23 percent for light trucks, and 2 percent for large trucks. In 2010, the percentage with BAC .08 g/dL or above was highest for fatally injured motorcycle riders among the 21-24 (34%) age group followed by 25-34 (30%) age group. Studies by the National Highway Traffic Safety Administration, the states of Florida and Kentucky, and in Australia ("Quick tips: The Importance of Riding Unimpaired by Alcohol or Other Drugs." PDF) Motorcycle Safety Foundation, 2006.) indicate the following: Having any alcohol in one’s body increases the chance of crashing by five times. Having a BAC greater than 0.05 percent increases the risk of crashing about 40-fold. One-fourth of all fatal alcohol-related motorcycle crashes involve motorcyclists running off the road, overturning, or falling from the motorcycle rather than striking another object. Effects of Alcohol on Motorcycle Riding Skills (PDF) Methodology for Determining Motorcycle Operator Crash Risk and Alcohol Impairment Impaired Motorcycle Operation - Riders Helping Riders Time of Year and Day of Week 31 percent of fatal motorcycle crashes occurred during the months of March, April, and May. Approximately 50 percent of fatal crashes occur on weekends. Vehicle Maneuver Roadway Characteristic 2005 2006 2007 2008 2009 Straight - Level 338 370 388 361 198 Straight - Upgrade/Downgrade 41 41 37 38 13 Curve - Level 67 82 89 106 61 Curve - Upgrade/Downgrade 32 48 37 43 22 Grand Total 478 541 551 548 294 % Roadway Curves 14% 15% 16% 19% 21% Approximately 10 percent of fatal crashes from 2005 to 2007 involved roadway curves. Passing or overtaking a vehicle and changing lanes or merging each accounted for three percent of fatalities. Body Region and Nature of Injury Information from death certificates issued in 2010 show that 29 percent of motorcycle traffic fatalities were associated with a traumatic brain injury, 35 percent with injuries to multiple body regions, 30 percent with injuries to unspecified body regions, and 9 percent with injuries to the thorax. Unfortunately, death certificates provide limited information about the nature of injuries; therefore, nearly 100 percent of certificates cited at least one unspecified injury as an immediate or contributing cause of death. For nonfatal injuries among motorcycle riders that required hospitalization from 2007 to 2009, injuries to the lower extremities were responsible for the highest percentage of hospitalizations at 35 percent, followed by traumatic brain injuries and torso injuries each at 20 percent. The two most common types of principal injuries sustained in nonfatal motorcycle crashes requiring hospitalization were fractures (67 percent) and injuries to internal organs (23 percent). Upper extremity and lower extremity injuries account for over half of the injuries for motorcycle riders treated in emergency departments from 2007 and 2009. Superficial wounds and fractures together account for over half of injuries to motorcycle riders treated in emergency departments from 2007 and 2009. Injury and Hospitalization Data Motorcycle Traffic Crash Injuries in Florida, 2007-2010 Table showing Motorcycle Traffic Crash Injuries in Florida by Year. Motorcycle traffic crashes often result in fatal or serious injuries requiring inpatient or outpatient hospital care and treatment. Fatal injuries, though the most severe, account for only a small portion of the overall injury burden among motorcyclists. In fact, nearly seven times more nonfatal injury hospitalizations and over 20 times more emergency department visits occurred for nonfatal injuries during the three year period from 2007 to 2009. In 2010, the median hospital charge for motorcyclists admitted to a Florida hospital for the treatment of traffic crash injuries was $55,748. In 2010, the median hospital charge for motorcyclists treated and released from a Florida emergency department for the treatment of traffic crash injuries was $3,101. The total hospital charges for the initial treatment of motorcyclists injured in traffic crashes in 2010 was $348,138,344. In 2010, 51 percent of motorcyclist hospitalizations and emergency department visits were not covered by commercial insurance. Table showing 2009 Hospitalizations in Florida for Nonfatal Injuries Sustained in Motorcycle Traffic Crashes by Payer Source. Table showing 2009 Emergency Department Visits in Florida for Nonfatal Injuries Sustained in Motorcycle Traffic Crashes by Payer Source. Further, the personal injury laws concerning motorcycles can differ from automobiles, particularly with respect to insurance coverage, which can be complex. The general factors needed to prove negligence in a motorcycle accident are 1) a duty of the other driver to protect the rider from harm, 2) a breach of that duty by the other driver, and 3) the breach of the duty was the cause of the resultant injuries. If you are injured in a motorcycle accident, you should immediately call the police and an ambulance if you are injured and it is possible. Our lawyers at Law Offices of Michael D. Stewart will then immediately secure the scene of your motorcycle injury. Our investigators will obtain statements and reports concerning the accident, and obtain the statements of witnesses. We will view the scene to determine how that may have affected the accident. Weather conditions and the conditions of the driver and the rider will be taken into account. Our Florida office will manage your hospital visits and bills, together with negotiations with the insurance companies. We will work with your doctors to determine the extent of injuries and the proper courses of treatment. If you are contacted by any insurance adjuster, or anyone else for that matter, concerning the accident, all questions should be referred to our law firm. Giving statements to third parties can hinder your ability to recover for personal injuries, lost wages, medical bills, property damage and the like. In a case of motorcycle injury that leads to death, the family can bring a wrongful death claim to obtain compensation. Call the Law Offices of Michael D. Stewart at 866-438-6574 for further information Or see us at www.gotpersonalinjury.com Or www.TheMiamiLaw.com

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Ten Things to Do When Going to Court with Your Lawyer in Florida

10 Things To Do When You Go To Court With Your Lawyer
Law Offices of Michael D. Stewart
866-438-6574
www.TheMiamiLaw.com

Whether a civil case or a criminal matter, there will likely come a time when you need to go to court with your lawyer. Listed below are the considerations and recommendations when you get your day in court:
1) Properly prepare with your lawyer. If your lawyer is unaware of certain facts, they can come as a surprise to the lawyer at a hearing or at trial, thereby potentially hurting your case.
2) Do not talk in court without the consent of your lawyer. Whether in a civil matter or criminal matter, in court your attorney will speak for you. Only speak, if at all, with the permission of your attorney.
3) Dress appropriately. In a criminal trial might be important to wear a suit, whereas in a civil infraction matter a dress shirt and slacks might be sufficient. Speak with your lawyer about this prior to going to court.
4) Take notes of matters you would like to consult with your lawyer about later. You can also, in appropriate situations, pass your lawyer your notes, so long as you do so in such a way as to not hurt your lawyers train of thought or ability to effectively represent you.
5) Trust your lawyer. You have paid this person to represent you based on his or her skill and experience.
6) Show up on time or even early. Not showing up is one of the worst things that you can do to your case. Judges have wide discretion with respect to sanctions against you and your case for failing to arrive on time.
7) bring all documents requested of you by the lawyer. For instance, in a Florida divorce, it is necessary to show proof of residency in Florida which can be done with a valid driver’s license. If you do not bring this document, a final hearing might not be able to occur.
8) Have an appropriate demeanor. You can actually hurt your case by doing things such as rolling your eyes or making noises concerning issues you disagree with during the trial.
9) In this connection, you should also be civil to any opposing parties. For example, if you were involved in a business dispute, it will probably not help your case to get in an argument with the other side at the court.
10) Court can be a very stressful experience for both the client and the attorney. A criminal trial can affect your liberty, while a civil trial can determine whether you owe money or will be owed money by another. While it might seem that the end of the world is near, stay strong as there is often the opportunity to appeal an unfavorable decision.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Ten Things to Know After Being Arrested in Florida

Do not talk with anyone from the police or other agency. It is your legal right to remain silent!
Do not agree to any search and do not give anything to police.
Do not talk about your case with your family, friends, or others in jail. This information could be used against you and/or taped (jail phone calls).
Do not represent yourself. Hire an experienced attorney as the State Attorneys are experienced attorneys who know the law much better than you.
Do not go to court without retaining an attorney whose major area of practice is criminal law.
Tell your attorney everything about your case. Remember, whatever you tell your attorney is highly confidential and cannot be used against you in court.
Provide your attorney a list of any witnesses that may have information that may help your case.
Do not sign anything, such as a confession or statement, without first speaking to your lawyer. Refuse to do so if asked and request your lawyer.
DO NOT PLEAD GUILTY if arraigned without a lawyer. A lawyer may be able to get you other choices that will not result in a conviction on your record.
If you have been arrested call our office for a FREE consultation.
The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Real Estate Ownership Interests in Florida

Types of Real Property Ownership
Law Offices of Michael D. Stewart
866-438-6574
www.TheMiamiLaw.com

There are a number of different types of real property ownership in Florida. Knowing how to take title to property can be an important part of planning your financial future. Owning a property gives one certain rights and privileges with respect to the use of the property, such as the right to lease or the right to use the property.
The different types of ownership interests in property are called estates. Estates indicate the quantity, nature and extent of rights held in the property.
Non-freehold estates exist for a certain period of time. Freehold estates exist for an indefinite period of time. The two types of freehold estates are: 1) fee estates, and 2) life estates.
A fee estate is where the owner is entitled to full use and ownership of the property without restriction on disposition of the property. The most common of these is the fee simple estate, where the owner owns the property outright, subject only to restrictions such as existing easements, covenants and the like. At death, the owner of a fee simple estate’s property will be transferred according to his or her wishes, either by will, trust, or by intestate succession.
The owner of a life estate, on the other hand, is limited to ownership of the property for only his or her lifetime. At death, the ownership will end and the estate will revert back to the grantor or be transferred to what is called a remainderman – or one indicated by the grantor to receive the property after the life estate owner. Life estates are often used in connection with trusts.
The main types of joint ownership of real estate are: 1) Joint Tenancy, 2) Tenancy in Common, and 3) Tenancy by the Entirety.
A joint tenancy is where two owners hold a property and upon the death of one owner the property is legally transferred in whole to the survivor. A joint tenancy is common in connection with a married couple’s ownership of property – called a tenancy by the entirety – see below.
A tenancy in common is where two or more owners hold an undivided interest in the property. Each owner has his or her own separate legal title to his or her own undivided interest in the property. The joint owners have equal rights to possession of the property. Upon death of one of the owners, his or her share will pass not by right of survivorship, but to an individual or entity of his or her own choosing, whether by will or through intestacy. If a tenant in common chooses to sell his or her interest in the property, the purchaser will take the interest and become a tenant in common with the other owners.
Tenancy by the Entirety is created by a conveyance to husband and wife. Differing from a Joint Tenancy, in a Tenancy by the Entirety, neither the husband or the wife can separately transfer their interest in the property during their lifetime. Dissolution of Marriage in Florida, or divorce, will negate a tenancy by the entirety. While the tenancy by the entirety exists, the interest of either the husband or the wife cannot be attached by creditors.
Choosing the property ownership interest in real estate is an important financial planning matter for both individuals and companies.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Florida Real Estate Law – Easements

EASEMENTS IN FLORIDA REAL ESTATE
LAW OFFICES OF MICHAEL D. STEWART
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An easement is a limited right to use the land of another. It is a benefit based in land ownership, that gives someone the right of use or enjoyment of another person’s land for a special purpose not inconsistent with the general property rights of the owner. A common example of an easement would be to allow the Florida Power and Light Company to enter your land to provide utility services. Another example of an easement would be for the use of another’s land to enter or exit their own property. In this instance, when a new method of ingress and egress to the property arises, such as a new highway, the original easement may no longer be necessary and will cease to have effect. An easement can be created by law or by agreement between parties.
Florida adopts the common law rule of implied grant of a way of necessity for easements. Under this common law, if a grantor sells land which is inaccessible, there is presumed to be an easement for access on the adjoining land for use to access the sold land. Implied easements exist when there is no other reasonable or practicable means of ingress or egress to or from the land. It must be shown that ingress and egress are necessary for the use or enjoyment of the land.
Easements cannot also be created by grant from an original owner, such as through a written agreement, deed or deed reservation. 20 Florida Jurisprudence 2d Easements and Licenses in Real Property Sections 15-25). A contract must show a property owner’s intention to create a permanent right in a specific piece of land.
Easements created by implication occur in areas such as streets, alleys or parks.
Where an easement exists, a cause of action for trespass will not lie as long as the owner of the easement uses the easement in an orderly and proper manner. If the easement is blocked, the easement owner can encroach on the land as far as necessary to gain access and avoid the blockage.
If the owner of land in which an easement is claimed prevents the easement owner from using the easement, either the property owner, the easement owner or the board of county commissioners of the county can file suit in circuit court in the county where the property is located, to determine whether the easement exists, and whether and the amount the owner of the property is entitled to receive compensation for the easement.
When an easement exists, it will remain in existence for as long as reasonably necessary. Courts in their discretion will look to such factors as:
1) the type, duration, extent and location of the easement;
2) the amount of compensation;
3) the attorneys’ fees and costs to be awarded to either party for unreasonably refusal to comply with the provisions of the statute
Usually the owner of the easement is responsible for maintaining it. Alternatively, the parties can agree by contract who is to maintain the easement. However, in the example of a cemetery, relatives of the deceased are granted ingress and egress form the cemetery to visit their loved ones’ graves. If the cemetery becomes abandoned, the relatives may maintain the cemetery themselves.
Two other types of easement are a prescriptive easement and a conservative easement. A prescriptive easement is similar to adverse possession. To show adverse possession in Florida, it needs to be shown that:
1) there has been actual, continuous, uninterrupted use of the property for twenty years (Florida has a shorter period);
2) Use under claim of right that is in conflict with the owner of the properties use;
3) Knowledge of the use by the landowner, or use that is open, notorious and uninterrupted that knowledge by the landowner will be presumed.
A conservative easement is created to limit further development of property. These are obtained by the government or by charitable organizations to prevent activities such as construction or excavation at certain properties.
The Florida Statutes concerning easements is listed below:
CHAPTER 704
EASEMENTS
704.01 Common-law and statutory easements defined and determined.
704.02 When lands enclosed, person using easement to maintain gates.
704.03 “Practicable” defined.
704.04 Judicial remedy and compensation to servient owner.
704.05 Easements and rights of entry.
704.06 Conservation easements; creation; acquisition; enforcement.
704.07 Solar easements; creation; remedies.
704.08 Cemeteries; right of ingress and egress for visiting or maintenance.
704.01 Common-law and statutory easements defined and determined.–
(1) IMPLIED GRANT OF WAY OF NECESSITY.–The common-law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over her or his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United States; provided, however, that where there is a common source of title subsequent to the original grant from the state or United States, the right of the dominant tenement shall not be terminated if title of either the dominant or servient tenement has been or should be transferred for nonpayment of taxes either by foreclosure, reversion, or otherwise.
1(2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT.–Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land, including land formed by accretion, reliction, or other naturally occurring processes, or portion thereof, which is being used or is desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes is shut off or hemmed in by lands, fencing, or other improvements by other persons so that no practicable route of egress or ingress is available therefrom to the nearest practicable public or private road in which the landlocked owner has vested easement rights. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service, including, but not limited to, water, wastewater, reclaimed water, natural gas, electricity, and telephone service, over, under, through, and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof, provided that such easement shall be used only in an orderly and proper manner.
History.–s. 1, ch. 7326, 1917; RGS 4999; CGL 7088; s. 1, ch. 28070, 1953; s. 220, ch. 77-104; s. 1, ch. 91-117; s. 788, ch. 97-102; ss. 1, 2, ch. 2005-214.
1Note.–Section 2, ch. 2005-214, reenacted subsection (2) as it existed prior to amendment by s. 1, ch. 2005-214, “[e]ffective only if a court determines that subsection (2) . . . , as amended by [s. 1, ch. 2005-214], is unconstitutional and such determination is upheld on appeal,” to read:
(2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT.–Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land or portion thereof outside any municipality which is being used or desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service, including, but not limited to, water, wastewater, reclaimed water, natural gas, electricity, and telephone service, over, under, through, and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner.
704.02 When lands enclosed, person using easement to maintain gates.–When the land on which the statutory easement referred to in s. 704.01(2) shall be in use, or afterwards put to the use of enclosing farm or grove products or livestock, the owner or tenant of the dominant tenement using the easement of the same shall, if no compensation is paid under s. 704.04, when requested by the owner of the servient tenement, erect and maintain either a cattle guard or a gate at each place where said easement intersects a fence. Any such gate is to be kept closed when not opened for passage, and any such cattle guard or gate so erected and maintained shall be in substantial conformity with the character of the fence at such intersection.
History.–s. 2, ch. 7326, 1917; RGS 5000; CGL 7089; s. 2, ch. 28070, 1953.
704.03 “Practicable” defined.–For the purposes of this chapter the word “practicable,” as used in s. 704.01, shall be held and construed to mean “without the use of bridge, ferry, turnpike road, embankment, or substantial fill.”
History.–s. 3, ch. 7326, 1917; RGS 5001; CGL 7090; s. 3, ch. 28070, 1953.
1704.04 Judicial remedy and compensation to servient owner.–When the owner or owners of such lands across which a statutory way of necessity under s. 704.01(2) is claimed, exclusive of the common-law right, objects or refuses to permit the use of such way under the conditions set forth herein or until she or he receives compensation therefor, either party or the board of county commissioners of such county may file suit in the circuit court of the county wherein the land is located in order to determine if the claim for said easement exists, and the amount of compensation to which said party is entitled for use of such easement. When said easement is awarded to the owner of the dominant tenement, it shall be in compliance with s. 704.01(2) and shall exist so long as such easement is reasonably necessary. The court, in its discretion, shall determine all questions, including the type, duration, extent, and location of the easement, the amount of compensation, and the attorney’s fees and costs to be awarded to either party for unreasonable refusal to comply with the provisions of s. 704.01(2), provided that if either of said parties so requests in her or his original pleadings, the amount of compensation may be determined by a jury trial. The easement shall date from the time the award is paid.
History.–s. 4, ch. 28070, 1953; s. 2, ch. 91-117; s. 789, ch. 97-102; ss. 3, 4, ch. 2005-214.
1Note.–Section 4, ch. 2005-214, reenacted s. 704.04 as it existed prior to amendment by s. 3, ch. 2005-214, “[e]ffective only if a court determines that [s.] 704.04 . . . , as amended by [s. 3, ch. 2005-214], is unconstitutional and such determination is upheld on appeal,” to read:
704.04 Judicial remedy and compensation to servient owner.–When the owner or owners of such lands across which a statutory way of necessity under s. 704.01(2) is claimed, exclusive of the common-law right, objects or refuses to permit the use of such way under the conditions set forth herein or until she or he receives compensation therefor, either party or the board of county commissioners of such county may file suit in the circuit court of the county wherein the land is located in order to determine if the claim for said easement exists, and the amount of compensation to which said party is entitled for use of such easement. Where said easement is awarded to the owner of the dominant tenement, it shall be in compliance with s. 704.01(2) and shall exist so long as such easement is reasonably necessary for the purposes stated herein. The court, in its discretion, shall determine all questions, including the type, duration, extent, and location of the easement, the amount of compensation, and the attorney’s fees and costs to be awarded to either party for unreasonable refusal to comply with the provisions of s. 704.01(2) provided that if either of said parties so requests in her or his original pleadings, the amount of compensation may be determined by a jury trial. The easement shall date from the time the award is paid.
704.05 Easements and rights of entry.–
(1) The rights and interests in land which are subject to being extinguished by marketable record title pursuant to the provisions of s. 712.04 shall include rights of entry or of an easement, given or reserved in any conveyance or devise of realty, when given or reserved for the purpose of mining, drilling, exploring, or developing for oil, gas, minerals, or fissionable materials, unless those rights of entry or easement are excepted or not affected by the provisions of s. 712.03 or s. 712.04. However, the provisions of this section shall not apply to interests reserved or otherwise held by the state or by any of its agencies, boards, or departments.
(2) Any person claiming such a right of entry or easement may preserve and protect the same from extinguishment by the operation of this act by filing a notice in the form and in accordance with the procedures set forth in ss. 712.05 and 712.06.
(3) This section is intended, and shall be deemed, to operate both prospectively and retrospectively.
(4) The provisions of this section shall not revive any right or interest that was extinguished by the operation of chapter 712 prior to June 6, 1975.
History.–s. 1, ch. 70-100; s. 1, ch. 73-140; s. 1, ch. 75-94; s. 70, ch. 99-3.
704.06 Conservation easements; creation; acquisition; enforcement.–
(1) As used in this section, “conservation easement” means a right or interest in real property which is appropriate to retaining land or water areas predominantly in their natural, scenic, open, agricultural, or wooded condition; retaining such areas as suitable habitat for fish, plants, or wildlife; retaining the structural integrity or physical appearance of sites or properties of historical, architectural, archaeological, or cultural significance; or maintaining existing land uses and which prohibits or limits any or all of the following:
(a) Construction or placing of buildings, roads, signs, billboards or other advertising, utilities, or other structures on or above the ground.
(b) Dumping or placing of soil or other substance or material as landfill or dumping or placing of trash, waste, or unsightly or offensive materials.
(c) Removal or destruction of trees, shrubs, or other vegetation.
(d) Excavation, dredging, or removal of loam, peat, gravel, soil, rock, or other material substance in such manner as to affect the surface.
(e) Surface use except for purposes that permit the land or water area to remain predominantly in its natural condition.
(f) Activities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or fish and wildlife habitat preservation.
(g) Acts or uses detrimental to such retention of land or water areas.
(h) Acts or uses detrimental to the preservation of the structural integrity or physical appearance of sites or properties of historical, architectural, archaeological, or cultural significance.
(2) Conservation easements are perpetual, undivided interests in property and may be created or stated in the form of a restriction, easement, covenant, or condition in any deed, will, or other instrument executed by or on behalf of the owner of the property, or in any order of taking. Such easements may be acquired in the same manner as other interests in property are acquired, except by condemnation or by other exercise of the power of eminent domain, and shall not be unassignable to other governmental bodies or agencies, charitable organizations, or trusts authorized to acquire such easements, for lack of benefit to a dominant estate.
(3) Conservation easements may be acquired by any governmental body or agency or by a charitable corporation or trust whose purposes include protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving sites or properties of historical, architectural, archaeological, or cultural significance.
(4) Conservation easements shall run with the land and be binding on all subsequent owners of the servient estate. No conservation easement shall be unenforceable on account of lack of privity of contract or lack of benefit to particular land or on account of the benefit being assignable. Conservation easements may be enforced by injunction or proceeding in equity or at law, and shall entitle the holder to enter the land in a reasonable manner and at reasonable times to assure compliance. A conservation easement may be released by the holder of the easement to the holder of the fee even though the holder of the fee may not be a governmental body or a charitable corporation or trust.
(5) All conservation easements shall be recorded and indexed in the same manner as any other instrument affecting the title to real property.
(6) The provisions of this section shall not be construed to imply that any restriction, easement, covenant, or condition which does not have the benefit of this section shall, on account of any provision hereof, be unenforceable.
(7) Recording of the conservation easement shall be notice to the property appraiser and tax collector of the county of the conveyance of the conservation easement.
(8) Conservation easements may provide for a third-party right of enforcement. As used in this section, third-party right of enforcement means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, or charitable corporation or trust as described in subsection (3), which although eligible to be a holder, is not a holder.
(9) An action affecting a conservation easement may be brought by:
(a) An owner of an interest in the real property burdened by the easement;
(b) A holder of the easement;
(c) A person having a third-party right of enforcement; or
(d) A person authorized by another law.
(10) The ownership or attempted enforcement of rights held by the holder of an easement does not subject the holder to any liability for any damage or injury that may be suffered by any person on the property or as a result of the condition of the property encumbered by a conservation easement.
(11) Nothing in this section or other provisions of law shall be construed to prohibit or limit the owner of land, or the owner of a conservation easement over land, to voluntarily negotiate the sale or utilization of such lands or easement for the construction and operation of linear facilities, including electric transmission and distribution facilities, telecommunications transmission and distribution facilities, pipeline transmission and distribution facilities, public transportation corridors, and related appurtenances, nor shall this section prohibit the use of eminent domain for said purposes as established by law. In any legal proceeding to condemn land for the purpose of construction and operation of a linear facility as described above, the court shall consider the public benefit provided by the conservation easement and linear facilities in determining which lands may be taken and the compensation paid.
History.–s. 1, ch. 76-169; s. 1, ch. 86-44; s. 74, ch. 93-206; s. 17, ch. 97-164.
704.07 Solar easements; creation; remedies.–
(1) Easements obtained for the purpose of maintaining exposure of a solar energy device shall be created in writing and shall be subject to being recorded and indexed in the same manner as any other instrument affecting the title to real property. Solar easements may be preserved and protected from extinguishment by the filing of a notice in the form and in accordance with the provisions set forth in ss. 712.05 and 712.06.
(2) In addition to fulfilling the requirements of law relating to conveyance of interests in land, the instrument creating the solar easement shall include:
(a) A description of the properties, servient and dominant.
(b) The vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement.
(c) A description of where the easement falls across the servient property in relation to existing boundaries and various setbacks established by the local zoning authority.
(d) The point on the dominant property from where the angles describing the solar easement are to be measured.
(e) Terms or conditions under which the solar easement is granted or will terminate.
(f) Any provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement.
(3) No structure under construction on October 1, 1978, shall be subject to any solar easement recorded pursuant to this section.
History.–ss. 2, 3, ch. 78-309.
704.08 Cemeteries; right of ingress and egress for visiting or maintenance.–The relatives and descendants of any person buried in a cemetery shall have an easement for ingress and egress for the purpose of visiting the cemetery at reasonable times and in a reasonable manner. The owner of the land may designate the easement. If the cemetery is abandoned or otherwise not being maintained, such relatives and descendants may request the owner to provide for reasonable maintenance of the cemetery, and, if the owner refuses or fails to maintain the cemetery, the relatives and descendants shall have the right to maintain the cemetery.
History.–s. 36, ch. 80-238.

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TheMiamiLaw.com
305-590-8909
866-438-6574