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Salpeter Gitkin, LLP Litigates Case Involving Personal Watercraft Tragedy
Posted by: James Gitkin
June 02, 2009
Topic: Personal Watercraft Accidents

My staff and I are currently litigating a case involving a very tragic accident. We represent the parents of a 14 year old boy who sadly died two weeks after the personal watercraft (also known to some as a waverunner) he was riding crashed violently into a dock at Markham Park in Sunrise, FL. There are two facets to the case right now. The first involves a claim that the adult present at the time of the crash and who owned the watercraft failed to adequately supervise the situation. The other part of the case involves claims against the manufacturer of the personal watercraft stemming in part from a) the company's alleged failure to warn the user of the watercraft about potential dangers in using it; and b) the fact that the watercraft was designed ineffectively because it can be periously dangerous in off-throttel streering situations.

The concept and problems with off-throttel steering are this - personal watercrafts have a certain level of normal steering when the throttel (or gas if you will) is utilized. When a rider stops utilizing the throttel, the watercraft's steering is practically nonexistent; it is pretty much impossible to steer. The problem with this design feature (or flaw) is that in dangerous situations (i.e. the watercraft is apporaching a dock, another watercraft or boat, or some other stationary or moving object) a rider's natural inclination is to take his/her hand off the gas. The instinctual thought is that by slowing down, the dangerous scenario will become less dangerous. Unfortunately, most riders are not warned and do not realize that by taking their hand off of the throttel, they have in fact made an accident much more likely because they cannot steer and avoid whatever they are about to hit.

When we see commericals for personal watercrafts or see images of watercrafts on TV and in the movies, the appearance is that these things are very easy to ride and just a ton of fun. While they are fun (I have ridden on my fair share), most people do not realize that training and experience and understanding of the true dangers of watercrafts are necesarry before riding.  Most riders just simply do not understand or have not been warned that tragic accidents do result from riding personal watercrafts.  We will update further as our sad case procedes further in litigation.

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Don't Be Dissuaded to Pursue a He Said/She Said Claim
Posted by: James Gitkin
January 18, 2009
Topic: Auto Accidents

There are two main components of an injury claim - LIABILITY and DAMAGES (causation is another big one to be addressed in another post).  Liability concerns who did what wrong in an accident and damages have to do with the extent of a person's injuries, economic losses, and pain and suffering after an accident.  With respect to liability in auto accident cases, often the who did what wrong is relatively cut and dry.  I have many auto cases where my client was rear-ended or where the other party clearly ran a red light and is conceeding liability.  I signed up a case last week where a man ran a red light and slammed into my client's car, causing the car to flip over two times.  When I spoke to the other driver's insurance adjuster I was assured that the liability would simply not be an issue in that case.

Not all cases are that easy, unfortunately.  As an injury and auto accident attorney in Fort Lauderdale, I have seen many accidents where you would think that the parties were in completely different accidents.  My client and the opposing driver have such divergent stories of the accident and are ready to swear on anything that their version of the story is the right one.  Also, there are times where witnesses with fuzzy memories of the accident can cloud the facts and make it even more confusing as to who actually caused the accident.  I have even had clients who received the citation from the investigating officer but were adament that the accident was actually the fault of the other driver.

Do not be dissuaded to speak with an attorney if there are conflicting stories regarding the accident, or even if you were issued the citation.  For starters, Florida law adheres to the doctrine of comparative fault in auto accidents.  Essentially what that means is that in the event you go to a jury trial for your case, the jury does not make a black or white determination of negligence of the defendant driver - i.e., yes it was definitely the other driver's fault or no it was not.  Florida juries are instructed by the court to apportion percentages of fault to all parties (and non-parties) including the injured person that filed the lawsuit.  Thus, even if the jury is somewhat compelled by the other driver's story, they may believe that your version still makes more sense and decide that the other driver is 50, 60, etc. percent responsible for the accident.  You would then receive that percentage of your verdict amount ($200,000.00 verdict; other driver deemed 50% responsible; judgment amount would be $100,000.00).

Also, seasoned trial lawyers know that oral testimony is not the only liability evidence that can be presented at an auto accident trial.  When the damages justify the expense, in a situation where the are conflicting versions of an accident, most good trial lawyers will dig deeper by retaining an accident reconstructionist (an expert who can scientifically reconstruct the accident and many times determine the true way in which an accident occured).  Often the accident reconstructionist will read transcripts of the testimony, examine the crush damage of the vehicles, review the investigative reports and traffic light sequencing reports, and look at the accident site to piece together speeds of vehicles and facts of an accident.  The findings are sometimes used to create animated simulations of the accident that juries can find to be very compelling.

Lastly, receiving a citation does not mean that your case is dead in the water.  In Florida, the Accident Report Privilege is applicable to most accident investigations.  The Accident Report Privilege stands for the proposition that statements made to the investigating officer after an accident are not admissible in a civil(injury) trial.  After most accidents, investigating officers rely primarily on statements which significantly hamstrings the officer's ability to testify about anything in the injury case.  All the officer can typically testify to is what he/she observed or saw.  Also, the fact that you received the citation is not admissible.

Overall, if you have been injured in an accident and believe that the accident was caused by the other driver, speak with an attorney and find out about your rights.  It could be that what you believe to be an insurmountable situation is something that the attorny can navigate through to get you a recovery.

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Overcoming the Stigma and Bias Associated with Slip and Fall Cases
Posted by: James Gitkin
January 06, 2009
Topic: Slip and Fall/Trip and Fall

Let's face it, the phrases 'slip and fall' and 'trip and fall' often do not evoke positive reactions from most people.  When I have interviewed potential jurors before jury trials, bringing up these terms have brought out some very negative associations with flamboyant attorney adverstising, money hungry clients, and manufactured cases.  It's a shame that some attorney adverstising and tort reform rhetoric has conditioned many people to assume that someone injured in a slip and fall accident, and the attorney representing the injured person, are simply working the system to make money.  As a Fort Lauderdale-based attorney representing people who have been injured in all types of accidents, I have handled slip and fall and trip and fall cases that have been due to real negligence, causing very serious injuries.  Many of these cases have involved inaction to fix deficient conditions (i.e. leaking roofs that should have been fixed months before the accident) and have resulted in the type of injuries that require surgical intervention, physical therapy, and permanent impairment.

The most important step in overcoming the biases associated with slip and fall/trip and fall cases is the selection of an experienced attorney who has actually litigated and tried these cases.  Right from the get-go, insurance adjusters (who also have biases about these cases) will recognize that a reputable lawyer and law firm is handling the case, which may actually alleviate the need to even file a lawsuit.  Should the case have to proceed to litigation, an experienced attorney will have the skill set and knowledge to overcome perceptions that the injured person must have been clumsy or somehow caused themselves to fall; and, the attorney will know how to appropriately bolster the liability portion of the case through discovery requests, depositions and preservation of evidence.  Ultimately, if the case has to be tried, the seasoned injury trial lawyer will have the ability to deconstruct these stigmas and biases during jury selection, opening statement and closing argument by illuminating the facts of the case for the juror who is stuck on generic perceptions.

Overall, I have seen regular people devasted by the effects of slip and fall and trip and fall accidents.  Many of the people who contact me after these accidents say the same thing, 'I never believed in injury lawsuits or thought I would hire an injury attorney until this accident happened.'  To made whole after accidents of this nature, it is critical to hire an attorney who will handle the case with dilligence and an eye towards a trial presentation from day one.  Doing so could make the difference in terms of getting a recovery that gets you back on your feet.

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Have a Safe and Happy Fourth of July
Posted by: James Gitkin
July 04, 2008
Topic: Auto Accidents

The Fourth of July is a great holiday, especially when it comes on a Friday like this year.  We all get a nice long weekend, and we can spend our Friday with our families and friends bar-b-que-ing at a party, watching fireworks and enjoying the day.  Almost every Fourth of July party involves some amount of alcohol (and there is nothing wrong with that).  Many people like to enjoy a nice, cold beer at their July 4th parties.  We all know where the problems comes though - making that awful decision that you're sober enough and getting behind the wheel of your car.  As a lawyer in South Florida practicing personal injury law, I have handled far too many auto accident cases, and many of them have involved a driver that was intoxicated.  In one of my cases, a drunk driver hit my clients' car and took off; the car was ultimately found ditched at a gas station several miles down the road containing a case of beer and booze, with some of the containers opened.  Thankfully, my clients only suffered neck and back injuries that caused them pain and discomfort, but haven't completely derailed their ability to go to work and live their lives.  I have unfortunately also been a part of cases where victims have not been so lucky where the results are catastrophic.

 I don't mean to be the grim reaper on a nice day.  Everyone should enjoy the holiday and by all means have a beer or two to celebrate the occasion and the day off.  Just remember that getting behind the wheel of your car today after having anything to drink is an incredibly poor decision that could have terrible results for some unsuspecting people.  Take a cab, sleep it off, or just choose not to drink if you are definitely going to drive.  Be safe and have a wonderful Fourth of July!

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Bring a 'Buddy' to Help with Medical Events and Surgeries
Posted by: James Gitkin
July 01, 2008
Topic: Medical Malpractice

For almost all of us, there have been or will be times in our lives where we will go through some sort of medical event.  Many of these events are negative - diagnosis of some sort of disease, a significant accident, or the need for some sort of surgery.  Other times, brushes with the medical community may stem from a positive situation like childbirth or choosing an elective procedure that will improve our lives.  No matter what the situation, if you are going through a time in your life where you will be dealing with doctors, hospitals, medical procedures and the like, it is a good idea to have a loved-one be your 'buddy' through the entire process.  Having to go to the hospital and deal with doctors during a medical event or crisis can be very traumatic and scary for the patient.  Decisions have to be made that affect your health, and it is often times difficult to be calm and collected in making those decisions.  Moreover, information is being spouted at you as the patient and you may not be in the best emotional state to fully process what is being explained.  Add in pain medication, being groggy after a surgery, and it's almost impossible for a patient to keep track of what is going on with his or her care and treatment.

I truly believe that doctors, nurses and hospital/medical staff have our best interests in mind when we are going through a medical crisis or event.  Doctors and nurses endure years of training and financial sacrifices to help us in our time of need.  But, no one is infallible and mistakes can be made.  As a lawyer practicing medical malpractice in Fort Lauderdale and throughout Florida, I have seen situations where good doctors and hospital staff have made bad decisions.  All of us make mistakes and poor decisions at our jobs - no matter how hard we prepare or work, mistakes and poor choices are inevitable.  Unfortunately, when a mistake is made in the world of medicine, the results can be devistating.  Sometimes bringing along a friend or loved-one, a 'buddy', can help make the difference when going through the hospital and medical system.  That is not to say that bringing a 'buddy' will stop mistakes from  happening.  But, having a lucid, clear thinking and objective person who cares about you by your side is invaluable, especially in a hospital setting.  Your friend or loved one can keep track and even takes notes when the myriad of health care professionals march through your room and they can speak up for you if they hear or see something that does not seem to gel with their understanding of what is suppossed to happening. 

In my own life, my wife had a very difficult pregnancy that required a week-long stay in the hospital and then months of bed rest.  When we were in the hospital, one time a doctor making the rounds starting looking at a chart and making comments about my wife's progression.  When I heard facts that seemed off, I mentioned something to the doctor and it turned out that he was looking at the chart for the patient in the next room.  He quickly found the right chart and began getting his facts right.  At the time, my wife was on medication and would probably never had caught the mistake.  Most likely the doctor would have figured out that he was looking at the wrong chart, but my wife felt much more at ease knowing that I was there to be her voice and her advocate.

Again, doctors and medical staff provide an unbelievable service to our community.  It is truly a wonderful thing to care for someone who is sick.  But, they like the rest of us make mistakes and poor decisions.  Having an advocate or a 'buddy' in your corner is a wonderful way to make sure that things run as smoothly as possible and gives the patient the piece of mind to focus on what is most important, getting better.  If you are about to go through some sort of medical ordeal, throw your pride out the window and ask someone close to you to be your 'buddy' through the entire process, from initial visits, to the hospital, to post op appointments.

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