In a bold decision, Miami Dade’s Judge Cueto struck down Florida’s Workers’ Compensation statute as unconstitutional. The ruling is considered a victory for injured workers.

The History of Worfile5311296496969kers’ Compensation

Before workers’ compensation, employees injured on the job sued their employers in the same manner other victims sued over their injuries. Legislatures eventually realized this was not fair for many workers, as personal injury suits frequently took a long time to settle. Worse, some on-the-job injuries did not result from negligence, but merely from working in an inherently dangerous job. Many injured workers had little or no monetary relief for their injuries.

With the advent of workers’ compensation laws, workers could get payed for on-the-job injuries much quicker via an administrative system, as opposed to the court system. To get financial relief, workers were not even required to prove an employer’s negligence, as one would be required to do in a traditional personal injury lawsuit. The tradeoff, however, was that workers could only obtain the damages listed in the workers’ compensation laws. Those damages were usually less generous than damages awarded in a typical personal injury suit.

More significantly, under the new laws, workers could never sue an employer for negligence. This was referred to as “comp immunity.” Other than in cases of near-intentional behavior by an employer, the employee could never sue the employer for any amount beyond the workers’ compensation damages. Immunity also barred a worker’s family members from suing the employer.

Judge Cueto’s Order

Judge Cueto’s order states that delicate balance was upset when the legislature routine cut workers’ compensation benefits, making it harder to get those benefits and lowering the benefit payments. In some cases, wages were made completely unrecoverable, and certain damages could not even be obtained unless a worker was permanently injured. According to Judge Cueto, those restrictions are unconstitutional. Although the order may be appealed to Florida’s higher courts, it is a step forward for Florida’s injured workers.

If you have been injured on the job, make sure you have attorneys that understand how to win your case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation.

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Victims of injuries very often suffer not only physical injuries, but emotional ones as well. Anxiety, fear, post traumatic stress disorder, and any number of mental ailments are natural consequences of injury, and damages for these injuries can be recovered from a liable party in a personal injury suit. But what if you have only mental or emotional injuries, without physical injury? In these cases, the law makes it much tougher to recover damages.

Crying

Situations Where Victims Might Have Only Emotional/Mental Damages

In many cases, someone may suffer no physical injury or impact at all, but still have mental or emotional injury. Emotional damage can stem from an event that happened to you, or from witnessing something happen to a loved one. Some common examples of situations where there may only be emotional damage would be:

- Standing on the corner watching your mother cross the street when she is hit by a car;

- Observing a relative victimized by medical malpractice;

- Witnessing (but not eating) a foreign object in your food;

- Learning that the grave where you thought a loved one is buried is actually not there; or

- Learning that a child has been victimized at school or an after care activity.

All of these are horrific, the fault of another’s negligence, and likely to lead to emotional trauma. But you haven’t actually sustained any direct physical injury, meaning your emotional damages may be difficult to recover damages for.

The Impact Rule

Florida has adopted what is known as the “impact rule.” The impact rule requires that, in order to recover for only emotional trauma, you must sustain some physical contact, no matter how slight, and even if the physical contact itself doesn’t injure you. So if a robber simply touches his gun to your forehead, or your lips touch a foreign substance on the food, or you ingest harmful particles while breathing, you have physical contact—“impact”—and can recover for claims with only emotional damages.

There are exceptions to this “impact rule.” You can recover for just emotional damages if (1) your emotional or mental trauma is manifesting itself in a physical way, for example, headaches, dizziness, or even a heart attack, (2) you were involved in some way with the event that caused the trauma, and (3) you had a close personal relationship with the injured person.

Still, even with the exception, many situations still would be barred from damage recovery because of the Impact Rule.

For example:

- If a child is sexually abused, but you were not present at the time it was happening, you may still be barred recovery;

- If a child is born stillborn because of malpractice, you were not part of the malpractice or involved in it, and thus, may be prohibited from recovering; and

- If a loved one is not in a grave site you were told they were in, you were not involved with that, and did not observe it, and thus, may not be able to recover.

It’s worth noting that the “impact rule” only applies if there is an injury caused by negligence—not by an intentional act, where courts are more likely to allow emotional-only damage claims.

Emotional damages are one of the most complex and confusing areas of personal injury law. If you have suffered any kind of injury because of the actions of another, talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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If you are injured by an agency of the state or city government, or any public entity, you are entitled to recover damages for your injuries. Governments, just like private companies, can be sued for negligence. However, government entities are often protected by what is known as “sovereign immunity,” a concept that can make suing and recovering, much more difficult for injured Florida victims.

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What is Sovereign Immunity?

Sovereign Immunity has its roots from the days when we were an English colony. It means that you can’t sue the King—in modern days of course, “the King” being the government (sometimes called “the sovereign”). In many countries, citizens can’t sue their governments at all. But in Florida as well as many other states, the state has consented by statute to allow itself to be sued for certain things, and only up to a certain amount.

Sovereign immunity extends to any agent or entity of government. Some are obvious, like the city you live in, or police officers. Some are not, such as a public hospital where you are a victim of malpractice, or a public school.  Sometimes it can even be difficult to determine if immunity even applies, such as where private industry teams with government to engage in a public affair, building project, running a school, or other function.

When is the State Liable?

You cannot sue a state agency for decisions they make in the course of “operating” the state. Governments are generally shielded from being sued just for making bad decisions.  You can only sue if they implement their decisions incorrectly or negligently. So, for example:

- You can’t sue for there not being enough police officers on your street when a crime occurs. But if an officer shows up drunk and injures you, you may have a claim.

- You can’t sue because the state built a lane change that is difficult to navigate. But you could sue if the painted lines were incorrect, or the lighting was poor, or there was some other condition on the road itself making it dangerous.

Damages Can be Limited

Even if you can sue, your damages are limited to $200,000-$300,000, depending on the number of people who are suing. That means that even if a jury awards you $1 million, the state only has to pay $200,000.

For many injuries, that may be sufficient compensation. But for catastrophic injuries, that cap is a huge burden and isolates the state from any serious financial liability for these kinds of cases.

The only way to recover more than those amounts is to file a claims bill. This is an actual bill filed in the Florida legislature, sponsored by a member of the legislature just like any other law or bill would be. It is a burdensome and often futile process—many claims bills, even those for the most seriously injured victims, are denied in the legislature. Some victims even hire lobbyists to get their claims through. Many legislators simply don’t like the idea of paying state money for victims.

No matter how you’re injured, even if it’s at the hands of a state agent, make sure you have attorneys that understand how to win your case against the entities you are suing. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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A Florida charter school is being sued by a student for personal injuries arising from a traumatic brain injury suffered during an organized and sanctioned school function featuring, of all things, Sumo Wrestling. The tragedy brings up questions about who is at fault when events such as these go wrong; our Miami injury attorneys may be able to provide valuable answers.

Sumo Suit

What Exactly Happened?

The event featured large, inflatable suits, which children (and adults) fit themselves into. The size of the suit is supposed to allow them to smash into each other in the same way that a sumo wrestler might, and also allows the user to tumble, roll around, and bounce off the floor and walls, presumably protected by the large inflatable “body” that they are fitted inside of. The activity is often used at carnivals or festivals, and can even be rented for private functions.

The suit alleges that the student suffered brain damage after having her head bashed when it repeatedly hit the floor, unprotected by the inflatable suit. The student suffered immediate dizziness and cognitive problems, and now, the suit alleges, suffers from severe brain damage.

Who is responsible for the injuries? Many entities have been sued, but in situations like this, there can be many possibilities as to who is really responsible:

  1. The School – The school may have been aware that such an activity was dangerous, or could be dangerous. The school’s employees may also lack the training required to fit the suits on children, determine what age or size children are best fitted for the suits, or sense when there’s a problem during the activity.
  2. The Company Providing the Suits – The company also may not have had employees present that could recognize problems or fit the suits properly. Company employees may have been rushed or distracted, leading to a failure to properly ensure suits were fitted and secured.
  3. The Manufacturer or Designer of the Suit – It is possible everyone present was doing their job, but the suits themselves failed. This would be an action in products liability—the usage of a product with a defective design, or a product that had a good design but just failed. If, for example, a suit tore, loosening the student in the suit enough to hit her head, there would be a products liability problem.

Unfortunately, many people who are injured during recreational activities may assume the problem is theirs—that they took the risk, or voluntarily assumed the risk of injury by participating in a particular activity. And surely, there are instances in law where we recognize that you cannot claim injury that naturally arises from a dangerous activity.

But most of the time, when something goes unexpectedly wrong, such as in this case, someone somewhere failed to act reasonably. Even a parachuter jumping out of a plane has a right to expect that his parachute won’t malfunction, or that it is made in a way to slow a fall to a safe speed when it is extracted.

Our Attorneys Are Here to Help You

Don’t assume that because you may be injured while engaging in a recreational activity or one that may even seem inherently dangerous, nobody is responsible for your injuries. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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If you trip and fall on someone else’s property because a dangerous condition existed, such as, for example, a wet substance, the property owner should be liable for your injuries. At least, that’s the basic idea behind premises liability. But the ability to show a business owner is liable for your injuries may actually hinge on where the dangerous condition was, and whether you had permission to be in the area you fell. Our Miami premises liability attorneys are prepared to help you recover compensation for your injuries.

Slippery When Wet

Premises Liability and Trespassing

We’ve all been in the situation where we are in a store, hospital, or someone’s house, and had full permission to be there. But that doesn’t mean you have permission to be just anywhere on on the premises. What if you are in, for example, a grocery store, and you fall and injure yourself in the stockroom? Were you allowed to be there? What if the door to the stock room is open? What if an employee expressly tells you to go into the stockroom to find an item? What if you go into the stockroom and then venture into the employee lounge and fall there?

These seemingly silly questions get to the heart of what your status is on someone’s premises. Being somewhere you don’t have permission to be makes you a trespasser, even if you have permission to be in the store itself. Florida law does not require a business owner to warn trespassers of anything other than known, concealed dangers. That’s a high standard—recovering damages as a trespasser is a very difficult threshold. In fact, many states have enacted laws making it almost impossible to sue if you’re injured as a trespasser.

You can go from being an invited customer to a trespasser simply by walking from an area you are allowed to be (the food aisles) into an area you are not supposed to be (the stockroom). Making matters more difficult, as illustrated by our hypothetical questions, sometimes it isn’t so easy to tell where you’re allowed to be.

This was the situation in one Florida case, Denniser v. Columbia Hosp. Corp. of South Broward. In Denniser, a relative was staying with a sick family member in the hospital. The relative was there for many hours, and wandered into an unlocked employee break room, where she fell on a wet substance. The court held that although she had a right to be in the hospital, she had no right to be in the break room. Just like that, she had gone from a guest owed a duty of care by the hospital, to a simple trespasser, with a burden at trial which will be very difficult to prove.

Be Careful and Contact an Attorney

Always be careful when venturing “off the beaten path” when you are in a business. Don’t assume that there will be signs or barriers preventing you from walking in areas you aren’t allowed to walk. Asking permission from an employee to walk somewhere you are unsure of can help you avoid being considered a trespasser.

If you have suffered an injury due to a fall, don’t wonder about your rights or what burden will have to be proven to find liability. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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A recent article from Forbes discussed the topic of medical malpractice lawsuits, particularly, how the motivation in filing a malpractice lawsuit is not always about a monetary damage award. Although many areas of personal injury law have emotional aspects to them which go beyond monetary awards, medical malpractice lawsuits and the emotion involved in them can be especially motivated by more than simply a damage award. It is critical to secure the services of a skilled Miami malpractice attorney to succeed in your case.

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Recent Case of Malpractice

The Forbes article discussed a daughter whose mother was in a hospital. The mother was not doing well, and the patient’s daughter called the treating doctor to change medications. She was met with a refusal to even respond, with the treating doctor saying that it was a weekend and he needed a break. The mother eventually did survive, but the daughter, upset with the standard of care, and wanting to effect a change, opted to file a formal complaint with the governing medical board as opposed to filing a lawsuit.

We often hear politicians saying that medical malpractice lawsuits are expensive and something to avoid. But unfortunately, as the Forbes article further points out, other alternatives to malpractice lawsuits—such as registering complaints with governing agencies or boards that regulate medical professionals—often go nowhere. The fact is that often, a lawsuit is the only avenue that that really gets anyone’s attention or motivates any type of systemic change.

Victims Seek More Than Monetary Damages

Victims of malpractice often are not just seeking compensation, but also seek change or reform. A malpractice victim may sue with the hope that the suit may bring to light a problem in the medical system. One famous case that made such changes is the Libby Zion law, a law in New York which limits the hours medical residents can work. The law was enacted after a lawsuit was filed when a medical intern, deprived of sleep, made a medical error leading to the death of a patient.

Certainly, lawsuits don’t solve every problem, and there is nothing a judge or jury can do to compel a doctor or medical facility to change its ways. Those who have been malpractice victims, or who have had family members who were victims, should keep in mind that litigation will require them to relive what may be bad memories, and may prevent them from putting the event behind them. And in the end, there is usually no obvious “punishment” other than a significant money award.

Still, for those aggrieved by malpractice, a lawsuit is their chance to face those who may have wronged them, and to hold medical providers responsible. And large damage awards do tend to effect change, be it through discipline of offending treaters, or changes in policy or procedure.

Contact Our Attorneys

If you think you have been a victim of medical malpractice, don’t wait to seek help. Malpractice suits have short timeframes in which a lawsuit can be brought, and medical malpractice is a specialized area of personal injury law. Talk to the Miami injury attorneys of Gerson & Schwartz, P.A. today for a free consultation to discuss your case.

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Our Miami nursing home abuse attorneys have previously discussed unfortunate incidents in which elderly individuals were the victims of nursing home abuse and/or neglect. In August, we discussed a case in which a Florida jury awarded more than $1.1 billion to the son of a woman who had suffered abuse at the hands of a negligent Polk County nursing home.  Apparently, that was not the first time the operators of that nursing home were under fire for such misconduct as a different Polk County jury awarded a $114 million verdict against the companies in another nursing home abuse case.

Old Man

Falls Can Be a Sign of Nursing Home Abuse

According to the Centers for Disease Control and Prevention, falls are the leading cause of injury death and the most common cause of nonfatal injuries and hospital admissions for trauma in adults over 65. Further, the CDC estimates that 20-30% of falls result in moderate to severe injuries such as lacerations, hip fractures, or head traumas, and are the most common cause of traumatic brain injuries.

Perhaps most disturbing are the statistics on the frequency of falls occurring in nursing homes. According to the CDC, a typical nursing home with 100 beds reports 100 to 200 falls every year, however, many falls go unreported. Somewhere between 50-75% of nursing home residents experience a fall each year, more than double the rate of falls for adults over 65 living outside nursing homes. Many patients fall more than once with the average at 2.6 falls per person annually.

Despite these alarming statistics, Florida Governor Rick Scott recently signed into law a bill that shields the owners, investors, managers and other employees and individuals of nursing homes from liability for their failure to protect, and to ensure the well-being and rights of home residents. S.B. 670 does several things, including:

  • Prohibiting “passive investors” from being named as defendants in lawsuits against nursing homes. A passive investor is an “an individual or entity that has an interest in a facility but does not participate in the decision making or operations of the facility”; and
  • Requiring plaintiffs seeking punitive damages to demonstrate upfront, before trial, that there is reasonable basis for recovery of such damages. A judge would make such a determination before hearing the full weight the evidence during a trial.

Nursing home abuse and neglect is an ongoing issue throughout Florida. The Florida Health Care Association estimates that about 72,000 elders rely on nursing homes for long-term care. Nursing homes have duty to their residents to ensure that there are sufficient measures in place to prevent falls and adequate staff to supervise patients. A nursing home’s failure to satisfy these obligations may render them liable for any resulting injuries.

Contact an Attorney Today

The Miami elder abuse attorneys of Gerson and Schwartz, P.A. have decades of experience handling matters involving nursing home abuse. If you believe that a loved one has been the victim of nursing home abuse or as been harmed or injured due to negligence of a nursing home, contact the Miami elder neglect attorneys of Gerson and Schwartz, P.A. today.

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Over the last year, our Miami personal injury lawyers have discussed the dangers associated with bicycling in Florida. Last September, 24-year-old bicyclist Jacob Landis was severely injured after being struck by a hit-and-run driver while riding his bicycle in the final leg of a cross-country cycling trip in Polk County, Florida. In October, a young couple, Rob Lemon and Hilary Michalak, died after being struck by a motorist while riding their tandem bike on the Memorial Causeway in Clearwater, Florida.

Florida a Dangerous Place for Cyclists

Bicycle

According to report by the NHTSA found that Florida’s bicyclist fatality rate consistently exceeded that of the rest of the United States and often ranked highest among the states. In 2011, Florida bicycle fatality rates were almost triple the national average, and, between 2010 and 2011, the bicycle fatality rate increased from 0.40 fatalities per 100,000 persons, to 0.63. In the same year, Florida made up only six percent of the U.S. population in 2011, but accounted for 17.4 percent of all U.S. bicycle fatalities.

Now, according to a new study published by the American Journal of Public Health, the number of traumatic brain injuries related to bicycling accidents has dramatically increased over the last several years and is expected to continue doing so.  The cause of the increase? Bike-sharing programs that have become increasingly popular across the country, including south Florida. Researchers that conducted the study poured through data on serious brain injury treatments in trauma centers located in five cities, including Miami Beach, twelve months before and after bike-sharing programs were implemented.

The study concluded that bike-sharing programs are associated with a nearly fifteen percent (15%) increase in the risk of bicycle-related head injuries, while in control cities (those without such programs) there was no increase in bicycle head injuries. The study, published in the latest issue of American Journal of Public Health, unfortunately confirms the fears of public health officials and bicycle safety advocates.

Researchers that participated in the study believe the cause of such an increase in head injuries is the fact that many bike-sharing programs don’t provide helmets to riders. According to Janessa Graves, lead author of the study, “The study basically confirmed our worries. Public bike-share initiatives are great wellness initiatives…[b]ut without providing helmets, we were concerned that we would see an increase in head injuries. And we did.” Many states have enacted helmet requirement laws for motorcycle riders, but have been reluctant to extend such mandates to bicyclists.

With ever-increasing traffic congestion and the tendency of Florida residents to ride bicycles or walk where they need to go, bicyclists are at greater risk than ever for being injured or killed in a traffic accident. If you, your family or friends have been involved an accident in which you sustained injuries, you may need legal representation to protect your right to compensation.

The Miami bicycle accident attorneys of Gerson & Schwartz, P.A. have extensive experience representing individuals who have been injured while riding a bike.  If you or someone you know has been injured in automobile accident, contact the Miami injury attorneys of Gerson & Schwartz, P.A. today.

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As our Miami injury attorneys have discussed before, although swimming can be a great way to relax on a hot summer day, it is important for people appreciate the risks associated with this activity, especially for children. These hazards have been highlighted by a recent incident in which twin toddlers drowned in a swimming pool accident at a Deerfield Beach apartment complex.

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Tragic Accident Involving Twins

Harmani and Harmony West, both just two years old, drowned in the pool of Tivoli Park, the apartment complex where they lived with their mother. According to authorities, the girls were found floating in the pool by a couple visiting from North Carolina. Efforts were made to resuscitate the children, who were immediately taken to Broward Health Medical Center, where they were pronounced dead. Preliminary investigation revealed that the pool area was gated, but the lock on the gate was broken, allowing the girls to access the pool area.

The risks associated with swimming are especially high for children, especially when they are inadequately supervised or permitted to swim without appropriate safety equipment. According to statistics published by the American Academy of Pediatrics, drowning is the second leading cause of death among children aged one to nineteen, with over a thousand such children drowning every year. The Centers for Disease Control and Prevention reports that, in 2010, 437 children between the ages of one and four died in unintentional drowning accidents, making it the leading cause of death in that age group, followed by motor vehicle accidents accounting for only 343 deaths.

Premises Liability and Swimming Pool Accidents

As this blog has discussed on several occasions, premises liability is a legal term that references a property owner’s duty to maintain their premises in a reasonably safe condition. Owners and operators of private pools and breaches are no different, and owe certain duties to guests of their property.  With regard to children, the duty of pool owners is established by statute.

Passed in 2009, Florida’s Residential Swimming Pool Safety Act requires that all outdoor swimming pools have a 4-foot fence or other barrier around the outer perimeter of the pool, with no gaps in coverage. The Act also requires that the fence be far enough away from the pool’s edge that a child who finds a way into the guarded area will not immediately fall into the pool. Finally, the Act mandates that the entrance to the pool area must open outward and be equipped with a self-closing and self-locking device that is beyond the reach of a child.

If you or someone you know has been injured as the result of the dangerous condition of a pool or lake, it is important that you discuss your situation with a knowledgeable attorney as soon as possible to determine the merit and value of your claim, as well as to preserve any favorable evidence. The Miami injury lawyers of Gerson and Schwartz, P.A. have extensive experience representing individuals who have been injured by the negligent actions or omissions of property owners.  If you have been injured on the premises of another, or know someone that has, contact the Miami premises liability attorneys of Gerson and Schwartz, P.A. today.

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Last year, this blog discussed the unfortunate death of two Brevard County teens Rachel Price and Jamaree Cook, who were killed when Price’s vehicle collided with a pickup truck being operated an intoxicated driver. In response to that incident, our Florida car accident attorneys examined a State law allowing a person that has been injured or killed in a car accident caused by an intoxicated driver to recover punitive as well as compensatory damages.

Pouring Shots

That law, codified at Section 768.72 of The Florida Statutes, states that plaintiffs in civil actions are precluded from recovering punitive damages unless there is a “reasonable showing by evidence” that provides a “reasonable basis for recovery of such damages.” This standard is more specifically delineated in Florida’s pattern jury instructions which state that punitive damages may be warranted if a jury finds by the greater weight of the evidence that the defendant’s conduct that caused the injury to the plaintiff was:

  1. Gross and flagrant as to show a reckless disregard of human life or of the safety of persons;
  2. Showed such an entire lack of care that the defendant must have been consciously indifferent to the consequences;
  3. Showed an entire lack of care that the defendant must have wantonly or recklessly disregarded the safety and welfare of the public; and
  4. Showed such reckless indifference to the rights of others as to be equivalent to an intentional violation of those rights.

Further, the Florida Supreme Court has held thatpunitive damages are appropriate in cases where “negligence is coupled with intoxication.” Ingram v. Pettit (1976), 340 So. 2d 922.

Last month, an Okeechobee, Florida jury went a little further, awarding a Sanford man over $11 million in damages in a civil lawsuit against the Okeechobee Eagles Aerie #4137. In Wilde v. Okeechobee Aerie 4137, the plaintiff alleged that the Eagles’ bartenders “grossly overserved” a 72-year-old patron, to the point that he was severely intoxicated.

The plaintiff further alleged that he was permanently disabled after the patron left the club in his truck, and ended up crashing into the motorcyclist. By the time a blood draw was conducted on the driver, his blood-alcohol level measured 0.22 percent, nearly three times the legal limit. The driver was not insured and had no assets, so the motorcyclist sued the Eagle’s club, alleging that the bartenders were negligent in serving the patron so much alcohol.

Florida Statute 768.125 states that a person who either unlawfully sells or furnishes alcohol to a minor who later crashes a car and hurts someone can be held liable. However, this liability may be extended to any person or entity that continues to serve of-age patrons despite knowledge that the person is habitually addicted to alcohol.

The motor vehicle accident attorneys of Gerson and Schwartz, P.A. have extensive experience representing individuals who have been injured by negligent or reckless drivers. If you or someone you know has been injured in automobile accident, contact the Florida car accident attorneys of Gerson and Schwartz, P.A. today.

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