Gainesville Child Injury Lawyers Survive Dismissal

Child Injury
Child Injury

Massey & Duffy, Gainesville injury attorneys, have prevailed on a key Motion to Dismiss filed by two Defendants. In that case, our lawyers represent a child who drank a hazardous chemical. The Defendants argued they owed no duty to our child client (and his mother). They were wrong, as proven by the following legal argument:

In United States v. Stevens, 994 So.2d 1062, 1067 (Fla.2008), the Florida Supreme Court held that the inability to measure the extent of the risk involved – by itself – merits the Plaintiffs with an opportunity to go forward. The Court stated as follows:

Given the allegations of negligent security of the ultrahazardous material and the virtual impossibility of potential victims to protect themselves once this substance is at large, this is one of those cases we contemplated in McCain, where the risk of injury is great and the corresponding duty of the lab is heightened. In a very real sense, it is this inability to measure the extent of this risk that merits giving the claimants an opportunity to go forward. Of course, the outcome of this case and the law it develops will be determined by the facts of the case as established in the trial court.

(e.s.), Id. at 1070. Thus, the Court in Stevens held that a laboratory owed a duty of reasonable care to members of the general public to avoid an unauthorized interception and dissemination of bio-hazardous materials.

Although Stevens involved ultrahazardous material, the First District in Herndon v. Shands Teaching Hospital made it clear that the holding also applies to merely hazardous material and is not limited to ultrahazardous material:

Stevens merely applied the principles enunciated in McCain to a defendant’s negligent control of anthrax, a much more hazardous substance than the drugs involved here. However, there is nothing in Stevens or McCain that supports a finding of no duty by Appellee to Michelle Herndon, as a matter of law, for a risk created by negligent control of admittedly dangerous drugs. Stevens was a recognition of a duty under McCain and not a limitation of that duty to the supervision of hazardous drugs having the same hazardous level of anthrax (as concluded by the trial judge).

Herndon v. Shands Teaching Hospital, 23 So.3d 802, 804 (Fla. 1st DCA 2009) (e.s.). The 1st DCA in Herndon further held as follows:

The drugs used to murder Michelle Herndon were dangerous drugs that require a doctor’s prescription, and Appellee was entrusted with their proper use. Appellee’s failure to ensure their proper use created a ‘zone of risk,’ as it exposed the general public to a risk that Appellee could have avoided by taking reasonable measures to prevent the drugs’ theft and removal without a doctor’s authorization.

Id. at 803-804 (e.s.). Thus, cases involving hazardous materials, drugs or chemicals involve greater risks to society, and it is “this inability to measure the extent of this risk that merits giving the claimants an opportunity to go forward.” Stevens, 994 So.2d at 1070. The Hazardous Material thus fall within the rationale of these cases.

Recently, in Dorsey v. Reider, No. SC12-2197 (March 27, 2014), the Florida Supreme Court reversed a district court’s determination that it must “evaluate whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that `in the field of human experience’ the same type of result may be expected again.” The Court stated thatThis interpretation of our McCain decision and the proper test to be applied when determining if the defendant’s conduct has created a broad zone of foreseeable risk is incorrect.Instead, “[a]s to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.”

Should your child also suffer a terrible personal injury, our lawyers can help. We have experience with these child injury claims and are averrable to assist. Please call our Gainesville injury attorneys ASAP.


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