Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

There is a story in the news about  Joan Holzschuh, a woman from Palm Coast, Florida who was killed in a crash when the tour bus she was riding in crashed into the back of a stopped vehicle on the side of the road in Egypt.   She went to Bethlehem for Christmas.   News stories on the TV discussed the facts and seem to indicate the accident happened before dawn while the Bus was on the way to a popular tourist attraction.  Talk about being in the wrong place at the wrong time.

Was the driver of the Bus at fault?  How about the driver of the parked vehicle who stopped on the side of the road?  Do they have to carry insurance?  Does Egypt have laws which make the Tour Operator liable for the negligence of its Drivers? If she bought her ticket in the State of Florida does Contract law in Florida apply?  

The decedent was from Palm Coast, and the accident happened in Egypt.  Does the law of Florida, or the law of Egypt apply?  There is an arcane little known field of law called "Conflicts of Laws." This specialty is designed to answer questions exactly like the ones in this case.

 I represented the mother of a young sailor who was killed when he was a passenger of  a car which went  over a cliff  near Naples, Italy.  I filed suit in Volusia County, Florida and was able to get a nice settlement for the mother of the young Navy sailor who was killed.

Knowing "Conflict of Law" rules helped me avoid Italian rules and regulations and get  a good result. When a complicated accident case involving foreign laws is being considered, its good to get someone who has experience in Conflicts of Law cases.

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Over the last few years Parents have witnessed lots of examples on TV of frightening escalations in brutal attacks on their children by other children. As texting has become more popular, a new word “cyber-bullying” has been coined. Dozens of websites devoted to the prevention of bullying have popped up. It has been clear for years that bullying is a serious problem at schools, with three-quarters of junior high or middle high school principals admitting that bullying or harassment is a “serious problem” at their school.

Bullying is destructive to the victim, the bully and the witnesses. After the 1999 attack at Columbine High School,   Colorado launched a multi million dollar statewide study to learn more about this ugly social problem and how to stop it. It is thought that the two perpetrators had long been the victims of bullying at Columbine. Since then, school security nationwide has changed and a 2008 study about bullying is online and can be seen by Googling “Colorado Trust.” Highlights of their findings are:

·      In schools where anti-bullying action has been taken by timely fair intervention of students and teachers with bullies, there entire school is blessed with higher academic achievement!

·      The effects of bullying can last a lifetime.

·      Victims have lower self esteem, inability to connect socially and an increased chance of academic failure.

·      Bullies often end up having criminal problems in later life.

In 2008 the Florida legislature adopted a new Anti Bullying Law. Important provisions of the laws make sure the parents of the victim are regularly told what steps are being taken to protect the victim, and that the bully is referred to counseling. 

The Flagler County School Board has policies against bullying, including cyber bullying. Its website invites anyone to report bullying when it is witnessed. A student who violates the anti bullying policies at school can be disciplined which may include expulsion from school. A student is considered at school even when using school transportation (school bus). If a student is being bullied or witnesses bullying, he should always tell an adult at the school.

A school which fails to provide reasonable supervision from dangers like bullying opens itself up to lawsuits. If the school knows that certain kids are bullies and ignores the problems they are causing, it is not only bad for the victims but indirectly everyone in the school can suffer academically.   Parents have to send their kids to school, or educate them at home. If the school does not provide a safe education and your child is victimized stand up for them. That’s your job. Kids feel all alone when they are bullied, and do not want to report being bullied because it may hurt them socially. It will hurt them more if they are not protected. 

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 The start of a new school year means the start of football season, and a whole myriad of other school sponsored interscholastic sports for both boys and girls, including baseball, cheerleading, Lacrosse, soccer, tennis, swimming and diving, weightlifting and golf. All of these activities are subject to various risks and it is a privilege to participate in them. 

To gain the right to play in such activities the Florida High School Athletic Association (FHSAA) has a Consent and Release from Liability Certificate which must be signed by both the student and his or her parent or guardian. The Release is in my opinion “Bullet Proof” meaning that it is valid and will bar a suit by the child or his parent for injuries and any medical bills sustained during a sponsored event. The form even bars suit if death occurs so it is a very serious thing which needs to be planned and discussed. Too many parental choices come up without adequate time to think and plan ahead. The release does not bar a products liability suit for defective and unsafe equipment (like a football helmet which enhances injury).

Courts condone the use of Releases especially for school and church related functions, known in the legal business as Exculpatory Releases. This means that if you sign the FHSAA Consent and Release form and your child is injured neither the school, its officials or other schools will have any liability for injuries, accidental or otherwise.

Heatstroke is a major issue in August football sessions as the kids start training again. Heatstroke is the third leading cause of death among athletes in the United States. Thirty-nine football players -- 29 in high school -- have died from heat stroke since 1995, according to data compiled by the National Center for Catastrophic Injury Research at the University of North Carolina.  New technology which monitors the body during exercise may be helpful in stopping heatstrokes. The fact of the matter is that a good trainer will know the early signs of heatstroke and take steps necessary to protect the athlete. If he does not have the necessary knowledge serious injury or death can occur and there will be no right to sue for the trainer’s or coaches’ negligence.

The FHSAA Consent and Release form does not require that there is insurance but asks politely if  there is some insurance plan available. Given the fact that medical and hospital bills are so costly, I recommend parents make sure their kids have insurance for injuries during school sponsored events.   

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 A recent case in Central Florida involving Cell phone use tells us that the sequence of calls following an emergency like a car accident is very important.  It is human nature to want to report an accident to our loved ones to let them know you have been injured, and to get help.  But who you call first may create a very important clue about why the accident happened.  And the clue may be misleading.

In Hernandez v Felciano,  the plaintiff was rear ended, and called 911.  His detailed cell records were obtained and put into evidence at trial. ( A cell company can on request provide the details)  The records showed that about the time of the accident, he was on the cell with his family.  So the jury was faced with the chicken and egg problem:  which came first, the accident or the  call to his family? Was he driving erratically because he was on the phone? Based on this skimpy evidence, the jury concluded in Hernandez the plaintiff was at fault and caused himself to be rear ended.

The problem with cell phones is that they can do good: report an accident; or bad: cause an accident.

 My recommendations?

• Make sure the first call is to 911 to report the accident.  911 calls are recorded and can be obtained for later with a Public records request for use at trial if necessary.  
• However some agencies erase the calls after 30 days so don't dither or dally!  
• The time of the call on the 911 call can be compared to your cell phone bill and prove the first call was to report the accident, and then a call was made to your loved ones.
• Get a detailed copy of your cell phone bill and keep it for later.

A "Public records" request under the statute can be made for a copy of the call.  I believe a simple email request to the correct call center should be enough to get the relevant call, and it can be mailed to you in a MP3 format.  There may be a slight charge, so ask before your send your email.

You still have to know which Call center to send the request to, and that can be found by a simple Google search for "911 Call Centers."   The local one in Flagler County,  Florida where I practice has some good info on their website. The center's website says the caller's phone  location cannot be determined from a cell phone call, and you will need to verbally tell them your exact location so they can send help to you.  If the accident happens on the Interstate getting the exact address is a little more of a problem.  Many popular Cell phones now have GPS positioning information which most call centers can use to pinpoint a location. To track a person with a cell phone the cell user must have 

• the right kind of cell phone;
• be connected to the right network, and
• have the right service

I use an iphone and know I can set it up to allow its location to be found remotely.  It must be done beforehand it cannot be found with the GPS function.  

So, here is a lot of good info regarding cell phones and using them after an accident and I hope it helps save a life! Even if not lifesaving, it may help you avoid making a legal mistake by failing to call 911 first.  If you cannot call because you or your phone have been disabled or lost, may I recommend you ask a Good Samaritan/passerby to call 911 first?  And then call your loved ones for you?

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The decision to let your child finally drive the family car is one requiring the ultimate exercise of good parental judgment. A parent must honestly weigh the maturity of their child, their need for independent transportation, the cost of insurance, a car, and the dangers and potential risks the child may face when you, the parent, are not there to provide continuous feedback and safe driving pointers.

Florida laws require a “responsible adult” to assume legal responsibility for the child’s negligent or willful misconduct while driving on a highway. This law is enforced when the under 18 child applies for a driver’s license by getting a “responsible adult” (usually a parent) to sign the application with them. F.S. 316.09 says that the child’s conduct is “imputed” to the responsible adult. In addition, the child’s driver’s license may be suspended if the under 18 child drops out of school. F.S. 322.091

Oprah’s website about the “No Phone Zone” is an excellent and fun place to help start a conversation with your child about the dangers of texting or talking on the cell phone while driving. I recommend you and your child together take a look at http://www.oprah.com/packages/no-phone-zone.html. It has some really fun quizzes to test your knowledge about texting or talking on a cell phone. It gives really good examples your child can identify with about the very real dangers of distracted driving.

It only takes a second or two to change a life forever. I took the quiz and only got 2 out of 5 questions right!

For a discussion explaining Texting and Negligence, look at my website at http://www.palmcoastinjurylaw.com/2010/02/articles/understanding-the-legal-proces/understanding-texting-and-negligence/

A parent who signs the Application with their child should obviously get insurance coverage for them. In my opinion it is better to add a child  on the family auto insurance policy rather than getting separate minimum coverage policy. Buying a car and titling it only in their name does not protect the parent from liability under FS 322.09.

In Florida a huge percent of drivers on our roads HAVE ABSOLUTELY NO INSURANCE. That means if an uninsured motorist runs a light and crashes into you or your child, no one will be able to pay the medical bills unless you have prudently bought a nice policy with “Uninsured or Underinsured” motorists coverage. Think of UM as standby insurance to protect the most important things in your life: Your family members. I can tell you from experience in handling cases for Flagler county clients, rarely do they get out of the Emergency room with less than $20,000 in hospital and doctors bills. The high cost of medical care is a reality. Thus, the need for as big a policy of Uninsured coverage as your budget will permit.

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Having had the privilege of representing Bikers (and going to trial for many of  them) who were seriously injured while riding their motorcycles, there are a couple of things that all motorists need to be reminded about.  First, motorcycles are not as easy to see as larger vehicles and second, injuries involving them, are always extremely serious, and include brain damages due to head injuries, death, paralysis and amputations.  A minor case involves severe road burns and/or scarring. I once got a call from an Alabama man whose beautiful young daughter lost a leg while on the back of her friend's motorcycle.  She had promised to stay off his bike when she was allowed to come to Daytona...Because of the severity of injuries, most cases settle with little legal effort for the "policy limits."  This means the at fault driver had so little insurance it was not  even a fight to get.  Bikers ought to consider getting Uninsured Motorists coverage for as large a limit as possible if they continue to ride.

There are two major accident types which cause these injuries: 

• Drivers who make a sudden left turn into and across the path of the Biker, and
• drivers who rear end the bikers.  Rarely do you hear of a biker who turned into the path of an oncoming vehicle.  My biker friends are sober "as a Judge" when going for a ride, have gone to motorcycle school and leave plenty of room to maneuver when on the road.

In my experience, the biggest challenge to getting a fair trial for a Biker is during Jury selection.  In my opinion  jurors are still of the opinion that Bikers are devil may care, reckless and thrill seekers, even willing to take life and limb risks to ride their bikes.  People who own motorcycles are usually knocked off by the defense using their peremptory challenges.  To prejudiced or ignorant jurors hearing a motorcycle injury case, it makes no difference that the bikers are on the way to work at 7:00  in the morning, or run over from behind by a drunk driver.

We live in a part of Florida where Bike week is celebrated twice a year, once in March and one in October.  The number of Bikers who plan annual trips to attend Daytona is well  over 100,000.  They spend hundreds of millions of dollars locally and deserve our respect.  Many are professional doctors, lawyers, accountants, and own and operate successful businesses out of state.  It galls me to see ads by attorneys who patronize bikers and advertise proudly picture their motorcycles as a means to say "We are Bikers too.  Hire us."   They remind me of the Kodiak bears in Alaska trying to snare salmon during the annual salmon runs.

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As I wrote in an earlier blog, there are certain legal presumptions which arise when the rear car runs into a lead car.  But those "presumptions" sometimes evaporate into thin air if the rear driver has a good reason to explain the collision.  This blog explains how that disappearing presumption works.

In the case of Klipper v GEICO,  the evidence came out at  trial that  the rear driver had a good reason for rear ending the lead car: the lead car had become disabled on the interstate late at night, and the driver of the lead car had not 

• attempted to move it out of the way onto a nearby median even though there was time,
• turned on its flashers,
• raised the hood, or
• otherwise signalled oncoming traffic

So  what happened to the presumption of negligence?  The trial court should have said nothing about it and just let the jury decide who was at fault.  Instead, the judge instructed the jury that the rear driver had the burden to prove she was not negligent.  This was wrong, and resulted in a reversal.  Once evidence is produced which tends to show the real fact is not as presumed, the presumption dissipates.

Why:  Because once evidence was presented giving some good reasons why the jury could reasonably find the lead driver was also negligent, the presumption was "rebutted."  It vanished from the case and was no more than an inference which the court should not have commented on either way.  In fact, both drivers had something to point their fingers at.

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 I will occasionally discuss the law of Evidence on some  things that often create major trial problems for the plaintiffs.  A mistrial always favors the defense because they get  a postponement.  Today's discussion is based on a rule of Evidence.  Sometimes rules of law lead to unusual and bizarre results.  This one reminds me of a Rule which led Mr. Bumble,  a Charles Dicken's character in Oliver Twist  to declare:  "If the law supposes that -- then the law is a Ass."   Bumble was talking about the rule of law in Merry Olde England  which assumed a man controlled, and was therefore responsible for his wife's actions.

During trials involving traffic crashes there is one thing which is so explosive that the mere mention of  it by either side in the presence of the jury will cause a mistrial.   When a traffic accident case goes to trial, the jury always wants to know and expects someone to put on evidence :  who got the "TICKET?"

In Florida good  trial lawyers do not make a proffer of any evidence on Traffic tickets. They intentionally do not say anything about a Ticket being issued  during voir dire or opening statements and their witnesses are taught not  to mention Tickets in front of the jury. When the rule gets violated,  the judge should stop the trial and a new jury should be selected.  Requesting a cautionary instruction to the jury is not a good idea and may waive the error.  Check this out in a recent case on this point: White v Consolidated Freightways of Delaware, 766 So. 2d 1228 (Fla. 1st DCA 2000).  Here is an excerpt from the appellate court decision which revealed a very subtle and reversible defense argument.  The driver of an 18 wheeler, Mr. Dickson,  rear ended a bunch of cars.  The FHP officer did not give him a ticket.  Here is an excerpt from the improper Defense opening statement  which resulted in a reversal and a new trial:

"You'll also hear the testimony of Investigating Highway Patrolman C.C. Barclay who looked at the physical evidence, he talked to everyone who was there; I think the evidence will show that no one claimed that Mr. Dickson had anything to do with this accident at the scene of the accident. 

. . . .

After he was there for a while and had told the police officer what he saw, then he was allowed to proceed with his trip, and Mr. Dickson will tell you that the first time he heard that anybody was claiming that he had anything to do with this accident was long after, months after it occurred."

(emphasis supplied)

It is not possible to tell if this was an honest oversight of the T-word rule by Defense counsel or a gamble that  a motion for mistrial would not be made. 

Lawyers know just like everyone else that a Ticket is  symbolic of fault.  If admitted it would tell the jury who in the opinion of the traffic cop caused the crash.  Sometimes the cop witnessed the crash, but more likely got there a few minutes later and after asking around either decided to issue a  ticket or not.   His official act is seen as an objective third party point of view gathered promptly at the scene from witnesses whose recall is still fresh.  Also, the court will instruct the jury that a violation of a traffic statute is possible  evidence of negligence. 

I had the misfortune of representing a client on a motorcycle who was seriously injured by an oncoming car.  After the trial I got an irate call from the foreman: How come you did not put on evidence that the Defendant got a Ticket?  I looked it up and you did not put on any evidence.  If you had, we would have returned our verdict for your client."  I was crushed, and so was he. I told him I could not legally put on evidence and he had based his verdict on speculation, since there was no proof of a ticket, and held the Defendant Not Guilty.

Model jury instructions do not mention traffic tickets.  In fairly obtuse wording the Florida Model court instruction 2.1 merely says to the jury they should not "speculate on any matters outside the evidence."  How does a juror know what that means?  What does it mean?  To a layman, a Ticket is inside the evidence and so it is ok to want information about it, and if it is not part of the trial, they think about it. I suggest the model instruction is defective because it is vague, and I have tried cases where a mistrial occurred because someone mentioned a Ticket. How many more were verdicts entered based on speculation?  Who knows?

Generally the failure to testify in a civil action results in an inference that the testimony would have been unfavorable.  There is a  limitation on that rule that the “unfavorable inference which may be drawn from the failure of a party to testify is not warranted when there has been a sufficient explanation for such absence or failure to testify."  Plaintiffs are caught in a no man's land about this because they cannot explain  why they have not put on any evidence about the ticket.

Rule Regulating Florida Bar 4-3.4(e) prohibits lawyers from arguing facts that are not in evidence. Rule 4-3.5(a)  prohibits lawyers from seeking to influence jurors except as permitted by law or the rules of court.

Sometimes it is a necessary to request a special instruction when the Model jury instructions are vague or simply do not cover the issue.  A special instruction was requested (and then abandoned) in one case where a citation issue came up at trial here.  

Many of the standard instructions were crafted before jurors were allowed to read instructions  and the law was less complicated.   There is a great discussion on using special instructions in Ryder TRS, Inc.  v  Hirsch, 900 So. 2d 608 (Fla. 4th DCA  2005).  So long as they do not confuse or mislead the jury, the instruction is within the discretion of the trial court.  Trouble is many Judges don't like to give special instructions even if they are not confusing or misleading.I think the time has come in Florida to request a new special jury instruction in cases where a jury might reasonably expect evidence on the issue of whether a ticket has been issued.  Here is my stab at a special jury instruction in these type of cases:

"You have been instructed not to speculate on any matters "outside the evidence."  That includes speculation about whether a traffic ticket or citation was or was not issued to any party in this case."

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During the last two weeks here in Flagler county the story of a horrific truck crash, totally avoidable unfolded before a local jury.  The jury  listened spellbound to the story of  loving couple who moved here to live out their golden years together.  That came to a sudden end in the blink of an eye when an overworked, angry, truck driver went barreling through a stop sign at 55 m.p.h and obliterated their van. She was killed and he was airlifted by helicopter to a nearby hospital.  Sadly he never even got to say goodby it happened so fast. As the Plaintiff said, "It is hard to beleive your life can change so fast."

Their case was reported by Frank Fernandez of the Daytona News-Journal.  On November 11, 2009 the jury heard the opinion of an almost unbelievable "expert" accident reconstructionist from south Florida.  It was his opinion that the truck driver was a "victim" because Flagler county had paved over a few rumble strips.  He felt the fact that there were several signs warning of the dangerous intersection was not good enough.  Mr. Fernandez wrote about it and there were numerous comments posted before final arguments started today. This type of defense argument had to inflame the jury.  In my opinion it should result in a higher than usual damages award. It was very risky defense  to try and pull over a quick one on the jury.

There were other  aggravating circumstances:

• the driver was on the road in excess of the maximum number of allowable hours,
• the sod company for whom he worked had no idea of his lousy driving or employment record, because they did not pay $10 to get it,
• he refused to cooperate with a mandatory DOT drug test required because of the fatality, 
• the defendants refused to accept responsibility,
• the driver was overworked and tired, and
• His company had no system to monitor his hours so did not know whether he was driving too much.

More than 20 comments by readers who followed the trial in Fernandez's column  were available online first thing this morning. The overwhelming majority thought the accident reconstruction expert was a joke and implored the jury to ignore his testimony.  I don't know whether the Plaintiff's very fine trial lawyers Steve Pajcic  and Tad Griffin of Jacksonville were aware of their comments when they prepared for final summation.  Mr. Pajcic made the final argument.  He asked for almost $10 million in damages, which was in his opinion fair given all the circumstances.  I agree and hope the jury agreed with him too. I thought it was worth more.  There was a lot of evidence to support the request.

Knowing how much to ask the Jury for  is a delicate, tough and lonely decision for any plaintiff's trial lawyer, no matter how skilled,  and experienced he is.   If he asks for too little, the jury award will not be adequate.  Too much and the jury will be insulted.  The venue should and must be considered too.  In a place like Flagler county, jurors may feel a lawyer is asking for too much, whereas under the same facts in south Florida, another jury may easily feel at home with a large damage award. 

 The "comments" from readers of Mr. Fernandez column on this case might be a good indicator of what the jury will do with the damage award in this case.  We'll know the results soon.

*******

P.S.  Late in the day on November 12, 2009 the Jury returned a Verdict for $5.1 million according to the latest column by Frank Fernandez.

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A woman whose native tongue is Spanish came into see me today.  Her broken English is much better than my non- existent Spanish so there was an interesting challenge to overcome during our initial conference.  No one else in my office is fluent in Spanish.  She was a walk in client and had not called  for an appointment.  I did not want to  disappoint her by postponing the new client conference, and thought I'd try out some interesting new technology available on Google.

In her broken English I learned she had been involved in a recent car accident.  Naturally I needed to get some basic information.  I learned she was in a two car accident, on a local 4 lane parkway.  Fortunately I had written a recent post about her type of accident, and so I was able to send my post to translate.google.com where it was instantly translated into Spanish for her.  I also used the translate function to ask some questions about her medical care, her diagnosis and current symptoms.  After a few minutes we decided a more lengthy conference would be needed next week. Google can also be used to translate my client intake documents. 

The Florida bar requires every lawyer who represents a client on a contingency fee basis to provide the new client with a Statement of Clients Rights, before signing a contingency fee contract.  I decided to give her a copy in Spanish, and to also translate my fee contract too, so she has a better understanding of her rights and obligations.

Legal concepts like negligence,  the closing speed between two cars in a collision, the amount of property damages, and the adverse consequences of filing a suit for damages were also discussed.  I relied heavily on the translate.google.com program as we sat in my office.  I typed my questions into google, pushed the "translate" button and she read the translation from  my desktop. After reading the question in Spanish, she explained the best she could and I typed followup questions as needed.  We both thought the technology was fun to use, and were more comfortable with each other for having used it.

Even when a person has no language barrier Legal concepts can be difficult to understand.  It is the lawyer's job to make a reasonable effort to assure the client understands the law. 

I tell my clients I do not practice Veterinary Law:  I represent people, not puppy dogs or kitty cats.  They want and need to be involved in legal decisions affecting them. I have an ethical obligation to try to make sure they understand my advice.

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Rear end collisions have been around since cars were invented. (Funny, but I have never seen a pelican in formation fly into another one: Why not?)  I was asked recently by a client whether she had any legal rights when she rear ended the car in front of her. This raises the legal issue of what happens when a driver may only  be partly at fault (negligent). 

I learned  the lead car was going 50 mph in broad daylight, and accelerating on a three lane entrance ramp to the interstate, when it suddenly and abruptly stopped for no apparent reason.  There was no stop sign, traffic signal, road construction,  sinkhole, no other cars ahead of them merging into their lane, no road debris, no pedestrians or animals on the ramp, and the lead car  just suddenly stopped!!!  My client was not expecting that. She tried to stop but could not.  She crashed into the back of the lead car. 

• Florida has the "Gotcha" rule which applies to rear end collisions like this one.  The rule comes up rarely. It means that the rebuttable presumption of negligence which usually applies when the rear car hits a lead car, disappears when the lead driver makes a sudden, abrupt stop at a time and place where such a stop would be totally unexpected.  The presumption is said to have been "rebutted." (The law of "presumptions" is  discussed in this blog. )
• In such cases, the rear driver, acting as a reasonably prudent person driving a car or truck, has a good reason to not expect the lead car to make a sudden stop.  So, if the rear car driver gets sued, the jury can consider all of the circumstance, and conclude she was only partly at fault or maybe entirely at fault, but it is not a foregone conclusion that the rear driver was the only one at fault.  This makes insurance companies for the rear drivers happy.
• The lead driver is not entitled to a court ordered directed verdict, and the judge does not tell a  jury  they MUST find the rear driver to be negligent (at fault.)
• The rear driver, if the Jury so finds, may be entitled to recover her damages if the Jury believes she was hurt due to the negligence of the lead driver. IN most cases the lead driver will sue the rear end driver.  The rear end driver will report the case to their insurance company which will appoint a Defense attorney to handle the defense. However, the rear driver must file a mandatory counter-claim or it will be barred.  The insurance company defense attorney should advise the rear ending driver to consider whether to make such a claim so their rights to make a claim will not be waived.  Another attorney, who can handle the personal injury claim as a counter-plaintiff should be consulted by the rear end driver.
• Gotcha stops are rare.  They may be a result of road rage situations or other strange driving behavior.  It's almost like the lead driver invites the rear end crash. Sudden stops in "stop and go" traffic are not "Gotcha" stops because they are expected, since everyone else is doing it too.  Typically they come up when the lead car at a light starts up when the light turns green, then goes a few feet and stops suddenly even though there is no reason to.  This  often results in a chain of rear end collisions. 

One would think that the combination of a sudden stop, and the ensuing chain of rear end collisions would result in a finding that the first lead driver was presumed to be negligent , but the courts have  so far refused to hold that way.

Florida also has a "comparative" negligence law, which combined with the "Gotcha" rule allows a jury to apportion fault in all negligence cases, including rear end cases like this one.  Bottom line: just because she was the rear end driver and crashed into the lead driver, doesn't mean she is 100% at fault with no right of recovery for her own damages.  A jury could reasobably conclude the lead driver was also to some degree negligent for the sudden, unexpected abrupt stop at a time and place where no one would reasonably stop.

In my experience the rear driver always says the lead driver was making a "sudden" stop or a "sudden" left turn.  Why? Because the rear drivers  have been day dreaming, distracted, either on a cell-phone or worse, texting.  When they look back to the road they are always startled.  To them it is sudden,  Duh! If they were watching carefully they would have had time to react.

And what if the rear driver, was herself rear ended? In the leading case in Florida on rear end collsions and the "Gotcha Rule" the supreme court clearly recognized that motorists should be on the look out for accidents ahead.  Just because a driver ahead has negligently failed to stop and was in an accident, does not mean their following driver has a built in excuse because of their sudden stop.

  In other words, the negligent driver who is himself rear-ended may have a valid case when he gets rear ended. It almost sounds like he is getting rewarded for bad behavior.  But that is for the jury to decide.

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