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Potential Plaintiffs

The doctrine of strict liability applies “when harm befalls a foreseeable bystander who comes within range of the danger.” 1 Privity of contract is no longer a requirement, as it was before Florida adopted strict liability, so not only buyers, but any foreseeable user or bystander is a proper plaintiff if they have been injured by a defective product.

Thus, a plaintiff in a products liability case can be any injured party in the “range of danger” in a strict liability case or in the “zone of risk” in a negligence case. 2 From this broad list of potential plaintiffs, it is necessary to select who will be the actual plaintiffs in your case. As is the case with any personal injury case, it is not always beneficial to your client(s) to allow all potential plaintiffs to join your case. For example, if there are potential plaintiffs whose interests are not aligned with your clients’ interests, or who have some quality likely to taint the opinion of the jury against all the plaintiffs, you may choose to file your clients’ case without joining those parties, allowing them to file their own lawsuits. In most instances, one or more defendants will move to have the cases of all potential plaintiffs consolidated. At that point, you should make a strong effort to limit consolidation of the cases to the discovery phase based on the unfair prejudice to your client that would result from having all of the plaintiffs’ claims before one jury.

In an action for personal injuries, the potential plaintiffs will include persons actually injured as well as family members who may have loss of consortium claims. In an action for wrongful death, the Florida Wrongful Death Act permits recovery from parties who would not necessarily be entitled to consortium damages in a personal injury case. Under the statute, surviving spouses, minor children, adult children, parents or minor children, parents of adult children, persons wholly dependent on the decedent and the decedent’s estate are potential plaintiffs (assuming they meet the conditions of the statute). 3

Unlike a consortium claim which requires there to be a relationship between spouses that is harmed by a personal injury, the Florida Wrongful Death Act allows any spouse to recover for “mental pain and suffering” due to the death of a spouse, regardless of whether the spouses enjoy a marital relationship. Thus, for example, an estranged spouse is a proper plaintiff under the Act. Should you find yourself in a situation in which you represent a minor child in a wrongful death case and, an estranged spouse has joined the case as a plaintiff, you should establish a special needs trust for your minor client and make sure the jury knows any award for the child will flow into the trust for use in accordance with the purposes of the trust and not be squandered by the estranged spouse. The use of a special needs trust is also a good idea when the minor child is under the care of other persons who could be in a position to misuse funds intended by a jury to be used for specific needs of the child).

[1] West v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla. 1976)
[2] McCain v. Florida Power Corp., 593 So.2d 1067 (Fla. 1992).
[3] Florida Statutes § 768.21(1)-(4).

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Product Liability Lawyer - Newsome Melton

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