Gainesville Personal Injury, Divorce and Alimony Attorney

The Often Overlooked Dangers of All-Terrain Vehicles (ATVs)

The Gainesville Attorneys of the Law Office of Alba & Straile, PLLC comment on the dangers of all-terrain vehicles, in light of the alarming number of ATV accidents that occur each year throughout the state. According to the Consumer Protection Safety Commission’s annual report, which compiled data over a 30-year period, Florida has consistently ranked amongst the top ten states having the highest rate of ATV-related fatalities in the nation, when considering incidents occurring on all roadway types. While Florida does rank lower in ATV rider deaths on public roads, this is largely due to the fact that ATV use in our state is much more common in rural areas.

Below is a map of all ATV crashes in North central Florida from January 2012 through September 2013:

Unlike other types of fatal crashes, which are more likely to involve multiple-vehicle collisions, the majority of fatal all-terrain vehicle accidents involve a single vehicle—the ATV. According to a 2013 status report by the Insurance Institute for Highway Safety, three-quarters of fatal ATV crashes between 2007 and 2011 reported a single-vehicle incident, while less than half of fatal motorcycle accidents were single-vehicle crashes.

Another distinguishing aspect of ATV accidents, in comparison to other crashes, is the tendency of all-terrain vehicles to roll. As provided in the IIHS report referenced above, close to three-fifths of single-vehicle fatal ATV crashes involved the ATV rolling over. Further, when considering all types of ATV crashes, whether single or multiple vehicle, fatal and non-fatal accidents, as well as reported and unreported, studies have shown that as many as three-quarters of all ATV accidents occur as a result of the vehicle either tipping or overturning.

ATV rollovers are particularly dangerous due to their propensity to cause catastrophic injury. One of the most common causes of death in ATV-overturn accidents is due the vehicle landing on top of the victim. In some accidents, a driver or passenger may be ejected from the ATV as it is overturning, and the vehicle subsequently lands on a victim. In other crashes, one or more of the occupants may roll with the ATV, thereby crushing and/or pinning the victim.

It is important for drivers to understand just how easy it can be for an ATV to overturn. Unfortunately, many drivers operate ATVs under the misconception that ATV rollovers can be avoided by refraining from high-speed driving and/or reckless behavior. However, in actuality, even a small incline can cause an ATV to roll, regardless of the driver’s rate of speed.

For example, earlier this month, a 71-year-old man was killed in an Alachua County ATV accident as he was performing volunteer duties in San Felasco Preserve. As reported by the Gainesville Sun, “[…] it appears that Rossley allowed the ATV to veer off the normal travel path onto the slightly raised right edge of “Main Road,” causing the ATV to overturn to the left 1 1/4 times, where the ATV came to rest atop Rossley, pinning him underneath.” This tragic scenario demonstrates just how easy it is for an ATV to overturn, and cause death, even in cases, as it appears here, where the victim was neither speeding nor engaging in reckless activity.

At a very minimum, drivers should be aware of six key safety tips, as provided by AtvSafety.gov:

    • Get Trained
    • Wear a Helmet
    • No children on adult ATVs
    • Don’t ride tandem
    • Don’t’ ride on pavement
    • Don’t ride under the influence

Knowing the features as well as deficiencies in safety of the ATV being used can also aide in the prevention of accident, injury, or death. Riders should be aware of the risk factors associated with their specific type of ATV, as well as monitor safety recalls, and when feasible, register the product with the manufacturer and/or distributor.

The Gainesville Attorneys of the Law Office of Alba & Straile, PLLC urge the operators of ATVs, four-wheelers, and other recreational vehicles, to practice safe and responsible riding. If you were injured, or a loved one was killed as a result of an ATV accident, our experienced personal injury attorney team can evaluate you matter and explain your legal rights, as well as any entitlement to financial compensation.

Changing Family Law – Florida Judge Overturns Ban on Gay Marriage

On July 17, 2014 Circuit Judge Luis M. Garcia overturned the ban on Gay Marriage in Florida. The case was in the 16th Circuit which only encompasses Monroe County Florida. Therefore, this decision is not binding on any other trial court. In addition it is not binding on any other County Clerk.

A Circuit Judge’s orders are only binding on Courts and Clerks within its own circuit. This means that the Alachua and Marion County Clerks are free to ignore the ruling. Furthermore, the State has filed a Notice of Appeal. Therefore it is possible that enforcement of the Court’s order will be stayed or paused pending the appeal. As of the typing of this blog, the Clerk’s Office website did not have docketed a motion to stay the order pending the outcome of an appeal.

For now all of my colleagues and I are anxiously awaiting the anticipated increase in legal fees and legal work for divorce law that will be filed in the years to come. If this ruling stands, then there will be a drain on the supply of legal services which means the price to the consumer will increase.

Fill out the form, click or call now to hire a lawyer to defend you or a loved one.

Gainesville (352) 371-9141

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Read the opinion here

Swimming Pool Safety: Preventing Child Drowning Deaths

The Personal Injury Attorneys of the Law Office of Alba & Straile, PLLC take note of the astounding rate of drowning deaths involving children that occur each year throughout the state and how they can be prevented. According to FloridaHealth.gov, Florida has the highest drowning death rate in the nation amongst children ages five or younger. On average, approximately three quarters of these deaths involve swimming pools accidents. Shockingly, more than a quarter of swimming pool drowning incidents happen while adults are present.

Some basic safety tips include:

Supervision

Constant monitoring of children is vital, regardless of whether your child is swimming in a pool, or simply in the vicinity of one. Water Watcher Tag’ system, in which an adult is designated to closely supervise children. The designated watcher wears a lanyard around their neck, which as a reminder to adults to pass the responsibility of supervision onto another adult.

Education

Explain to children, in an age appropriate manner, the risks associated with being in or near any body of water without adult supervision. A child’s ability to fully understand the dangers of water is often gained through basic swimming instruction. Further, a child that knows even the most basic of swimming skills, may be able to reach the side of a pool or keep themselves afloat until help arrives. Because every second counts, the longer a child is able to keep their head above water, the better the victim’s chances are of avoiding death or serious injury due to oxygen deprivation.

Security

Pursuant to Florida’s Residential Pool Safety Act, at a very minimum, pools must have a 4 foot barrier (fence), and have access gates that open in an outward direction, with a self-latching locking device located on the pool side of the gate.  Pool owners are encouraged to use multiple barriers, or layers of protection,  such as installing alarms on all doors, windows and gates that provide access to the pool (including dog doors and any other potential points of entry); using a motion-detecting or water-movement detection signaling device; and covering pools or spas with an approved cover.  See the CPSC’s Consumer Safety Brochure for more information on barrier systems.

Emergency Preparedness

A phone should be kept nearby whenever children are swimming. In addition, statistics show that drowning deaths can be greatly reduced when parents, caregivers, water watchers, or other persons responsible for supervising children know CPR. Further, always look in pools or spas first when a child is missing. It is also helpful to know your neighbors, in particular, consider the following: (1) do your neighbors have a pool and you have children; (2) do you have a pool and your neighbors have children; (3) does your neighbor know CPR and you have children; (4) do you know CPR and your neighbor has children?

While Florida’s alarming drowning rate is in part due to climate factors that facilitate swimming year-round, this provides all the more reason for parents, caregivers, and pool owners to take the precautions necessary to ensure the safety of children. The Gainesville attorneys of the Law Office of Alba & Straile, PLLC encourage the residents of our community to practice pool safety, as well as share your knowledge with family, friends, and neighbors. By doing so, we can all contribute to the reduction of drowning deaths and serious injury caused due to water-related accidents, the vast majority of which are preventable.

Equalizing Parental Responsibility In Florida through Terminology Changes

The Gainesville Attorneys of the Law Office of Alba & Straile, PLLC discuss the progression of child custody law in Florida, as it relates to recent statutory revisions. Significant changes have been made to the manner in which custody matters are assessed since the elimination of gender-biased presumptions of fitness, as discussed in ‘Do Florida Courts Favor Mothers Over Fathers in Custody Cases?’

Perhaps the most recognizable, or outwardly apparent, change to custody laws in Florida is the variation in the adversarial terminology once used to describe child custody matters. In example, the harshly oppositional language previously used to define parental rights to a child, such as ‘custodial’ or ‘non-custodial,’ and ‘primary residential’ and ‘secondary residential,’ would often induce, instigate, and/or fuel one parent’s desire to triumph over the other.

In other words, custodial matters in previous years, particularly those extending from divorce, became more of a battle between the parents, as opposed to a battle over protecting the interests of the child(ren) involved. Consequently, as divorce rates continued to steadily incline, so did the adversarial nature of custody cases. In an effort to reduce conflict and equalize parental responsibility, in 2008 Florida made the following revisions to statutory terms pertaining to child custody:

Previous Term(s)
New Term
Definition
“Primary Residential Parent;” or
“Secondary Residential Parent”
AND
“Custodial;” or
“Non-custodial”
“Parent”
No precise definition can be provided for this term that would uniformly apply, given that it can depend on both biological and legal factors. However, in general, the terms refers to the mother or the father. Pursuant to the relocation statute, “Parent” means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child. [See Fl. Stat. 61.13001(1)(d)]
“Joint Custody”
“Shared Parental Responsibility”
“Shared parental responsibility” means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly. [See, Fl. Stat. 61.046(17)]
“Sole Custody”
“Sole Parental Responsibility”
“Sole parental responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child. [See, Fl. Stat. 61.046(18)]
“Visitation”
“Time-sharing”
“Time-sharing schedule” means a timetable that must be included in the parenting plan that specifies the time, including overnights and holidays, that a minor child will spend with each parent. The time-sharing schedule shall be: (a) Developed and agreed to by the parents of a minor child and approved by the court; or (b) Established by the court if the parents cannot agree or if their agreed-upon schedule is not approved by the court.[See, Fl. Stat. 61.046(23)]

Despite Florida’s replacement of key terms associated with parental disputes over a child, it is still important for parents to know the meaning and application of all terms, whether old or new, and for several reasons. For example, both old and new language is often used interchangeably—not only by the general public, but also by attorneys and judges for purposes of general discussion. In addition, previous terminology, or language that is substantially similar, is still referenced in related state law provisions, as well as the UCCJEA. Also, for parents with custody orders entered prior to October 2008, knowing the variation in terms can be helpful in interpreting or modifying an order, or otherwise assessing your parental and legal rights on a matter that might need court-assisted intervention.

Beyond terminology, the more critical consideration is the intent behind legislative changes——to provide the best solution that will effectively protect the interests of the child(ren) involved. Generally speaking, Florida courts place an emphasis on making the process of raising a child a concerted effort between both parents. Therefore, absent an existing or potential issue over detriment to the child, shared parental responsibility will generally be awarded.

At the same time, parents should also keep in mind that despite the shift towards parental equalization, and resulting focus on the best interests of the child, much leeway has been left in the court’s ability to exercise their discretionary powers. Stated differently, although the law requires that custody determinations be made in a gender-neutral manner, and based upon what is best for the child, this is not to say that gender biases might find their way into a judge’s evaluation of the best interests criterion. In fact, many concerns over judicial authority in custody matters raised in recent years by legal professionals, scholars, as well as lawmakers

Although we hope to see additional reform in the future, for now, custodial matters must be addressed in accordance with the laws currently in place. As such, it is critical to have an attorney on your side who can thoroughly assess your matter, gather all relevant evidence, and most importantly, effectively advocate on your behalf. If you have a question or concern regarding child custody, the experienced and professional Gainesville attorneys of the Law Office of Alba & Straile, PLLC, want to help in obtaining the peace of mind that you and your family deserve.

Staying Safe over the Fourth of July

As we approach the holiday weekend, the Law Office of Alba & Straile, PLLC encourages the residents of our community to be aware of the safety risks commonly associated with Fourth of July festivities.  As stated by CFO and state Fire Marshall Jeff Atwater:

“Independence Day weekend is a time to celebrate our country’s freedom  . . . . but we must be smart and remember that fires and serious injuries can be caused by the improper use of fireworks.”

Over the past five years, the use of fireworks in Florida, has resulted in nearly $2 million in damages. Last year alone, emergency officials responded to 120 fireworks-related incidents throughout the state of Florida, with damages estimated at well over a quarter of a million dollars.

Our Gainesville attorneys offer some important safety tips, to assist in preventing accidents, property damage, and most importantly, injury or death.

Purchase of fireworks

First and foremost, check local ordinances and state laws to determine which fireworks are permissible, which are banned, as well as regulations regarding use. Always purchase fireworks from a licensed vendor, and refrain from purchasing illegal fireworks. Further, be aware of the consequences of signing an ‘agricultural loophole’ waiver, which allows fireworks to be purchased for certain uses, if buyers agree to waiver terms, including exemption from certain laws. In short, such waivers may protect consumers from the illegalities of purchase and possession of fireworks, but do not release persons from criminal or civil liability for improper or illegal use of fireworks!

Basic safety tips

Always have a fire extinguisher available. Make sure that it is functioning properly—AND—that you know how to use it. Also, you should have a hose easily accessible, as well as buckets of water available. Most important of all, be sure that you know basic procedures for extinguishing a fire. There are a number of online resources, and even training courses that offer detailed information on fire safety.

Designate areas

Three key areas should be determined prior to setting off fireworks, including locations for: (1) firework detonation; (2) unused fireworks storage; and (3) persons viewing display (and persons nearby). Consider potential hazards such as trees, bushes, shrubbery, dry grass; building or houses; and anything else flammable or that poses a risk of fire, such as helium tanks, boats, cars, gas propelled devices, storage tanks, etc. Store unused fireworks at a safe distance from the detonation sight. Forewarn others that both the detonation and storage sights are OFF LIMITS!!!

Ensure User Safety

Similar to a designated driver, it is important to designate the person(s) that will set off the fireworks. Fireworks should never be detonated by a person that is impaired or under the influence. In short, alcohol (or drugs) and fireworks are a dangerous combination. Your ‘designated detonator(s),’ should read the instruction beforehand. Also, do not attempt to relight a firework, and never light both ends. Perhaps most importantly—ensure proper direction of firework release.

Ensure safety of others

Take precautionary measures to ensure the safety of intoxicated adults. Maintain continuous supervision over children, particularly young ones, both prior to and during, detonation. Young children may be attracted to the colorful packaging of fireworks—which may contain dangerous chemicals or small parts. Also, small children may run off during detonation, whether towards or away from set-off site. In addition, never give sparklers to young children. Be aware of ‘teen-curiosity,’ and make sure that all fireworks are accounted for and stored out of reach of others. Keep pets indoors.

Disposal

Make sure that used fireworks have completely cooled prior to disposing of them. However, make sure to dispose of (or move) used fireworks and fragments as soon as safely possible, to avoid the risk of exposure or ingestion by a small child.

On the other hand, the best thing you can do to ensure the safety of you, your loved ones, and persons nearby, is by foregoing personal use, and opting to attend a public fireworks show. Click here to view a list of local displays,

If you or a loved one were injured or sustained property damage as a result of a fireworks-related incident, contact the Law Office of Alba & Straile, PLLC to discuss your legal rights and entitlement to compensation.

Criminal cases and Surrender – Turning your self in

In a criminal case, surrender or turning yourself in is the best policy and really the only way to resolve an open warrant or arrest order, sometimes also called a capias . Some may argue with that statement but really every other option is merely turning yourself in or surrendering in a different form.

Sometimes an attorney can file a motion requesting that the court remove, recall or quash the warrant. A motion to withdraw the warrant may be successful if the order was recent. The longer a warrant has been outstanding the less likely most courts are to grant any motions without a hearing where the accused, the defendant or probationer is present. Being present in the courtroom means the potential to be arrested and appearance is a form of surrender. However, sometimes, the court will remove the warrant or capias and issue a notice to reappear at a later court date. In some cases, such as domestic violence, the arrested person has to have a hearing because the Court is required to impose conditions of pre-trial release.

When an accused surrenders, that can be beneficial in seeking leniency later. This can help when seeking to get a bond or reduce a bond already in place. Turning yourself in can also be seen as taking responsibility for the case which can be argued to the case’s benefit by an attorney.  Hiring a lawyer to file a motion seeking to remove a warrant can help. Of course how the case turns out is one hundred percent up to the judge.

Call, text or click to hire a criminal defense attorney that can help with the process of surrender.

Gainesville (352) 371-9141

Ocala (352) 694-4529