Personal injury. Photo: Credit: 9nong/Shutterstock.com.

Two South Florida lawsuits involving slip-and-fall injuries that came before the Fourth District Court of Appeal ended very differently. Although both plaintiffs were injured in similar ways, only one plaintiff walked away with a verdict, thanks to legal complications stemming from an employment waiver and a contradictory medical record.

One case involved Broward security guard Diveston Merlien, who accused his assigned client JM Family Enterprises Inc. of negligent maintenance after he slipped and fell on its stairs. He'd signed a waiver through his employer, AlliedBarton, which prohibited legal claims "from or against any customer (and the employees of any customer)" for injuries covered by workers' compensation.

Under Florida contract law, employees can sidestep such a disclaimer if it doesn't clearly explain the rights they're giving up, or if it violates public policy, meaning it harms or goes against societal interests some way. And Merlien alleged just that, arguing the employment didn't explain exactly what his compensation rights were. But then-Broward Circuit Judge Raag Singhal disagreed, granting a summary judgment.

That was the right move, according to the Fourth DCA, which found this case stood apart from others the plaintiff had flagged, including one brought by family of a University of Central Florida football player who died during practice and had signed a waiver with a "misleading preamble."

The appellate panel found the security firm's disclaimer, on the other hand, clearly explained the rights released, who the beneficiaries were and which situations it covered. The opinion also said the waiver conforms to public policy, since it follows worker's compensation law and only covers negligent conduct, not intentional torts.

Merlien's attorneys Neil Rose in Hollywood and Morgan Weinstein of Weinstein Law in Fort Lauderdale maintain that the clause is invalid.

"The challenge is the release speaks in terms of workers compensation rights and says he's going to be informed of his rights if he's injured, suggesting he doesn't know about his rights now," Rose said.

What's more, Rose pointed to Florida Statute Section 440.39, which says employees injured by third-party negligence can pursue claims against them — something the clause doesn't mention.

"He shouldn't have to give up his rights to sue a third party in order to get his worker's compensation rights," Rose said.

It's an important issue, the way Rose sees it, because AlliedBarton uses the same disclaimer for employees across the country.

Counsel to JM Family Enterprises, Kansas Gooden and Ian Waldick of Boyd & Jenerette's Miami and Jacksonville offices said they were pleased the ruling enforced the "unambiguous contract."

"AlliedBarton's contract with its employees was intended to protect its customers, like JM Family Enterprises, while also giving its employees the protections of the Florida's workers' compensation statute," Gooden said.

A prejudicial exclusion?

Meanwhile, plaintiff Shantel Kimberly Emmitt sued Ohio-based First Transit Inc. after she fell from its trolley, allegedly because it hadn't properly cleaned and maintained its steps.

But before filing suit, she'd leaned on a medical record that said the trolley jolted as she was getting off — that is, until the defense presented video footage that showed otherwise.

The plaintiff moved to block those records at trial, and Broward Circuit Judge Michele Towbin Singer obliged, reasoning that hearsay from a medical record wasn't enough without testimony from the doctor about diagnosis.

When jurors found the defendant 80% negligent, Singer overturned that, remarking that it was "substantially prejudicial" that the defendant hadn't been able to demonstrate how the plaintiff's stories had changed, according to Wednesday's ruling.

But the appellate panel found Singer had it right the first time and reinstated the verdict, noting that the defense, "for whatever tactical reason," agreed to a mid-trial stipulation that informed jurors, "There is no allegation or evidence that a jolt caused the plaintiff to fall."

"If there was no allegation to support a theory of liability because the trolley jolted, evidence of such causation was irrelevant," the opinion said. "Using the plaintiff's statement as substantive evidence would be proof that the plaintiff did fall because the trolley jolted."

Emmitt's lawyer Douglas Eaton of Eaton & Wolk in Miami declined to comment, while First Transit's attorney Alexandra Valdes of Cole, Scott & Kissane in Miami did not immediately respond.

Read the opinions:

More appeals:

A Surprise Email, Last-Minute Evidence and a Broward Judge's Steadfastness Mark Case Alleging 'Trial by Ambush'

Alleged Attorney Misconduct Not Enough for Do-Over of South Florida Personal Injury Trial