August 27, 2015

State ex rel. Beisly v. Hon. Perigo - Civil Justice for Criminal Wrongs

An estimated 30 million people in the U.S. are victimized by crime annually, and the consequences of that crime often extend far beyond the individual act. The U.S. Department of Justice estimates victims - and those who survive them - are left with substantial costs for medical treatment, rehabilitation, counseling, lost wages and property damage.
Every year, those costs stack up to $450 billion.

But the criminal justice system is not designed to compensate victims of crime for their losses. True, some cases do result in orders of restitution. But the victim has little control over the proceedings, and the goal of the criminal justice system is punishment of the offender, not restoration of the victim.

This is why many victims of violent crime (and/or their surviving loved ones) may seek justice through the civil court system. In this forum, victims have a greater amount of control. They can seek financial compensation. They can hold offenders directly accountable. They can also pursue action against other third-party responsible parties, such as businesses, apartment complexes and shopping centers that failed to have adequate security. They may also pursue a civil lawsuit even if the criminal action sputters out and fails to result in a conviction.

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August 24, 2015

South Carolina Group Homes Face Abuse Allegations

A number of group homes in South Carolina have received millions in taxpayer funding the last few decades, despite dozens of allegations of abuse involving those in their care.
A few have been forced to shut down, but others remain open.

One of those now shuttered was in Belton. The group home for troubled youth received an estimated $1.5 million annually in state funding. And yet, according to a recent investigation by the Post and Courier, the facility was investigated more than three dozen times for alleged abuse and neglect of the children there since 2000.

However, it wasn't until a personal injury lawsuit was filed by one of the former residents, now a 23-year-old man, that the facility actually closed its doors. His lawsuit alleges he was raped and tortured by staff members and their friends. He claims he reported the abuse to a social worker and another employee, but nothing was done. Eventually, he said, he just gave up. And he wasn't the only one - and neither was that facility.

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August 23, 2015

MythBusters: Hands-Free Cell Phones No Safer When Driving

There is a pervasive belief that hands-free cell phones are safer than handheld cell phones when driving. smallheadphones.jpg

It's an erroneous assertion, but it's underscored in the many state statutes across the country that allow exceptions for cell phone conversations by a driver who is using a wireless headset, dashboard system or speakerphone instead of a handheld device.

Now, the MythBusters has debunked this myth.

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August 21, 2015

Hattiesburg Health & Rehab Center v. Brown - Arbitration Agreement and Nursing Home Neglect

South Carolina nursing homes often require new residents or their close relatives to sign stacks of paperwork upon admission. Increasingly, within this paperwork, are documents that force residents to hand over their constitutional right to have any future torts handled in a court of law.
Instead, nursing home corporations expect residents who are abused, neglected and suffer from negligence to settle their cases through a process called arbitration. The contracts they are made to sign are called "arbitration agreements."

The conditions of these agreements are often heavily skewed in favor of the nursing home. While arbitration can end in a result favorable to a plaintiff, the likelihood of success is lesser than in court and the damage awards are often greatly diminished. No wonder nursing homes are compelling people to sign it.

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August 17, 2015

Cooper v. Takeda Pharmaceuticals - Actos Lawsuit Decided in Plaintiff Favor

When we take medication prescribed by our doctors, we assume those products are as safe as possible and that any known risks will be disclosed so that we can make informed decisions.
Unfortunately, that isn't always the case. Pharmaceutical companies routinely market their drugs for off-label purposes, and they don't always warn of the potential dangers of this.

This was the case in Cooper v. Takeda Pharmaceuticals, where a jury in California granted $6.5 million to plaintiffs in this product liability case against the maker of the diabetes drug Actos. Despite the verdict, the judge in the case granted a judgment notwithstanding verdict in favor of defendants, after deciding to strike the testimony of plaintiffs' expert witness post-trial.

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August 15, 2015

Report: Blood-Thinning Drug Unmonitored Harms Nursing Home Residents

A popular blood-thinning drug is widely prescribed to elderly patients across America.
Coumadin and its generic counterpart, warfarin, has been a noted lifesaver for those who suffer certain heart issues or stroke risks. But the drug must be carefully monitored by health care professionals, or else it can quickly become deadly. Too much, and the patient runs the risk of uncontrollable bleeding. Too little, and there is a chance of developing potentially fatal blood clots.

Nursing home patients in particular are at high risk of these complications because, as a recent ProPublica investigation reveals, this population is already vulnerable to the kinds of lapses in oversight that result from poor staffing levels and lack of training.

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August 13, 2015

Robinson v. Mine Safety Appliances Co. et. al. - Time Limits in Latent Disease Litigation

Statutes of limitations are the way the legislature has worked to keep the courts from becoming clogged with years-old cases that are often not winnable due to lack of evidence.
This is true in both civil and criminal cases.

In North Carolina, N.C. Stat. 1-52(16) allows three years from the date of injury for someone to bring a personal injury lawsuit. Meanwhile, N.C. Gen. Stat. 1-50(6) doesn't bar action on product liability claims for six years. Different types of claims may have varying statutes of limitations, and that can change depending on the state you're in too.

While the courts take these time limits quite seriously, there are some situations in which they may "toll" or lengthen the window of time in which a claim may be filed. Generally, the clock starts ticking on these claims from the time at which the injury occurred - or plaintiff should have known it occurred. So for example, car accident-related injuries will almost always be known or knowable from the date of the crash, so that's when the statute of limitations clock starts ticking. However, in cases where there is a latent disease - such as mesothelioma or silicosis - a person may be seemingly healthy for decades after exposure, and only much later learn the extent to which exposure to asbestos or silica dust sickened them.

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August 10, 2015

Westfield Ins. Co. v. Vandenburg - Insurance Exclusions for Injury

Many personal injury cases involve efforts to collect damages from the insurance companies that provide coverage for accidental injury and negligence.
For example, an auto insurance policy may expressly indicate it will not cover punitive damages for an insured's wrongful acts. It may bar coverage from certain high-risk drivers in the home of the insured (sometimes called a "named driver exclusion").

The problem is, insurance companies have woven into these policies a host of exclusions, or situations for which the company will not provide coverage. Some of these are understandable. But insurance companies will often stretch the facts of the case in an attempt to meet the criteria of the exclusion, even when the claim is in fact legitimate.

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August 6, 2015

Wright v. PRG Real Estate Mgt. Inc. - South Carolina Premises Liability Lawsuit

In some cases, property owners or managers may be held liable for third-party criminal attacks or crimes when there was a failure to provide adequate security. This is a form of premises liability law, sometimes referred to as "negligent security," as recognized by courts in South Carolina.
However, as the recent South Carolina Court of Appeals case of Wright v. PRG Real Estate Mgt. Inc., establishing "duty of care" in these cases - an essential element of negligence - can be a challenge.

In tort law, a duty of care is a legal obligation imposed on a person or a company that requires adherence to a standard of reasonable care while performing any acts that could result in foreseeable harm.

In the Wright case, plaintiff had leased an apartment from defendants for five years prior to the incident in question. The property had numerous public walking trails that wove throughout the community, with this and other properties being accessible via these trails. On the night in question, plaintiff parked her car and began walking to her apartment when she was accosted by two men. One held pointed a gun at her and both demanded money. She told them she had none.

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August 4, 2015

Report: 135 People Die Annually in U.S. School Bus Crashes

As far as roadway transportation goes, school buses are among the safest vehicles out there.
Still, there continues to be concern regarding school bus crashes and related injuries and fatalities, and federal officials are arguing more could be done to prevent harm to students. It's an important, ongoing discussion that comes just ahead of the 2015-2016 school year.

On the heels of a comprehensive report by the National Highway Traffic Safety Administration detailing school transportation crashes, injuries and deaths, the agency recently hosted a School Bus Occupant Protection conference that debated the merits of installing seat belts in school buses.

Central to this discussion was a 2014 report released by the National Association of State Directors of Pupil Transportation Services, which opined that passenger lap and shoulder belts improve safety on school buses and the costs to equip school buses with them are not unreasonable.

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August 2, 2015

Chadd v. U.S. - Wrongful Death Lawsuit Against Government and Discretionary Function Exception

The purpose of the Federal Tort Claims Act is to waive the sovereign immunity that would normally bar a lawsuit by private citizens against the federal government for wrongdoing committed by its employees in the scope of their employment.
However, there are 13 specific exemptions to the waiver, with the most commonly used being the discretionary function exception. It provides in part that the government can't be liable for claims based on the exercise or performance of a discretionary function or duty of the government worker - regardless of whether that discretion was abused.

This is in contrast to ministerial functions, which are specific duties made mandatory by the government employer. The exception is broad, and it isn't always applied with any real precision by the courts. This can make it difficult to predict a precise outcome.

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July 31, 2015

Purscell v. Tico Ins. Co. - Intentional Wrongdoing and Bad Faith Insurance

The case of Purscell v. Tico Ins. Co. is at once sad and strange.
The legal questions it asks are intriguing.

It involves the excess liability incurred by a driver who was apparently trying to be a friend to a co-worker, a young woman who was impaired and clearly troubled. The problem is that their actions collectively resulted in the death of that young woman, as well as serious and permanent injuries to another man and other injuries to that man's wife.

Sorting through the question of who should pay became complicated.

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July 28, 2015

Jamison v. Hilton - Medical Malpractice Verdict in Baby Death Affirmed

The South Carolina Supreme Court recently affirmed a trial court jury verdict favoring a mother whose son died prior to birth at 32 weeks gestation. She alleged medical malpractice by her gynecologist, whom she said failed to take action in the weeks prior to that, when the child's growth, fetal heartbeat and movements were abnormal and slow for a fetus of his size and age.
In the case of Jamison v. Hilton, the state supreme court refused a request by defendants to reverse a trial court order denying summary judgment and denying a request to issue a judgment notwithstanding verdict.

According to court records, plaintiff was already considered to have a high-risk pregnancy at the outset, as she suffered from chronic hypertension.

Defendant practice assumed prenatal care of plaintiff about halfway through her pregnancy, sometime in July 2008.

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July 26, 2015

Eshelman v. Key - Dog Bite Injury Against Child by Police Dog

It's rare in many states that a severe dog bite injury on a child - especially if the attack was unprovoked - would not be compensable.
North Carolina's dog bite laws are spread out over several different statutes.This state does recognize strict liability if:

  • The bite occurred while the dog's owner intentionally allowed it to violate the state prohibition against running at-large (assuming dog is at least 6-months-old);

  • Dog was kept for purposes of dog fighting;

  • Dog was previously declared a "potentially dangerous dog" due to previous conduct

  • Dog without provocation killed or inflicted serious injury on a human

But even under these circumstances, there may be complexities in the case that are not immediately apparent.

That's why it's imperative to consult with an experienced Asheville injury lawyer who can review the circumstances, explain your rights and formulate an effective strategy for pursuing compensation.

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July 23, 2015

Child Deaths Prompt Recall of 27 Million Chests and Dressers

A furniture company is recalling 27 million dressers and chests because they have the potential to tip over and crush children if they are not anchored to the wall, the Consumer Product Safety Commission has just announced.
Last year, two children were killed after chests made by Ikea fell onto and crushed them, the furniture maker said. Additionally, there are at least three other child deaths dating back to 1989 that involve other models of furniture. The particular model involved in the two most recent incidents were Ikea's Malm chests. These models were also involved in tip-over accidents that led to four child injuries. There were a total of 14 tipping incidents reported to the company by consumers using this product.

The recall notice indicates that rather than returning the furniture to stores, customers can either pick up or order a free wall anchor kit that can be affixed to the affected items. In the meantime, the unanchored furniture items should be removed out of areas where children may encounter them.

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