July 23, 2014

Phelps v. Hebert: Wrongful Death Actions and the Duty of Care


Our South Carolina attorneys who handle wrongful death lawsuits understand that there may be other parties responsible for a tragic loss of life than just the party who personally performed the negligent act or omission.

quad-1109243-m.jpgPhelps v. Herbert is a wrongful death case filed under a theory of negligence that was argued before the Supreme Court of Rhode Island. In Phelps, at a family's high school graduation party, a friend of the graduate showed up with a case of beer as a graduation gift. Later that evening, the friend went home to get his new All Terrain Vehicle (ATV) and returned to the party. A friend asked for a ride on the ATV. The driver offered her a helmet to wear, but she declined. He drove down the road and then returned to the house.

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July 21, 2014

Warner v. Simmons: Contributory Negligence and Premises Liability Actions


Our Charlotte personal injury lawyers understand that contributory negligence can have a significant impact on a plaintiff's potential recovery.

brokenbone.jpgWarner v. Simmons is a premises liability case in which the plaintiff and some friends were staying at a cabin owned by the defendant while on a float trip. A float trip is an excursion where people rent rafts, canoes, or inner tubes and float down a river.

The rental property consisted of three cabins that were named north, south, and middle. Between the cabins were cedar planks that were placed end to end on the ground to be used a walkway. According to the record, when the plaintiff was returning home from dinner, she stepped on one of the planks and it turned up and hit her foot. This caused her fall, and she was in a great deal of pain. She was taken to the hospital and an x-ray was performed.

At the hospital, doctors diagnosed the plaintiff with a broken left tibial plateau that required surgery. After having foot surgery, she needed a walker for the first four months of recovery, could not put weight on the foot, and was in significant pain for over two and half years following the accident, according to her testimony.

The plaintiff filed a lawsuit against the cabin owner, claiming negligence under a premises liability theory. The claim was that the defendant failed to inspect the premises to make sure they were safe for visitors, failed to warn guests of known dangers, and failed to maintain the property in a safe condition.

The defendant filed an answer to the complaint, alleging that the plaintiff was contributorily negligent and thus responsible for the injuries to her foot. The defense's claim was based on the fact that the plaintiff's friend testified that she immediately recognized that the board was up, and it was not a good idea to walk on it. The friend made the choice to walk on the grass on either side of the board. This testimony was elicited to show that the raised plank was an obvious danger, and the plaintiff acted negligently when she chose to walk on it.

The case proceeded to trial and a verdict was returned in favor of the defendant. The plaintiff appealed the verdict on grounds that the judge improperly instructed the jury on the law regarding premises liability.

The issue in this case centered on the difference between contributory and comparative negligence. In a contributory negligence jurisdiction, if the plaintiff was in any way negligent, and that negligence contributed in any amount to injuries sustained by the defendant's negligence, the plaintiff cannot recover. For example, if you are driving a car and slightly cross the double yellow line and hit an intoxicated driver who was swerving all over the road, the fact that you were slightly negligent in crossing the yellow line bars you from recovering anything from the defendant, because you were contributorily negligent.

In a comparative negligence jurisdiction, the finder of fact will assign the relative percentages of negligent conduct on behalf of the parties, and any recovery is offset by the amount assigned. In our example, if you were five percent negligent by crossing the yellow like and the drunk driver was ninety-five percent liable, any money awarded would be reduced by five percent.

Only four states and the District of Columbia are pure contributory negligence jurisdictions. North Carolina happens to be one of those states. This does not necessarily mean that you will be prevented from recovering at trial if you were contributorily negligent; because, your personal injury lawyer may be able use the last clear chance doctrine to counter any such argument.

Contact the Charlotte personal injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Warner v. Simmons, July 3, 2014, Supreme Court of Nebraska

More Blog Entries:

Cox, et al. v. Wal-Mart Stores, Inc.: Usual or Expected Dangers and Their Effect on Premises Liability Actions, June 25, 2014, Charlotte Personal Injury Lawyers Blog


July 20, 2014

S. Shore Baseball, LLC v. DeJesus; Premises Liability Cases and Assumption of Risk


Our South Carolina Injury lawyers know that determining a duty of care in premises liability cases depends on the status of the injured party at the time of the accident. A concise explanation of the law in South Carolina can be found in the case of Sims V. Giles.

baseball-in-grass-1395007-m.jpgS. Shore Baseball, LLC v. DeJesus, an Indiana Supreme Court case, addressed whether a baseball team owed a duty of care to protect fans from being hit by baseballs in the context of a negligence case.

In S. Shore Baseball, a minor league baseball fan attended the team's opening day home game with tickets she acquired from a friend. The back of the tickets contained the standard boilerplate warning that excused team owners from any and all personal injury and property damage and also stated that the ticket was not transferable. This warning included language that the team owners were not responsible for any damage or injury caused by thrown or batted balls.


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July 18, 2014

Hartman v. Ebsco Indus., Inc.: A Motion for Summary Judgment in Personal Injury Cases


Our Charlotte personal injury lawyers understand that products liability cases require a thorough understanding of this ever-changing area of negligence law.

blackgun.jpgIn Hartman v. Ebsco Indus., Inc., the plaintiff was seriously injured when the muzzle-loading firearm he was loading accidently discharged, causing the patched round ball (bullet) to shoot through his hand and into his arm.

In case you are not familiar with a muzzle-loading firearm, it is a firearm where you pour black powder into the chamber, add a piece of cotton wadding, and then place a round ball of lead into the barrel. You then take a metal-tipped wooden rod called a ramrod and force the round ball down the barrel. You place a percussion cap on the gun (or use flash powder) so that the gun will fire when the hammer strikes. This was how all guns were made up until the end of the Civil War. In this case, the plaintiff was using a modern reproduction of a muzzle-loading rifle.

Muzzleloaders use black powder, which is not as volatile as modern day gun powder or pyrodex. Even if a person uses modern gun powder, he or she would need to use a shotgun primer instead of an old style percussion cap. In Hartman, the plaintiff attempted to use a shotgun primer, but the powder would not ignite. To overcome this problem, the plaintiff ordered a premade conversion kit for the rifle.

This conversion kit was manufactured by the same company that manufactured the muzzleloader. After the plaintiff installed the upgrade kit, he and his friends went to test the gun and sight the rifle. He put a primer on the gun before loading. This is considered very dangerous and is not proper procedure. He also used a more dangerous type of ammunition than instructed. While he was forcing the round ball into the barrel, it discharged causing the rod and ball to hit him.

The plaintiff filed a lawsuit against the firearm's manufacture and associated entities in which he claimed negligence. The defendants filed for summary judgment, requesting that the case be dismissed.

The grounds for dismissal were that the gun was manufactured more than 10 years ago and a state statue limited products liability to a 10-year period after the goods were placed into the stream of commerce.

Rule 56 of the Rules of Criminal Procedure controls a motion for summary judgment in North Carolina. This is a motion that states that, even if everything the plaintiff alleges is true, there is no valid case against the defendant. In Hartman, the reason was that the 10-year limitation period preventing bringing a suit.

In Hartman, the Court looked at the issue of whether a later modification of an existing product by the manufacturer would restart the 10-year period. The requirement was whether the modifications extended the useful life an existing product. Based upon testimony in the case, the court found that it only made the gun more accurate but did not extend its useful life.

Contact the Charlotte personal injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Hartman v. Ebsco Indus., Inc., July 10, 2014, United States Court of Appeals for the Seventh Circuit

More Blog Entries:

Mack v. Stryker - Pain Pump Maker Couldn't Have Known Risks, Court Rules, May 31, 2014


July 17, 2014

Shea v. Kevic Corporation: Summary Judgment and North Carolina Personal Injury Cases


Our Asheville personal injury lawyers understand that for a plaintiff to recover at trial in a personal injury lawsuit, the case must survive summary judgment.

ice-frozen-river.jpgIn Irina Shea v. Kevic Corporation d/b/a Lett's Downtown Carwash, the plaintiff was injured when she fell on ice after having her car washed by the defendant. According to witness testimony, Shea had just finished having her car washed, when she stepped out of her car to adjust her mirrors, which she claimed were moved out of place while her car was being washed.

Shea alleged that she fell on ice that the defendant had negligently allowed to form by the exit of the carwash. She also alleged that the defendant negligently failed to warn customers of the potential danger created by the ice. Shea filed suit against Kevic, claiming more than $30,000 in damages for her injuries. Prior to trial, the defendant, Kevic, filed a motion for summary judgment, which was granted by the court.

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July 14, 2014

Gallant v. MacDowell: Medical Malpractice and the Discovery Rule


Our North Carolina personal injury attorneys understand the importance of filing a case within the time permitted by the statue to limitations.

dentist-mold.jpgGallant, et al. v. MacDowell is a dental malpractice personal injury case appealed to the Supreme Court of Georgia. In Gallant, the plaintiff was referred to two dentists by another dentist. One of the dentists was Dr. Gallant, who specialized in prosthetics. The other was an oral surgeon, Dr. Ann Winston. Both dentists were hired to work together to perform a full prosthodontic restoration.

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July 11, 2014

Millea v. Erikson: Duty of Care in South Carolina Wrongful Death Cases


Our South Carolina personal injury attorneys understand that establishing a duty of care in a negligence case can be a complicated matter.

ambulance677683-m.jpgIn Millea v. Erickon, the defendant, Erickson, often worked as a babysitter. She lived at home with her mother, Paula Myers, and her mother's boyfriend, John Laughlin.

On August 20, 2011, the plaintiff's parents asked Erickson to watch their 10-month-old daughter ("the baby"). As she had done on previous occasions, Erickson would watch the baby at the Laughlin/Myers apartment, where she lived.

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July 7, 2014

CDC: One in Ten Working-Adult Deaths Related to Excessive Drinking


While most of us realize the dangers of drinking and driving or long-term alcohol use, we many not fully grasp the risk of excessive alcohol consumption. According to a recent report published by the Centers for Disease Control and Prevention and published in Preventing Chronic Disease, alcohol use accounts for 1 in 10 deaths among working adults. Researchers reviewed death cases among working aged adults between 24 and 64, finding that approximately 88,000 deaths between 2006 and 2010 involved the excessive use of alcohol.

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According to the report, many of the deaths did correspond to long-term alcohol abuse, including breast cancer, liver disease, and heart disease, but alcohol also triggered accidental and sudden death related to alcohol poisoning, motor vehicle collisions and violence. Our Charlotte personal injury attorneys are committed to providing strategic and experienced representation to victims of serious accidents and injury. In the event of an accidental death related to alcohol, including boating or motor vehicle collisions, our attorneys will perform an immediate and thorough investigation to identify the cause of the accident and hold responsible individuals and entities accountable.

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July 5, 2014

Child Injuries & Liabilities of Babysitters and Daycares


Every parent's worst nightmare is having their child suffer a severe or life-threatening injury when left under the care of a babysitter. A babysitter in North Carolina is now facing criminal charges after the 15-month-old she was babysitting was burned by scorching water and left in the bathtub. According to police reports, the father of the infant came home to find his infant daughter crying in the bathtub and covered with burn wounds.

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First responders said that the infant must have been left in the water for at least 30 minutes and suffered from 1st, 2nd, and 3rd degree burns. Police records indicate that the babysitter did not hear the infant screaming because she was wearing headphones and listening to music. This is a tragic case, though unfortunately, child accidents and injuries involving babysitters and daycare centers are not uncommon. Our Greensboro personal injury attorneys are dedicated to protecting the rights of parents and injured children. We will investigate your case, identify responsible parties, and work to recover maximum compensation for child injuries.

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July 4, 2014

Injury Prevention for 4th of July Weekend


Fourth of July weekend is a time for family gatherings, beach parties, backyard pool parties, camping, and all-night festivities that commemorate our U.S. independence. While preparing your family for the big holiday weekend, remember to put safety first. Every year, thousands of Americans are injured in 4th of July accidents, including those involving outdoor barbecues, swimming, alcohol, or fireworks. North Carolina families can help to prevent injures by understanding the risks and being prepared.

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Our Charlotte personal injury attorneys represent individuals and families who have been impacted by serious and life-threatening injuries. We are experienced in accident investigations and committed to raising safety awareness to prevent future injuries or wrongful death. Here are some tips to help prevent accidents or injury this 4th of July weekend.

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July 2, 2014

Keeping Kids Safe this Fourth of July


Fourth of July weekend is a great time for families to have a cookout and enjoy a day at the pool. While this can be a lot of fun, our personal injury lawyers urge you to take extra precautions to make sure the kids stay safe.

fireworks12.jpgA swimming pool, whether it is the backyard or a public facility, poses many dangers to children. Some of these dangers, like drowning, are obvious, but there are also some less obvious dangers like slip and fall accidents. According the North Carolina Child Fatality Prevention Team, an average of 29 children will die each year across the state from drowning. Many of these deaths occur in children aged one to five and primarily in children with little or no prior swimming lessons or other experience with the water. It was also noted that insufficient supervision of small children at the pool played a large part in these tragedies.

It is imperative that small children be watched at all times when they are in the water. It is also important for parents to familiarize themselves with what drowning actually looks like. In the movies and on TV, we are used to seeing people thrashing around in the water with arms flailing wildly. We see huge splashes until the victim finally slips below the surface of the water. While this Hollywood depiction of drowning may add to the drama on the big screen, it is often far from what drowning looks like in real life. Often, drowning victims have reached a level of fatigue that makes it difficult to keep their heads above water. Once a victim starts having trouble breathing, he or she may start to experience blackouts, hypoxia, or other neurological symptoms caused by a lack of oxygen to the brain. The victim will likely be completely silent at this point, with very little movement.


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June 29, 2014

Kelly v. Haralampopoulos - Exception to Hearsay Rule in Medical Malpractice Claims


In civil court as well as criminal, it's imperative that only accurate evidence be presented, and that both sides have a fair chance to refute information detrimental to their claim.
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Anderson medical malpractice attorneys know that one of the ways courts accomplish this is by barring hearsay evidence. Hearsay is information obtained from another source that cannot be adequately substantiated.

However, there are sometimes exceptions, and South Carolina defines them in its Rules of Evidence, Rule 804. Additionally recognized are exceptions within the Federal Rules of Evidence, and relevant to our discussion here is Rule 803(4), which addresses statements made for medical diagnosis or treatment.

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June 27, 2014

Gregory Coogan v. Cherryl Nelson et al.: Proving Dog Owner Knowledge of Vicious Tendencies


Asheville, North Carolina personal injury lawyers know how complex an animal attack case can be. While there is often no question that a defendant's dog (or other domestic animal) caused harm to the plaintiff, North Carolina law provides three basic ways in which a person can be liable for injuries caused by his or her dog. The first method of proving liability in a dog bite case is under a theory of negligence. Basically, the owner of the dog owed a duty of care to the injured plaintiff, and the dog owner breached his or her duty of care. This is the same negligence standard used in most personal injury cases in the Carolinas.

angry-dog.jpgThe second way in which your dog bite lawyer could prove a case is through the North Carolina dog bite statute (Chapter 67 of the North Carolina Code). If the owner engages in certain dangerous behaviors such as allowing his dogs to run free at night or using a dog unlawfully in a hunt, he may be liable under this statute.

The third way to prove a dog bite case in North Carolina involves the issue of whether the owner of the dog knew or had reason to know that his or her dog had dangerous tendencies. This is what lawyers typically refer to as the "every dog gets one bite rule." What this means is that if you own a dog, and that dog has never bitten anyone, you should have no reason to know your dog is likely to bite someone. However, once your dog has bitten someone, you should know that your dog has such tendencies, and you must take appropriate precautions to prevent your dog from biting other people. With this theory of proof, your personal injury lawyer must present evidence that the defendant knew or had reason to know that his or her dog was likely to bite another person.

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June 25, 2014

Cox, et al. v. Wal-Mart Stores, Inc.: Usual or Expected Dangers and Their Effect on Premises Liability Actions


Winston-Salem premises liability lawyers routinely deal with the issue of whether a particular dangerous condition was known or should have been known by the property owner. While there have been some legislative actions addressing landowner liability in the North Carolina Code, most of the law on this topic comes from judicial decisions. The following is a recent case in the Fifth Circuit dealing with this issue.

caution-tripping-hazard.jpgIn Jamie Cox; Rickey Lee Cox v. Wal-Mart Stores East, L.P., the United States Court of Appeals for the Fifth Circuit examined the issue of whether a defective door threshold was unreasonably dangerous for the purpose of a premises liability action.

In Cox, plaintiff Jamie Cox went to a Wal-Mart store in Fulton Mississippi along with Rickey Lee Cox. As she entered through the automatic door, she fell and suffered injury. According to a witness sitting on a nearby bench for approximately an hour prior to Mrs. Cox's fall, the threshold of the door had been rocking back and forth whenever a person stepped on it or a shopping cart rolled over it. This witness further testified that the threshold plate would rise as much as one-half an inch and that the lifting seemed to be caused by the plate not being property secured to the floor. He testified that when Mrs. Cox stepped on one side of the threshold plate, the other side lifted up and caused her to fall. The plaintiffs filed claims for personal injury and loss of consortium in state court. The defendant, Wal-Mart, removed the case to the local United States District Court and then filed a motion for summary judgment. This motion asserted that the threshold defect was not unreasonably dangerous. The trial court agreed with the defendant and granted the motion for summary judgment.

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June 23, 2014

North Carolina Appeals Court Rejects Liability Claim Against Landlord for Dog Bite


When dogs cause injuries to people, it's clear their owners can be held liable for injuries, usually through homeowners' insurance claims.
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But what if they are renters? Charlotte dog bite injury lawyers know the owners of the dog can still be held liable, and it's possible their landlord may be held liable as well.

However, as the recent New York Court of Appeals case of Stephens v. Covington shows, the circumstances under which a landlord can be held liable are narrower than the negligence theory applied to the owner.

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