Accidents and injuries occur all the time. In many cases, someone else is to blame. Our laws recognize the injustice of this and allows injured persons to seek remedy through the civil court system. driving8

There, plaintiffs have a chance to be compensated for their losses and their pain. But sometimes, even plaintiffs who prevail in their personal injury lawsuits may end up collecting less than what they are awarded. This often has to do with plaintiff’s health plan claiming all or some of it for reimbursement for money it spent on medical expenses.

There is nothing illegal about this, and the reasoning behind it is sound: If a person keeps the money intended for reimbursement of health care expenses, he or she is essentially being paid twice – once by having the health care expenses covered and then again by the defendant in the injury lawsuit.

The problem is sometimes there isn’t enough money to go around. The total compensation after legal expenses may not be enough to cover one’s loss of wages, pain and suffering, etc. – in addition to medical bills.  Continue reading

In the recent case of Houston v. C.G. Security Services, Inc., a plaintiff in Indiana alleged negligent security was a proximate cause of her slip-and-fall injury sustained during a New Year’s Eve hotel party. stairs6

The appeal in the case recently before the U.S. Court of Appeals for the Seventh Circuit concerned defendant’s reported engagement in a pattern of “obstreperous discovery behavior,” including submitting false documentation and impeding the fair conduct of depositions.

Although the court granted summary judgment to defendant on the issue of liability, it nonetheless imposed sanctions (as recommended by a magistrate), which included ordering defendant to pay $119,000 in plaintiff’s attorney’s fees and $16,500 in plaintiff’s court costs. That ruling was later affirmed by the federal appeals court.  Continue reading

In many negligence lawsuits, there are theories of direct liability and theories of vicarious liability. Direct liability occurs when a named defendant has engaged in negligence. Vicarious liability occurs when a named defendant may not have acted with negligence, but may be held liable for the negligence of another due to a special relationship with that person. nurse2

For example: A parent could be vicariously liable for the actions of a minor child. A vehicle owner could be vicariously liable for the actions of the person driving the car. An employer could be held vicariously liable for the actions of an employee acting in the course and scope of employment.

In medical malpractice lawsuits, this issue of vicarious liability can be used to take a hospital to task for the negligence of staffers that result in harm to patients. However, many of those who work in hospitals are not employees, but rather independent contractors. This can apply to doctors, nurses, aides and others.  Continue reading

Two serious accidents in the Carolinas have safety advocates calling for tougher penalties for motorists who injure or kill cyclists. Meanwhile, tourism officials are searching for ways they can invest in bike safety to boost biking numbers in both states.bicycle

A South Carolina woman has been charged with DUI following a fatal bicycle accident in North Augusta, little less than 2 hours Southeast of Anderson. Authorities say the suspect struck and killed a bicyclist in Aiken County while driving a late-90s model Chevrolet Luna around 8:30 on a Saturday night. The cyclist was a 60-year-old man.

And then in Johnston County, North Carolina, four bicyclists were struck and two suffered critical injuries after they were struck by a vehicle on a recent Saturday afternoon. The crash occurred shortly before 3 p.m. on Massengill Pond Road. The 50-year-old driver reportedly approached the cyclists from the rear while traveling the same direction and struck all four of them. Each of the cyclists was ejected. The cyclists range in age from 34 to 60. Continue reading

Government agencies – local, state and federal – have a duty to maintain roadway systems in a condition that is reasonably safe for public travel by drivers who are exercising ordinary care.

But does that extend to the edge of the road? The Ohio Supreme Court in Baker v. Wayne County ruled: No. road7

Of course, this doesn’t have any direct bearing on the courts in North and South Carolina, but it’s worth exploring how the court reached this conclusion, as state supreme courts often look to their sister courts for guidance on similar legal issues.

According to court records in this case, a 17-year-old student was driving down a two-lane country road. It was raining and the sun wasn’t yet up, as it was just before 6:30 a.m. As she was driving, one of her tires slipped off the road to her right. In her panic and inexperience, she over-corrected to the left. When the car got back onto the road, she over-corrected again to the right. As a result, her vehicle careened off the road, struck a statute of a deer and then a tree. After striking the tree, her car burst into flames. Engulfed in the fire, the girl died at the scene.  Continue reading

In any injury that occurs on or near a medical facility or involves a medical professional, one of the first questions that must be raised is:

Is this a matter of medical malpractice or general negligence?hospitalbed2

The answer to this question will determine the course of action for the personal injury plaintiff. On the whole, medical malpractice cases are more challenging. There are more requirements that must be met. There are stricter rules on notification and statutes of limitations are typically less than for general negligence. All medical malpractice cases require affidavits and the promise of testimony from medical experts who are similarly positioned with defendant. And the proof burden isn’t a matter of whether the health care provider in question acted with negligence, but rather whether he or she adhered to the applicable standard of care – which is different for every provider in every region. Medical malpractice cases also tend to take longer and cost the plaintiffs more in legal fees because they often deal with complex facts and issues of law.  Continue reading

You may know that the majority of personal injury lawsuits never make it to trial. A big reason for that is that many are settled out-of-court before they ever reach that stage.

But there is another reason too: Summary judgments and motions to dismiss. caraccident7

All civil lawsuits have to meet the basic merit requirements before proceeding. Motions to dismiss and for summary judgment can be filed by the defendant prior to trial. Both are essentially requests to the judge to toss the plaintiff’s case. In order to succeed in a summary judgment motion, defendant has to convince the judge:

  • There is no dispute as to the material facts of the case;
  • Plaintiff failed to meet his or proof burden;
  • Defendant should prevail as a matter of law.

Courts are not supposed to hand down a summary judgment if there continue to be disputes of material facts in the case. However, it’s not uncommon for a defense lawyer to file a summary judgment fairly early in the proceedings and set a hearing prematurely on the issue. The strategy is to get the issue before the judge before there is ample evidence to show a dispute of material fact.  Continue reading

A federal jury for the U.S. Western District of Texas has awarded a woman nearly $16 million in a product liability lawsuit against a utility vehicle that reportedly ran her over in 2011, causing her to suffer paralysis from the neck down.doctor8

However, because the woman was deemed contributorily negligent by half, she will only receive about $8 million of that. Not all states allow collection of damages in the event plaintiff is found to have been contributorily negligent (North Carolina, for example, bars recovery in those instances), but many – including South Carolina – do.

In Nester v. Textron Inc., the Rhode Island company reportedly manufactured the kick-off brake system in the E-Z -Go Workhorse utility vehicles. In the winter of 2011, plaintiff was working on her family’s ranch near Austin, TX while driving one of these vehicles. She reportedly stepped out of the vehicle to open one of the gates. While her back was turned, a 50-pound bag of feed intended for cattle fell onto the accelerator pedal. Plaintiff opened the gate and turned around, only to find the vehicle moving full-speed at her. It was too late to move.

When it ran over her, it caused her significant injury.  Continue reading

A woman shopping for plants at a big box hardware store slipped and fell and suffered serious and permanent brain damage. watering

According to her lawsuit, Hendrickson v. Lowe’s Home Centers LLC, plaintiff accuses the store of negligently allowing water to pool in the outdoor garden area of the shopping center. She said this created a dangerous condition about which the store knew or should have known and which posed unreasonable hazards to customers.

Trial began this month in the personal injury lawsuit, which is being heard by a state court in Nevada.

Plaintiff, a married mother of three, is seeking not just compensatory but punitive damages in the case. The basis for this is the fact that the chain store knew of at least 33 other slip-and-fall incidents at other locations across the country – all occurring in the outdoor garden supplies sales areas.  Continue reading

A college student in Wyoming nearly died after a malfunctioning furnace in her rental apartment seeped carbon monoxide (CO) into her unit. Rushed to the hospital after a maintenance worker discovered the problem by chance, she now suffers lifelong neurological damage. freeimages.co.uk medical images

In Lompe v. Sunridge Partners, the woman sued the owner of the apartment as well as the property manager, alleging these entities had been negligent in their duty to ensure the rental unit was in reasonably safe condition for residents.

At trial, she was awarded a total of $28.5 million – which included $25.5 million in punitive damages. The majority of that was apportioned to the property manager, though the out-of-state property owner was still liable for $3 million in total worth of compensatory and punitive damages. On appeal, the U.S. Court of Appeals for the Tenth Circuit drastically lowered that amount. First, it determined there wasn’t enough evidence to show property owner should be liable for punitive damages. Second, it reduced the amount of punitive damages against the property management company from $22.5 million down to $1.95 million.  Continue reading

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