August 7, 2014

King v. Bryant - NC Appellate Court Calls Medical Malpractice Arbitration Agreement Unconscionable

An increasing number of businesses - including health care providers - are including forced arbitration agreements as part of their terms of service. These agreements allow that if a dispute arises regarding the quality of the product or service, the consumer agrees to forfeit his or her right to a jury trial, and instead have the matter heard by a private arbitrator.
Our Asheville medical malpractice attorneys know that for health care providers, such agreements are seen as beneficial, not only because the awards for damages tend to be less, but the burden of proof may also be lesser. Plus, the findings of the arbitrator can be ordered to remain confidential, and no matter the outcome, doctors can often avoid being listed as malpractitioners on the National Practitioner Data Bank.

But the loss to the patient/consumer is considerable. While the agreements are routinely enforced, we are finding that when clauses are buried as "take it or leave it" agreements, buried in the fine print, and where one side has more substantial bargaining power and sophistication, these courts are granting them closer scrutiny.

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August 5, 2014

NC Court of Appeals Halts Case for Finding of Contributory Negligence

The North Carolina Court of Appeals recently affirmed a summary judgment against a plaintiff who claimed a church was negligent in the death of a parishioner who volunteered to cut down a tree limb, and died in the process.
The primary grounds on which the court affirmed the earlier ruling in McKinney v. Greater Gethsemane African Methodist Episcopal Zion Church of Charlotte was based on the principle of contributory negligence. Our Charlotte injury attorneys know that proving the plaintiff did not contribute to the injury is especially critical in North Carolina because we live in one of the few states that adheres to the strict doctrine of contributory negligence.

Pursuant to this theory, if a plaintiff or injured party is in any way negligent or culpable for the accident, he or she may not collect any damages. This is contrary to the model followed by the majority of states, which allows an apportionment of damages, based on the percentage of contributory negligence.

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August 3, 2014

Pool Drowning Litigation Gives Rise to Claims of Multiple Occurrences

A recently-released report by the North Carolina Department of Health and Human Services reveals that between 2008 and 2012, there were 138 children who died as a result of unintentional drowning in this state. It accounted for 13 percent of all child deaths in the state, making it the No. 3 cause of death for children in this time frame (preceded by motor vehicle crashes, which accounted for half of all child deaths). pool2.jpg

Our Charlotte swimming pool accident attorneys know the largest number of these incidents occur in the summer. The same is generally true across the country, when more pools are open, accessible and in use.

Adequate safety measures and supervision of children in and around the pool at all times is critical. The recent case of Fellowship of Christian Athletes v. Ironshore Specialty Ins. shows what can happen when adequate supervision is not employed. Here, apparent negligence by camp counselors and organizers resulted in the death of not one but two campers who attended a pool party and were left unattended in the pool area, despite not having the ability to swim.

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July 29, 2014

Pickett v. Cortese: Medical Malpractice and the State Review Board

Our Winston-Salem personal injury lawyers know medical malpractice cases can result in complex litigation.

doctor1.jpgPickett v. Cortese, a medical malpractice case from the state of Montana, involved a plaintiff who had her appendix punctured during what doctor's refer to as an ECRP procedure. ECRP is an abbreviation for endoscopic retrograde cholangiopancreatography, which involves placing the patient under anesthesia and inserting an endoscope/fluoroscope into the patient's mouth, thus allowing doctors to diagnose and treat conditions of the common bile duct.

In Pickett, the plaintiff alleged that the defendant was negligent in perforating her intestine, failing to discover the perforation quick enough, and not informing her that there may have been less risky alternatives to the ECRP procedure that caused her to suffer the personal injury.

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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.


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.

Thumbnail image for mommaandbaby.jpg

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.


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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