March 15, 2015

Brown v. Jacobs - Duty to Warn in Third Person Assault Case


While our laws generally seek to avoid punishment of one person for the actions of another, there are some exceptions, particularly as it relates to a failure to protect or warn someone from a known or foreseeable danger.
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As injury lawyers, we see this a lot in premises liability law, where, say management at an apartment complex failed to install working locks, which in turn allowed dangerous intruders to gain access. There have been other cases of negligent security against bars or nightclubs that failed to hire adequate crowd control to keep everyone safe, and someone was injured in a fight.

More rarely, there are cases against individuals for failure to warn of a danger posed by another individual, but usually, those cases only succeed when knowledge is clearly established and the danger was clear and specific.

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March 12, 2015

Kallal v. CIBA Vision Corp. - Contact Lens Litigation Ends


When manufacturers of products are notified of an issue with their merchandise, whether it's an inherent danger or failure of the product to work as intended, the company has a duty to notify the public. In some cases, a recall will be issued.
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Recalls in and of themselves will not excuse a company from liability for harm the product causes - even if the injury or harm occurs after the announcement of the recall. However, neither is a recall proof positive of injury. Plaintiffs still have to prove causation.

In the case of Kallal v. CIBA Vision Corp., defendant conceded it had produced and sold a defective product - contact lenses - and it had even issued a huge recall of those lenses in 2007. However, defense argued plaintiff had no grounds on which to stake an injury claim because there was no proof he'd used the defective contacts and his only proof of defect was the recall.

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March 9, 2015

Sutherland v. DCC Litig. Facility, Inc. - NC Breast Implant Injury Case Remanded


A woman who underwent breast implant surgery in North Carolina more than a quarter century ago and allegedly suffered serious injury as a result will finally have the opportunity to take her case to trial. womanwalking.jpg

While it's true that litigation can seemingly drag on in some cases, this one is exceptional in the amount of time it's been pending, and there are a lot of reasons for that.

At its core, Sutherland v. DCC Litig. Facility, Inc. is a product liability case wherein plaintiff alleges the silicone implants she received were defective and inherently dangerous and the maker of those devices failed to warn her of that danger. She reportedly suffered problems that included vomiting, balance problems, swelling of the gallbladder and uterus, edema, skin rashes, painful knots in the body and chronic pain.

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March 6, 2015

Wadeer v. N.J. Mfrs. Ins. Co. - Recovery of Damages for "Phantom Vehicle" Accident


Uninsured motorist coverage in North Carolina provides a way to recover damages sustained in an auto accident when the at-fault driver doesn't have insurance. (In cases where the driver does have insurance, but it's not enough to cover the damages, the type of coverage sought is underinsured motorist coverage.)
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These policies do cover hit-and-run accidents, where one vehicle strikes another and the at-fault driver is never identified or located. However, "phantom" vehicle situations are tougher.

These are cases in which one driver causes another to leave the roadway, but there is never an actual impact and the at-fault driver does not stop. It is not necessary for the unidentified vehicle to make contact with yours in order to collect coverage. However, it's likely the insurance company will challenge your claim to coverage, particularly if there were no other witnesses to the incident.

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March 4, 2015

Grebing v. 24 Hour Fitness - Waivers of Liability as Defense


Waivers aren't just for parasailing and white water rafting. A growing number of gyms, spas and other facilities that might otherwise be deemed "low risk" are requiring patrons to sign a waiver agreeing to forfeit their right to legal action in the event of injury - even when the facility is unsafe or the staff negligent.
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There are numerous misconceptions when it comes to liability waivers and releases. For a long time, there was the notion that waivers were not worth the paper upon which they were written. This is not true, as liability waivers can indeed limit the degree to which a plaintiff can collect damages for negligence, if not totally eliminate it in some cases.

However, neither is it true that liability waivers offer total protection to all service providers and facilities under every circumstance. Some of the limitations of waivers that can adversely affect their effectiveness include failure to adhere to certain language requirements, the existence of gross negligence, injury to a non-signing spouse and injuries involving children.

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March 2, 2015

Ratledge v. Purdue - Medical Malpractice Claims Require Expert Witness


The importance of a qualified expert witness in a medical malpractice claim cannot be understated. Without it, the case will fall apart, and the claim will never make it to the trial phase.
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This is not something a victim of medical malpractice should have to worry much about, so long as he or she has hired an experienced injury lawyer. Seemingly minor technical mistakes have the potential to cause an entire case to be dismissed, which is why it's imperative for plaintiffs to choose their legal team carefully.

An example of how things can go wrong was recently seen in the case of Ratledge v. Purdue before the North Carolina Court of Appeals. This was a case in which a college baseball player reportedly suffered permanent nerve damage in his arm as a result of a surgeon's error, yet has forever lost the opportunity to seek compensation for this mistake due to a legal oversight regarding the expert witness.

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February 27, 2015

Monfore v. Phillips - $1M Medical Malpractice Verdict Affirmed


Federal appellate court justices for the Tenth Circuit issued a clear warning to defendants who argue for more time in the wake of last-minute settlement deals wrangled by co-defendants to avoid trial: Don't count on it.
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In Monfore v. Phillips, a doctor was accused of medical malpractice - alongside several other physicians. As often happens in these cases, defendants all presented a united front as the litigation wore on. There are, of course, many benefits to this, such as reduced costs by pooling resources.

However, it's quite common for litigation to end in settlement agreements prior to trial, and it's not unheard of for these developments to occur even on the eve of trial - or during trial. So when every other defendant broke rank on the united front and struck a deal with plaintiff just before trial, the sole remaining defendant doctor claimed he had been blindsided and needed more time to develop a new legal strategy, one that would have pinned the blame on his former co-defendants.

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February 26, 2015

Needham v. Price - Parental Immunity Doctrine Won't Bar NC Child Injury Claim


The parental immunity doctrine is a long-standing legal principle holding that minor children can't sue their parents for tort-related claims, and parents can't sue their children either. The general idea is to avoid undermining parental authority and control over his or her children, and also to maintain the peace of the family unit.
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Most courts adhere to the 1891 Mississippi Supreme Court ruling in Hewlett v. George in which it was found so long as a parent is under obligation to care for the child, the child is under the reciprocal duty to aid, comfort and obey. Criminal laws will provide children protection from parental wrongdoing or violence, the theory goes.

But, there are many exceptions to this doctrine. It's not an issue that comes up often, but it did recently arise in the North Carolina Court of Appeals case of Needham v. Price, where it is alleged willful and malicious injury was caused. In those cases, parents cannot expect immunity, and that's how the appellate court ruled in overturning a previous summary judgment favoring defendant father.

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February 25, 2015

Olatoye v. Burlington Coat Factory - NC Slip-and-Fall Case to Continue


The North Carolina Court of Appeals reversed a summary judgment favoring the defendant in a slip-and-fall case at a large box chain store a few years ago.
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The trial court had granted the favorable ruling to the store, but on appeal, plaintiff argued genuine issues of material fact existed that precluded such an early finding, and the appellate court agreed.

Although trial court judges can grant a favorable ruling to one side or another prior to trial, it almost always must be that the claims are defeated or proven as a matter of law. Where central issues of fact are still in dispute, those are matters that must be parsed during trial.

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February 23, 2015

Study: Child Toys Cause Injury Every 3 Minutes in U.S.


An alarming new study indicates injuries caused by children's toys is a fast-growing problem. In fact, the number of toy-related injuries has shot up by nearly 40 percent since 1990, according to the latest edition of Clinical Pediatrics.
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With more than 3 million children treated in hospital emergency rooms for toy-related injuries over the course of more than a decade, that breaks down to one child every 3 minutes. Study authors say that is in fact a low estimate because it does not include the number of children who seek treatment in urgent care centers, doctor's offices or not at all.

It also doesn't encompass the number of children who died as a result of toy-related injuries, which according to the U.S. Consumer Product Safety Commission occur most often in association with small-part choking hazards, balloon asphyxiations and riding toys, such as push scooters.

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February 21, 2015

McClellan v. I-Flow Corp. - Pain Pump Lawsuit Revived


When we are prescribed a medication or treatment, we have the right to presume those products or drugs are safe when used as intended, and that any inherent risks will be disclosed. shoulder1.jpg

Unfortunately, far too many pharmaceutical companies are in a great rush to get their products on the market in order to turn a profit without thoroughly testing to ensure consumer safety.

One such example has been seen with regard to so-called "pain pumps." These devices were created with the intention of speeding the healing process by delivering a direct dose of medication (usually painkillers) into areas where surgery had recently been conducted. However, problems have arisen in cases where the pain pumps were inserted directly into the joint space. Not only does it allegedly slow one's recovery, it could potentially cause permanent injury in the form of chondrolysis.

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February 19, 2015

Eriksson v. Nunnink - Equine Injuries Compensable Under Limited Circumstances


Horses are beautiful, stoic creatures to which many people are understandably drawn. However, they can also, by virtue of their size and nature, be very dangerous animals. In some cases, contact with horses or involvement in equestrian activities can result in serious injury or death - even in a fairly organized setting.
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Succeeding on a claim of liability for horse-related injuries in North Carolina is difficult because of the provisions in Chapter 99E of the North Carolina General Statutes. This is also sometimes referred to as the "Equine and Farm Animal Activity Liability Act."

Basically, the law states owners and sponsors of activities can't be held liable for injury or death of a participant that results from the inherent risks of horse-related activities. Inherent risks are defined as dangers or conditions deemed an integral part of engaging in equine activity. So if a horse is startled by a sudden movement, sound or activity and kicks you, resulting in injury, that may not be compensable because horses are known to behave unpredictably to such stimuli, so it would be considered an inherent risk.

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February 17, 2015

Bitgood v. Gordon Greene Post of Am. Legion - Premises Liability for Third-Party Attack


Victims of an intentional, criminal assault may be entitled to collect damages from the owner of the property where the attack occurred in certain circumstances under premises liability provisions of civil law.
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This was the case in Bitgood v. Gordon Greene Post of Am. Legion before the Rhode Island Supreme Court. The underlying incident involved a bar fight that started inside and spilled into the parking lot.

The court did apportion some comparative negligence to plaintiff, but still affirmed his award of $543,500, which was reduced relative to plaintiff's own role in the incident. South Carolina follows similar guidelines with regard to comparative negligence. The only rule is plaintiff's negligence can't exceed that of defendant's. This is referred to as a 51 percent bar - meaning if plaintiff's own negligence is calculated at 51 percent, he or she is barred from collecting damages.

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February 14, 2015

SC Supreme Court: Med-Mal Indemnity Action Barred by Statute of Repose


A recent ruling by the South Carolina Supreme Court regarding a medical malpractice indemnity action found such actions must adhere to the applicable statute of repose.
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What this means is hospitals or other health care providers who settle (or lose) patient claims for medical malpractice compensation can't turn around and pursue indemnity/recompense from a previously unnamed defendant without any sort of time bar.

This case doesn't directly impact the patient, who received his compensation for damages years ago. However, it could prompt medical malpractice defendants in the future to more vigorously assert liability of unnamed third parties prior to a settlement/verdict. If complaints aren't timely amended to include those defendants in some instances, that could jeopardize plaintiff's opportunity to collect total damages.

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February 11, 2015

Ramseyer v. Dalisky - $40 Million Birth Injury Litigation Underway


At first glance, the 7-year-old boy appears healthy, with bright blue eyes, long limbs and blondish hair. But his parents say the depth of his disabilities are still being discovered, as each developmental stage brings additional challenges.
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Suffering from cerebral palsy, he will likely need a brace on his right leg for the rest of his life. His frontal lobe - the part of his brain that aids in socialization, decision-making and emotions, as well as portions of the brain that control motor skills, hearing and vision - sustained 20 percent damage. The cause, his parents allege in their $40 million lawsuit, was a lack of oxygen at birth caused by OBGYN's failure to appropriately respond to clear fetal distress.

While $40 million may seem a staggering amount, it's worth noting the brain damage is permanent, and he will likely require ongoing care the rest of his life. And his injuries, according to plaintiffs in Ramseyer v. Dalisky, were 100 percent preventable.

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