April 10, 2015

Limones v. Lee County School District - Automatic Defibrillator Responsibility in Schools

The Occupational Health & Safety Administration reports an estimated 460,000 people in the U.S. die of sudden cardiac arrest every year. Of those, nearly 10,000 are children and many have no prior sign of heart disease.
That is more than the number of people who die from guns, breast cancer, cervical cancer, motor vehicle accidents, Alzheimer's disease, suicide, prostate cancer, house fires and HIV - combined. However, having an Automated External Defibrillator nearby when someone suffers from sudden cardiac arrest can increase the survival rate by almost 70 percent. It's required equipment for firefighters and paramedics.

Nineteen states - including South Carolina - require it in schools. (North Carolina is not among those.) Some even require them in all government buildings, health clubs and other facilities, and "Good Samaritan" laws have been passed in order to protect people who try to use them on someone who may be dying in order to encourage swift action.The chance of survival declines 10 percent for every minutes defibrillation is delayed. Meanwhile, the average response times for first-responders is 8 to 12 minutes nationally.

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April 8, 2015

Johnson v. American Towers - Cell Companies Not Liable for Third-Party Attack in South Carolina

In general, courts do not hold one person or entity responsible for the negligent or criminal actions of another. iphone1.jpg

But of course, there are always exceptions. In civil cases, sometimes the courts will allow an entity or person who owes a special duty of care to a victim and who failed in that duty, thereby allowing a third party to take advantage, to be held responsible. These cases require very specific criteria to be met. Usually, we see it in premises liability cases where a landlord or nightclub owner or school owed a duty to tenants/patrons/students to protect them and failed to secure adequate security, resulting in third-party violence (rape, assault, etc.).

In the South Carolina case of Johnson v. American Towers, LLC., reviewed recently by the U.S. Court of Appeals for the Fourth Circuit, plaintiff made a novel assertion regarding a third-party attack. Injured plaintiff accused a cell phone company of negligence after a prison inmate, using a contraband cell phone, ordered an attack on victim, a prison guard, at the guard's home. The guard was shot multiple times at the behest of this prisoner.

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April 8, 2015

Golnick v. Callender - Proof of Injury Cause as Important as Crash Cause

In any injury case, establishing the negligence of the other party is often a key issue in obtaining compensation. But one cannot overlook the requirement to prove the injuries alleged were proximately caused by the defendant, or at least substantially worsened as a result of defendant's negligent actions.
This is especially important for plaintiff's who have pre-existing health problems or who have endured a subsequent injurious accident, as defendant will almost certainly argue against proximate cause.

That was the case in Golnick v. Callender, an injury lawsuit before the Nebraska Supreme Court. Here, defendant actually admitted negligence in causing a head-on collision with plaintiff's vehicle, though he denied the assertion that he had been texting when he crossed the center line to avoid stopped traffic ahead. However, defendant still prevailed in this case because plaintiff was unsuccessful in proving his injuries were proximately caused or substantially worsened as a result of this particular crash.

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April 4, 2015

Hodson v. Taylor - Paralyzed Swimmer Can Sue Owners of Boat and Lake

Boating accidents in North Carolina inevitably rise as the weather warms and more people take to the water. The North Carolina Wildlife Resources Commission reports the number of boating accidents has hovered around 155 the last several years, while fatalities have ranged from 21 to 25 between 2009 and 2012. Additionally, another 100 or so were injured and required medical attention.
July is the peak month in which accidents occur, with most fatalities and serious injuries attributed to a fall or jump overboard.

That's exactly what happened to plaintiff in Hodson v. Taylor, a teen who was on a private lake in a boat owned by a friend's parents. The teens were unsupervised and consuming alcohol, according to court records, when he jumped into the murky lake and struck the shallow bottom, rendering him paralyzed. He hadn't realized that part of the lake would be so shallow. There were no warnings, and they had stopped several times earlier at different locations to swim with no issues.

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April 2, 2015

Child's Brain Injury Prompts Recall of South Carolina Elevators

The catastrophic brain injury suffered by a 10-year-old boy who was crushed in an elevator has prompted the South Carolina-based elevator distributor to recall about 240 of the machines. elevator.jpg

According to the Consumer Product Safety Commission, the Elmira Hydraulic elevators, installed mostly in homes, have been cited in three reports of elevator injuries - including this one, sustained by a child visiting the state from Maryland. The recall of Coastal Caroline Elevators (formerly Seaside Elevator) encompasses all models distributed through residential home builders (including DRHorton) in South Carolina from January 2006 through December 2009. The reportedly defective elevators were in the price range of $16,000 to $25,000.

According to the recall notice, the elevator can operate while the gate is open, which puts riders at crushing hazard. The residential hydraulic elevators were installed in homes with numerous floors, and they have a manual, accordion-style gate door. The label "Cambridge Elevating" is on the button panel. Consumers are instructed to immediately stop using the machines and contact the distributor for a free repair.

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March 31, 2015

Asheville Birth Injury Lawsuit Against Doctor With History

The North Carolina Medical Board has launched an investigation of an obstetrician in Asheville who oversaw three home-birth deliveries in which all three babies died.
As it turns out, the Asheville Citizen-Times reports, that same physician was the subject of a 2007 medical malpractice lawsuit stemming from an earlier serious birth injury.

The older civil lawsuit stems from a birth in which the child allegedly suffered permanent disability in one of her arms due to decisions made during her birth at a local hospital. The original complaint indicates the girl was born in October 2005, and that her mother was in labor for far too long. The doctor should have initiated a Cesarean section, the lawsuit alleged, but he failed to do so.

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March 30, 2015

Anderson DUI Wrongful Death Lawsuit Filed Against Driver, Bars

A civil lawsuit filed by the family of one of three youths killed in a deadly DUI accident in Anderson late last year names not only the alleged drunk driver, but also the establishment that reportedly served him alcohol.
The 17-year-old crash victim was killed in the November 2014 wreck, along with a 22-year-old man from Greenville and a 20-year-old woman from Iva. Additionally, the 12-year-old sister of the 17-year-old decedent was critically injured.

The families of the other victims have also joined the lawsuit, which alleges at least two bars served alcohol to the suspect driver in the hours before the fatal crash. Relying on the Dram Shop law, plaintiffs alleged the bars violated state law when they served alcohol to a person who was clearly intoxicated.

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March 26, 2015

Book v. Voma Tire Corp. - Faulty Tire Lawsuit to Proceed

A state supreme court has granted approval for a defective tire lawsuit to proceed in state court against one of China's largest auto parts manufacturers.
The case stems from severe injury suffered by a teen worker when a reportedly defective tire exploded at his father's auto repair shop.

In Book v. Voma Tire Corp., the Iowa Supreme Court flatly rejected the claim by Doublestar Dongent Tyre Company that it could not be sued in state court because the company didn't operate in that state -- its tires were shipped through a distributor in Tennessee.

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March 24, 2015

Lemaire v. Covenant Care - Nursing Home Abuse Fine Reduced

We expect when we entrust the care of our loved ones to a nursing home facility, those staffers will treat them as their own. Unfortunately, that is often not the case, and elderly, vulnerable persons are subjected to neglect, over-medication and sometimes even abuse.
In North Carolina, there is a detailed list of resident rights, as put forth by the state Division of Aging and Adult Services. The list is long, but essentially gives patients the right to be treated with consideration, personal dignity and respect, to receive appropriate care and treatment that complies with all state and federal laws, to be free of physical and chemical restraints and to maintain personal privacy with regard to medical records and personal communications.

Violations of these and many other rights can result in stiff fines issued by the state. The North Carolina Division of Health Care Service Regulation tracks these fines and reports that since 2006 in Mecklenburg County, there have been 23 state-issued fines (sometimes to the same facility) totaling $142,700 paid by area nursing homes. This doesn't account for all fines issued, as in some cases, the fines were rescinded when the facility complied with certain requests.

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March 21, 2015

Uriell v. Regents of UC - $550K Lawsuit for Failure to Diagnose

A California appellate court recently upheld a $550,000 medical malpractice verdict for the wrongful death of a woman whose doctor failed to timely diagnose her with breast cancer.
The cancer was reportedly already in the later stages when she scheduled her first appointment for a small lump. But the doctor, after reviewing a mammogram and an ultrasound, indicated the patient had benign cysts and should simply cut back on caffeine. The patient, with a long familial history of fatal breast cancer, returned 18 months later with other symptoms. By then, the cancer was so far progressed, there was not much treatment could do. She died little more than a year later.

Her family sued the doctor and the hospital in Uriell v. Regents of UC, arguing defendant doctor breached the applicable standard of care for declining to order an MRI or biopsy after that first appointment, given the patient's genetic propensity to develop the disease.

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March 18, 2015

Jimenez v. Applebee's - Open and Obvious Doctrine Defeats Restaurant Injury Lawsuit

In a case that has gained national attention in recent days, the New Jersey Superior Court has ruled in favor of defendants in a restaurant injury case in which a man said he was badly burned while bowing over a hot plate to pray before his meal.
The man argued he suffered burns on his eye, face, neck and arms after hot grease from his fajita "popped" in the air while his head was bowed over the food. Although he indicated the plate was "sizzling" as it was served to him, he contended the waitress never warned him the plate was hot and he suffered serious and permanent injuries as a result of coming in contact with a hazardous and dangerous condition - i.e., a hot plate of food.

However, the appellate panel in Jimenez v. Applebee's affirmed trial court's summary judgment for defense, finding neither the restaurant nor its employees were required to warn patrons of a danger that is open and obvious. The patron could clearly see/hear the food being served was extremely hot, and chose to put his face close to it anyway.

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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.
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.
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.)
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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