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.
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.
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.
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.
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.
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.
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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February 8, 2015

Key v. Diamond International Trucks - $3.5 Million Injury Verdict Upheld

When serious injury occurs at work, employees are typically entitled to workers' compensation benefits. These funds are covered by the company's insurer and it is not required for worker to prove negligence or fault.
If an employee collects workers' compensation, further legal action against an employer or co-worker is usually barred under the exclusive remedy provision of state law. Although these benefits do cover medical expenses and a portion of lost wages, they will not compensate a worker for pain and suffering. Often, these benefits do not cover all the worker's damages. Depending on the circumstances, there may be an opportunity to pursue third-person litigation. This assumes another party - not the employer - was responsible or played some role in the incident that resulted in injury.

This was the case in Key v. Diamond International Trucks, where a truck driver in Missouri secured a $10 million judgment (later reduced to $3.5 million based on a finding of comparative fault/his own negligence). Although the judgment was appealed by defendant, it was recently affirmed by the Missouri Court of Appeals for the Western District.

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February 5, 2015

Bicyclist Challenges Ticket for Refusing to Stay Right - And Wins

South Carolina bicycle law mirrors many states with regard to bicyclists' rights and responsibilities as shared users of the road.
Firstly, Section 56-5-3420 states cyclists must be granted all rights and are subject to all duties applicable to a driver, except where the law expressly states otherwise. Further, Section 56-5-3430(A) states that "as practical," cyclists shall ride as near to the right side of the road as possible.

It's that "as practical" section that many cyclists base their decision to ride in the middle of the lane. The reason is because when traffic is allowed to pass a cyclist who is to the right of the road, there is greater potential for injury to the cyclist. This is why absent a bicycle lane, many cyclists opt to ride in the middle of the road, with motor vehicles having the option to pass either using the left lane or crossing the center line when there is no oncoming traffic.

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February 2, 2015

Myers v. City of West Plains - Lack of Parental Supervision as Bar to Damage Recovery

An 11-year-old boy who suffered serious and permanent damage to his knee after falling on glass shards that littered a local park is entitled to $425,000 in damages, affirmed a Missouri appellate court recently.
The fact that the child's mother was not present at the park to supervise at the time of the incident did play a role in reducing the park's liability from 100 percent to 85 percent. However, despite the city's objection, appellate court ruled trial court properly gave an instruction to jurors on the matter of lacking parental supervision as a "stray issue" that should not greatly sway the outcome of the case.

Both sides in Myers v. City of West Plains had agreed prior to trial the lack of supervision hadn't played a significant role in the fall, and likely would not have prevented it from happening. Yet, during the voir dire process of vetting jurors, many said they would be prejudiced in finding a city liable for injury to an unsupervised child. Thus, the court gave an instruction to jurors regarding how such information should be weighted.

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January 31, 2015

Martin v. Dematic - Wrongful Death Lawsuit to Proceed

In any civil court case, there are strict deadlines by which certain things have to be done - from filing to discovery to trial.
Courts do have some degree of discretion, but usually, if either side misses a deadline without just cause, it could mean severe repercussions, up to and including dismissal of the case or judgment favoring the other side.

One of these rules that holds fairly standard across the board is that plaintiffs have to name all defendants in a given action prior to the expiration of the statute of limitations. The statute of limitations is the amount of time one has to file a claim before the opportunity is forever lost.

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January 30, 2015

Carolina Residents Injured by Faulty Exercise Equipment

Many people will make a New Year's resolution to begin exercising more. Exercise is supposed to improve your health. For some people, however, using exercise equipment can actually lead to serious or even fatal injuries. These problems occur when the exercise equipment malfunctions and the user gets hurt as a result. elliptical-trainers-489121-m.jpg

If faulty exercise equipment causes you injury, you may be able to make a defective product claim. A Greenville personal injury attorney can help you understand your legal options and pursue compensation from those responsible.

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January 22, 2015

Sadler v. PacifiCare - Actual Injury Established in Medical Error Case

In the case of Sadler v. PacifiCare of Nev., Inc., there was little question that health care providers made mistakes. They had reportedly engaged in unsafe injection practices during certain procedures involving patients, and as such, they had put patients at risk of contracting highly contagious, serious blood-borne illnesses.
But when the patients sued in a personal injury action, defendant countered they had not standing because they had not proved "actual injury."

It is true that with any negligence action, plaintiffs have to show:

  • The existence of a duty of care owed by defendant to plaintiff;

  • A breach of that duty of care;

  • The breach proximately caused injury to plaintiff;

  • Plaintiff's injury was/is compensable.

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January 20, 2015

Winter is the Season for Carbon Monoxide Injuries in North Carolina

A North Carolina teenager has been killed and the teen's father has been hospitalized as a result of carbon monoxide poisoning. According to WRAL, the incident likely occurred because the house was being heated by an improper heating device that was not meant to be used indoors. The device created too much carbon dioxide, resulting in the injuries and fatality. toxic-smoke-1394828-m.jpg

Carbon dioxide is an odorless gas that cannot be seen. An Anderson injury lawyer knows that it is also the top cause of poisoning deaths within the United States. While many different appliances can produce carbon dioxide, heating systems are one of the leading causes of poisoning due to this gas. During the winter season, it is important to know the risks of carbon monoxide and to do everything possible to avoid the dangers.

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January 19, 2015

Wannall v. Honeywell, Inc. - Mesothelioma Claim Standard Shifts, Affecting Cases

In asbestos and mesothelioma litigation, there are varying standards across the country on what courts will accept as proof of causation. carrepair.jpg

While it's generally accepted that exposure to asbestos causes mesothelioma, asbestos and lung cancer, what's usually in dispute is the level of exposure necessary to result in illness. Specifically, the question arises to what extent exposure to a defendant's certain product caused or contributed to plaintiff's or decedent's illness and/or death.

It's also important to note these standards are somewhat fluid and prone to change as the medical understanding and legal theory on this complex issue evolves.

We saw this recently in the case of Wannall v. Honeywell, Inc. before the U.S. Court of Appeal for District of Columbia Circuit.

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