November 30, 2014

DeCormier v. Harley Davidson - Enforceability of Liability Waivers

If you have ever participated in a high-risk activity - think sky-diving or rock-climbing - you were almost certainly asked to sign a "waiver of liability," releasing the organizer and/or property owner from any claims of negligence relating to that activity.
These waivers, also known as "exculpatory clauses," are becoming increasingly popular, even for participation in seemingly innocuous activities, such as a gym class or a charity 5K.

In South Carolina, these agreements may be enforceable as valid private contracts, but only if the language is sufficiently specific and the negligence asserted does not stem from a reckless or intentional act by defendant. It's also worth noting the South Carolina Supreme Court, in its 2003 ruling in Fisher v. Stevens, established exculpatory contracts are not favored by the law, and will be strictly construed against the party relying thereon.

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November 28, 2014

Chavez v. Cedar Fair - Amusement Park Injury Weighed

Carnivals and amusement parks have come under intense scrutiny in recent years, as injuries mount and the industry remains poorly-regulated.
Although the U.S. Consumer Product Safety Commission oversees how amusement park rids are manufactured, there is no federal agency in charge of regulating how they are set up, maintained are operated. This is left to the states, and the rules vary widely.

North Carolina has stiffer regulations than most. N.C. Gen. Code. 95.111.1-18 provides guidance on how amusement devices are designed, constructed, assembled, disassembled, maintained and operated so as to prevent injuries.

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November 24, 2014

Report: Bad Nursing Homes Get Billions in Federal Loan Breaks

Before 1965, owning and operating a nursing home was seen as risky business. That's because prior to then, there was no Medicaid, meaning families had to subsidize the care of infirm, elderly loved ones on their own. That meant there was no guarantee these centers would be consistently paid. abuela.jpg

It was in this climate legislators passed a measure that would make it easier for nursing homes to get decent rates on loans for everything from new construction to remodeling to obtaining equipment. This program, under the National Housing Act of 1959, allowed for reduced interest rates on loans that were federally-guaranteed by the Department of Housing and Urban Development.

Today, the nursing home industry is booming, with for-profit centers accounting for a growing percentage of the market share. Even though there is little need to continue offering the reduced, federally-backed interest rates to these centers, the program persists. But what's worse, according to a recent investigation by The Center for Public Integrity, nursing homes that received an abysmal one-star federal rating for care quality apparently have no problem securing these advantageous rates - even when those poor ratings persist for years.

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November 21, 2014

Wrongful Death Lawsuit Against SC Nursing Home Advances

Some contractual agreements--between landlords and tenants, employer and employee contracts, or in a nursing home residential agreement--will include an arbitration agreement which is intended to determine how a case should be resolved in the event of a dispute. Mandatory arbitration clauses have been criticized for limiting a victims' right to seek redress in a court. In some cases, an arbitration clause will also identify a predetermined arbiter, who already knows the contracting defendant. The results can be unfair and unfavorable to plaintiffs who have been wronged.


In a recent case, the U.S. Supreme Court has allowed a woman to proceed with a wrongful death lawsuit against a nursing home, despite an arbitration agreement she signed on behalf of her sister. After her court case was denied at the state level, the plaintiff brought her case to the Supreme Court. According to reports, the plaintiff is allowed to proceed with the wrongful death case, even after signing an arbitration agreement and financial documents on behalf of her sister who resided at a care facility in Florence, South Carolina. The plaintiff filed a wrongful death lawsuit after her sister died under the care of the nursing home.

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November 18, 2014

Student Safety Advocates Urge Construction of Pedestrian Bridge

College campuses can be dangerous for cyclists and pedestrians, with busy traffic, high-volume crowds at intersections, and the potential risk of drunk or distracted drivers. Now, South Carolina State University students are taking matters into their own hands, urging the South Carolina Department of Transportation to build a pedestrian bridge near a student housing complex. According to reports, the initiative has been underway since an SC State senior was struck by a vehicle and left paralyzed four years ago. After years of advocacy for the bridge project, the project has finally been approved by the South Carolina Department of Transportation.


Students began pursuing the initiative in 2011 with the goal of improving pedestrian safety and connecting walking routes for students. Though it has taken nearly four years of advocacy, the university has finally begun preliminary stages of engineering the pedestrian bridge. Safety advocates on campus believe that the project will help keep students safe, allowing pedestrians to pass over the bridge rather than navigate the traffic on the busy roads below. Due to the heavy foot and vehicle traffic, many pedestrians do not wait for a walk sign to cross the street. Cars that speed along the road can also create additional dangers for pedestrians.

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November 16, 2014

Elevators Pose Hidden Threat of Injuries

Parents already worry about their children--young or old. From making sure they have the proper nutrition and education, to keeping them out of harm's way, parents never seem to stop worrying about the well-being of their children. Whether at home, on the playground, or in a commercial area, you want to know that your children are safe. Now safety advocates are warning parents about another possible danger for their children--elevators. Experts warn consumers and government agencies about the treat of In-home elevators, especially older models, which are proving a deadly hazard for children.

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According to CBS News reports, kids are frequently the victims of catastrophic and fatal accidents caused by elevators. In a recent case, a family rented a beach house in South Carolina and a 10-year-old boy suffered catastrophic and permanent injuries. He is now completely paralyzed and suffered debilitating brain injuries because of an accident. Another 3-year-old suffered when an in-home elevator failed to stop at the floor. The Consumer Product Safety Commission (CPSC) reports that one of the problems with in-home elevators is that they are not as regulated as commercial elevators and do not have the same safety features. Within a 2-year period, there were 1,600 individuals hurt on in-home elevators. According to reports, the majority of the deaths and serious injuries occurred when children were trapped in the gap between the elevator's exterior and interior doors.

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November 13, 2014

Zylstra v. Boise State University - Student Wrestler Head Injury Case

Football players have become the unfortunate poster child for sports-related head injuries in recent years, with a flood of lawsuits filed by professional players on down to those in the Pop Warner-age leagues.gym.jpg

Certainly, football can be a dangerous sport, and reports one of the highest rates of head injuries for any athletic activity. But it's not the only one. As the recent case of Zylstra v. Boise State University highlights, wrestling too can be hazardous to participants - especially when coaches fail to recognize possible head injury symptoms or take appropriate precautionary measures.

A 2010 study published in the Western Journal of Emergency Medicine researched numbers and characteristics of wrestling injuries among male athletes in the U.S. between 2000 and 2006. Culling figures from the National Electronic Injury Surveillance System, study authors found 173,600 emergency room visits involving wrestlers between the ages of 7 and 17. Of those, 91 percent involved wrestlers 12 to 17, with an injury rate in that group of nearly 30 injuries per 1,000 wrestlers. Those included sprains, fractures and bruises, but the vast majority of injuries (75 percent) occurred above the waist (including to to the head).

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November 11, 2014

May and Hill v. Melrose South Pyrotechnics, Inc. - Trial Slated in Fireworks Tragedy

Trial is slated to begin this month in the case of a 2009 explosion of a truck containing fireworks on Ocracoke Island that killed four workers and seriously injured a fifth.
Earlier this year, plaintiffs in May and Hill v. Melrose South Pyrotechnics, Inc. won a substantial victory at the North Carolina Court of Appeals when the court declined to dismiss the case simply because defendant labeled decedent's as employees. The court found such a ruling would be premature. That will be decided as a matter of fact by the jury, as opposed to being decided as a matter of law by a judge prior to trial.

The question of the relationship between the workers and defendant pyrotechnic company is an important one because if they were employees, as defendant asserts, any claims for recovery would be limited to workers' compensation law. However, if the workers were independent contractors, as alleged by plaintiffs, they are not bound by the exclusive remedy provision of workers' compensation benefits.

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November 8, 2014

Roe v. Bibby - Homeowner Had No Duty to Warn of Child Sex Abuse Risk

The South Carolina Court of Appeals recently affirmed a trial court's grant of summary judgment favoring a homeowner who did not warn the family of neighboring children who visited of her husband's prior child sexual abuse conviction or propensities.
The decision in Roe v. Bibby was split, with Justices J. Konduros and J. Williams dissenting. The fact that the ruling was not unanimous indicates the South Carolina Supreme Court could very well reach a different conclusion, should it accept review of the case.

Although the underlying allegations are criminal in nature, two separate civil lawsuits - one against the alleged molester/husband and the second against his wife - are rooted in legal theories of negligence and premises liability. Plaintiffs obtained a default judgment against the alleged molester for assault, battery, false imprisonment and infliction of emotional distress (he did not respond at all to the litigation). However, his wife insisted she owed no duty of care to the children, and therefore could not be held liable. The courts agreed.

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November 6, 2014

Aycock v. R.J. Reynolds Tobacco Co. - Product Liability Litigation

North Carolina is the site of many tobacco-based industries, including giants Lorillard (Greensboro) and R.J. Reynolds (Winston-Salem). While these industries have in some ways benefited the local economies, they have also resulted in countless people nationwide contracting serious and often fatal illnesses. What's worse, for a long time, these companies concealed the extent to which their products were harmful.
It's for this reason tobacco companies have been the subject of thousands of lawsuits from former smokers and relatives of those who died after suffering a smoking-related disease.

Just last year, the North Carolina Attorney General announced the state would be receiving a total of $211 million from tobacco companies (R.J. Reynolds, Brown & Williamson and Lorillard) for smoking-related health care costs among taxpayers.

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November 4, 2014

Lyons v. Richmond Cmty. Sch. Corp. - Disabled Student Choking Deaths at School

No parent sends their child to school in the morning thinking that will be the last good-bye.
Although parents of disabled and autistic children will encounter more difficulties throughout their day, they should never have to fear this is a possibility. When it comes to children with disabilities, school districts are expected to have health and safety plans firmly in place, with protocols clearly communicated and strictly followed.

The worst part is that when this doesn't happen, these children are poorly situated to speak out about and let their parents know when a lapse has occurred. That's why often, parents don't know there is a problem until too late.

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November 2, 2014

Zuppardi v. Wal-Mart Stores, Inc. - Slip-and-Fall Lawsuit

Slip-and-fall cases are harder to prove than you think. This is especially true in North Carolina, where not only must plaintiffs prove defendant had actual or constructive knowledge of a given hazard, they must also defend against claims of contributory negligence. tile2.jpg

Contributory negligence is the degree to which a plaintiff shares the blame for the injury in question. In most states, the damages awarded are reduced by whatever percentage of fault a plaintiff is found to share. In North Carolina, however, a finding of just 1 percent contributory negligence means you are barred from collecting anything at all.

So for example, you might slip and fall on a gob of ketchup in the grocery store. The store knew about it and failed to clean it up in a timely manner. However, the store could argue you had a duty to notice the open and obvious hazard of bright red ketchup on the floor and take precautions to avoid it. And they could win on that theory.

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October 30, 2014

77-Year-Old Woman Killed in Tragic Swamp Boating Accident

Tourists and visitors to the Southeast region may be put at additional risk if they are unaware of their surroundings or attempting new recreational activities. According to reports, a 77-year-old North Carolina woman drowned in the Okefenokee Swamp in Georgia after she fell out of a boat in the Suwanee Canal. The woman was visiting the swamp with her husband at the time of the accident. Authorities reported that the Efland woman was staying with her husband at the Laura S. Walker State Park while visiting the swamp.


Drowning and boating accidents are common along the coast and on inland streams, rivers, and lakes throughout the Southeast. According to reports, the victims' husband stopped to look at something and had turned off the engine. When he restarted the motor, the boat lurched forward, "standing on end" and they both fell backwards out of the boat. Police reports indicate that the husband tried to help his wife, but she become entangled in the boat's propeller and suffered fatal injuries. The accident occurred approximately 7 or 8 miles down from the boat basin where they launched. After initial calls for help were made, local law enforcement officials, fire and rescue personnel, as well as officers from U.S. Fishing and Wildlife Service and the State DNR responded to the scene. Though attempts were made to revive the woman, she was pronounced dead at the refuge by the Ware County coroner.

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October 29, 2014

Family Awarded $97 Million for Death of South Carolina Mayor

The family of a South Carolina mayor who was shot by a police officer has been awarded $97 million in a wrongful death case. According to reports, the mayor was shot and killed after he complained about the officer's aggressive behavior. The wrongful death verdict was considered a success for the family who tragically lost their loved one in a preventable crime. The mayor was shot in the chest with a revolver belonging to an officer in May 2011. The mayor was shot on a small dirt road and, according to local authorities, the officer still has not been charged with the crime.


The tension between the mayor and the officer grew after the mayor objected the arrest of an employee in his construction business. The family sued the officer and the town of Cottageville, alleging that it should never have hired the officer due to his checkered past and troubled employment history. An attorney representing the officer alleges that the mayor had bipolar disorder and was enraged when he confronted the officer. A defense attorney claimed that the officer only shot the mayor in self-defense.

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October 28, 2014

One Year Later: North Carolina State Fair Accident Victims Still Recovering

Victims who suffer injuries are often in recovery long after the headlines fade. The victims of an October 2013 North Carolina State Fair accident are still in recovery after being severely injured on the "Vortex" ride. While it's been a year since the accident, the family remains in recovery after suffering permanent and debilitating injuries. According to local reports, the family injured while at the state fair included a woman, her husband, their son, and their niece. Despite being released from the hospital since the accident, all of the victims are still under doctor's care.


Last October, the family arrived at the state fair to enjoy the festivities, but the night quickly turned tragic. According to eyewitnesses, the riders fell approximately 30 feet. They were initially unconscious but then regained consciousness before being taken away by paramedics. According to investigators, a key safety mechanism was tampering with, leaving victims at risk of serious injury or wrongful death.

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