September 28, 2014

Gregory v. One Republic Home Protection - Wrongful Death Claim Denied

The verdict favoring a home warranty company, sued for wrongful death by the mother of a Greensboro man who died of carbon monoxide poisoning in his home in 2008, has been upheld by the North Carolina Court of Appeals.

The mother/plaintiff alleged the warranty company was negligent in hiring a heating/cooling company with a poor business quality record. The firm had been on probation by the North Carolina Board of smokealarm.jpgExaminers of Plumbing, Heating and Fire Sprinkler Contractors. Later, the same company was the target of a complaint alleging incompetence that nearly resulted in a customer's new home catching fire.

Our Greensboro wrongful death lawyers understand that while plaintiff sued on a host of negligence theories, including negligent retention and vicarious liability, the two at issue upon appeal were two claims dismissed prior to trial - Unfair and Deceptive Trade Practice and breach of implied warranty. The appellate court ultimately indicated the directed verdict for defendant on the UDTP claim was proper, and the plaintiff failed to properly preserve the grant of directed verdict on the breach of implied warranty claim.

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September 24, 2014

Brewer v. Hunter - Medical Records of Non-Parties Relevant in Malpractice Suit, Court Rules

A man rendered permanently paralyzed following back surgery has won a key victory in his lawsuit against the surgeon and hospital, after the North Carolina Court of Appeals affirmed a trial court's decision to allow the medical records/outcomes of other surgical patients to be considered as evidence.
Medical malpractice attorneys in Charlotte know that while the outcome of any case is going to be heavily weighted to the facts in that particular instance, the assertion of malpractice is a complex one, and by allowing a broader range of evidence, the courts gave plaintiffs an opportunity to determine whether this physician had a problematic history. This information would be relevant in a medical malpractice case, where plaintiffs have to prove a breach in the acceptable standard of care. A pattern of such breaches would strengthen the claim and potentially dampen defendant doctor's credibility.

Here, in Brewer v. Hunter et al., the patient in question first underwent thoracic spinal surgery to treat his severe back pain, leg weakness and spinal stenosis. Less than a decade later, he sought treatment from his primary care physician for many of these same issues. He was referred to a neuroscience and spine center specialist doctor after an MRI scan revealed severe canal stenosis and diffuse degenerative disease in his lumbar.

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September 20, 2014

Reed v. Malone's Mechanical, Inc., et al.: On Jury Instructions in a Personal Injury Case

Reed v. Malone's Mechanical, Inc., et al., an appeal from the United States Court of Appeals for the Eight Circuit, involves a mechanic ("Plaintiff") who was hired to help renovate a chicken processing plant. Plaintiff was employed by a contractor ("Defendant 1"), and that contract was managed by another contractor ("Defendant 2").

pipes1.jpgPlaintiff was performing work on overhead pipes designed to transport hot cooking oil to cooking equipment located in other parts of the factory. Plaintiff was diagnosing a problem with a commercial fryer when another worker ("Defendant 3") was operating a scissor lift. The worker on the lift was adjusting a 12-pound pipe saddle when it fell and landed on Plaintiff, injuring him.

Plaintiff first sued all parties except Defendant 2 in federal court under diversity jurisdiction. As your Winston-Salem personal injury lawyer can explain, for a case to be heard in federal court, it must involve either a federal question (such as the constitutionality of a statute) or have complete diversity and an amount in controversy over $75,000. In the context of a federal case, diversity means that the plaintiff and defendants are from different states. A corporation is considered a resident of the state in which it has its principal place of business, corporate headquarters, or any state in which it conducts business.

The chicken plant owner ("Defendant 4") moved for summary judgment, and the case was dismissed. At this point, Plaintiff re-filed his lawsuit against Defendant 1 and Defendant 3, claiming that the employer was negligent in failing to secure the pipe saddle, for failing to warn him that dangerous construction work was going on above him, and that it was negligent to schedule work on an overhead pipe while others were working below.

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September 19, 2014

Patterson v. Domino's Pizza, LLC: On the Agency Relationship in Civil Actions

Patterson v. Domino's Pizza, LLC, a case from the Supreme Court of California, involved an employee ("Plaintiff") who was employed by a franchised pizza restaurant operated by Defendant. Defendant hired a male employee to work as a supervisor at the restaurant. Plaintiff was hired to serve costumers at the store.

gavel22.jpgPlaintiff filed lawsuit against Defendant, alleging that her supervisor had sexually harassed her anytime they worked the same shift. She claimed that he made lewd comments and gestures and grabbed her breasts and buttocks. She asked her supervisor to stop, but he continued to harass her, according to court records.

At this point, Plaintiff informed her father, who called police. He also called corporate offices of the pizza franchise and spoke with someone in human resources. Plaintiff did not return to work for one week. When she returned, her hours had been reduced, and she quit her job. It was Plaintiff's belief that her hours were cut in retaliation for filing a complaint against her employer.

Her lawsuit contained various claims, including sexual harassment, failure to take reasonable steps to avoid harassment, and retaliation for reporting sexual harassment. She also made common law claims of negligence, assault and battery, and emotional distress. She sought both compensatory and punitive damages. As our Charlotte personal injury lawyers can explain, compensatory damages, as the name implies, are designed to compensate an injured party for any damages caused by the defendant's negligent or intentional conduct. These are the normal form of damages awarded under our legal system.

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September 15, 2014

Ainsworth v. Chandler: On Third Party Interveners in Premises Liability Cases

Ainsworth v. Chandler, a case heard in the Supreme Court of Vermont, involved a woman ("Plaintiff") who was injured at a business owned by Defendant. Plaintiff was at Defendant's electrical company when she tripped on a coil of wires that had been left in a stairway.

stairs.jpgAccording to court records, Defendant was leading her down the set of stairs when the coil of wire caught her ankle and caused her to fall. Plaintiff testified that she did not see the coil of wires prior to her fall.

Plaintiff has alleged that she suffered permanent injuries, including partial blindness, damage to her ankle, a broken tooth and painful cuts and bruises.

At the time of her accident, Plaintiff had been dating Defendant for the past six months, and her purpose for being at that location was that she was visiting her boyfriend.

Defendant filed a civil lawsuit against his liability insurance company on grounds they breached the terms of their coverage agreement by not awarding her the more than $1 million in damages she had requested. In response to this lawsuit, the insurance company denied any and all liability and counterclaimed for a declaration of noncoverage on grounds that he had breached his agreement. Plaintiff filed her lawsuit against Defendant four months later.

In her lawsuit, Plaintiff demanded over $2 million in damages and, in response, Defendant admitted to liability and conceded to the allegations in the complaint. When his insurance company learned of Defendant's admissions, it intervened in the lawsuit to protect its interests. As our Spartanburg premises liability lawyers know, a third party can intervene in an ongoing lawsuit if their interests will be substantially affected by the outcome of the pending litigation.

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September 11, 2014

Carpenter v. Kenneth Thompson Builder - Claim-Splitting Barred

Generally, most civil courts require litigants to bring all claims arising out of the same source of facts in the same civil action. When claims stemming from the same incident are filed in separate lawsuits, this is known as claim-splitting.
It's a subsidiary of the doctrine of res judicata, meaning the same matters can't be litigated twice. Essentially, courts want to make sure that cases aren't tried piecemeal, and that litigation should cease once the rights and obligations of all parties have been determined.

Our Greensboro personal injury lawyers know there may be circumstances under which the same set of facts could give rise to a separate lawsuit. For example, the claim-splitting rule doesn't necessarily restrict a later lawsuit on matters that were not relevant or at least implicitly connected to the first action. Additionally, the rule doesn't apply to a cause of action before it accrues.

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September 9, 2014

State v. Hawkins - Nursing Home Negligence by Improper Lifting

Falls suffered by nursing home patients are unfortunately all too common. These incidents result in serious injury to the patient, and the vast majority are preventable.
What's more, a fair number occur when staffers are working to lift or move a patient for one purpose or another. Our Anderson nursing home abuse lawyers know failure of nurses or aides to use proper lifting techniques will inevitably result in problems. In some cases, nursing home facilities fail to properly train or supervise staffers. Other times, it's a matter of bad policy, insufficient equipment or not enough staff. In a few cases, it's been found that staffers were simply careless, flouted the rules or, in some cases, deliberately put patients in harms' way.

This was the allegation in State of Mississippi v. Hattie Hawkins, which was recently appealed to the Mississippi Supreme Court. According to prosecutors, the reported actions of the nursing assistant in question were not only negligent, they were criminal.

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September 7, 2014

Hahn v. Walsh - Ensuring Adequate Medical Care in S.C. Prisons

Although the prison population tends to garner little sympathy, the fact of the matter is, many are locked up for non-violent crimes. Regardless of the transgression, inmates are entitled under the Eighth Amendment to receive adequate medical care while in custody.
Unfortunately, our Spartanburg personal injury lawyers know that because prisoners are isolated from their families and out-of-sight from the rest of the community, they are vulnerable to care that is deficient, resulting in unnecessary suffering and, in some cases, death.

Bringing a claim in these situations requires an attorney with extensive experience. These claims are complex as it is, but when they involve a government institution and a person accused or convicted of a crime, matters are even more complicated. While private medical firms contracted with the institution may face a claim of medical malpractice, the institution itself could be held liable if it is shown prison officials treated the inmate with "deliberate indifference to serious medical needs."

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September 4, 2014

Tattoo Ink Recall: Serious Infection Risk With Contaminated Products

Everyone who gets a tattoo (which is nearly 1 in 4 Americans today) anticipates some degree of pain in the process. Unfortunately, some are finding it more painful than others after developing painful rashes, skin infections and even blood diseases, like hepatitis C from contaminated inks and needles. tattoo.jpg

Our Charlotte personal injury lawyers understand in the wake of a tattoo ink recall in July, the U.S. Food and Drug Administration and the Centers for Disease Control and Prevention are dialing up the volume of their warnings, as more reports of serious illness emerge.

Let's start with the most recent recall. It involved inks and needles produced and distributed by a company called White & Blue Lion, Inc., a firm based in Southern California. The company voluntarily pulled its products from the shelves when it became apparent the products tested positive for pathogenic bacterial contamination. The bacteria present in these products has the potential not just to result in severe skin rashes, but also in sepsis, which is a life-threatening condition that happens when the body has an overwhelming immune response to a bacterial infection.

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September 2, 2014

BB Buggies Inc. v. Leon - $10M Product Liability Judgment Set Aside

A default judgment against the defendants in a $10 million product liability case was recently set aside by the Mississippi Supreme Court, after evidence was submitted indicated a "colorable defense," indicating the defense did not design, manufacture or distribute the product in question.
Our Anderson personal injury lawyers know that default judgments are regarded by appellate courts with scrutiny because, essentially, the defense has not presented their side of the case. Default judgments in favor of the plaintiff are typically entered when the defense fails to file an answer to the complaint within a set amount of time. Notice of the default judgment is issued, the defense has another opportunity to respond, and if they still do not, a separate hearing may be held to determine damages.

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September 1, 2014

Gregory v. Cott - Nursing Home Staffers Can't Sue Dementia Patients

One of the cruelest things about Alzheimer's disease is the way it transforms a person into someone practically unrecognizable. Someone who was once incredibly intelligent and loving becomes dull and distant. A person who was once full of life and compassion is suddenly depressed and easily agitated.
While the disease manifests itself differently among patients, one of the more common symptoms reported by caregivers is aggression and even physical violence. Most frequently, it is caregivers who endure the brunt of these violent bursts, and often sustain injuries as a result.

However, the courts have consistently held, most recently in the California Supreme Court case of Gregory v. Cott, that professional caregivers do not have the option to sue people with dementia for the physical injuries they inflict.

The reason has to do with the fact that it would be difficult, if not impossible, to prove the patient owed an initial duty to the caregiver, which proximately by breaching it resulted in injury. This is central to most injury cases. Secondly, caregivers are presumed to accept the assumption of risk when working with these patients. That is, they recognize potential violent tendencies, and should be trained with how to deal with them.

Still, these injured parties would do well to speak with an experienced personal injury lawyer in Rock Hill, as there may be other parties who might be deemed responsible. Where workers are concerned, there is always the option of seeking workers' compensation. In those claims, it will not be necessary to prove anyone was negligent. All that is necessary to prove, aside from the extent of the injury, is that it occurred during or in the course of one's employment. For staffers who have suffered injury, it will not matter if the company failed to adequately train or manage these patients. That's because workers' compensation is considered an exclusive remedy, relieving the company of any other legal liability for work-related injuries.

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August 28, 2014

Brooks v. Martin, et al. - Overcoming Governmental Immunity Defense

The North Carolina Court of Appeals recently affirmed a trial court's decision to dismiss a complaint brought by a woman seriously injured when a police officer negligently collided with her at an intersection.
While such action seems inherently unfair, it's an illustration of the principle of sovereign immunity, which can shield government entities and employees from legal responsibility for harm caused.

However, our Asheville personal injury attorneys recognize this protection is not without limit, and there are circumstances under which a person can successfully bring suit against the government or its workers. Such a case should not be pursued unless it has been carefully reviewed by an experienced injury lawyer.

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August 26, 2014

Internet Gun Exchange Host Not Liable for Death, 7th Circuit Rules

Lawsuits against online providers who facilitate gun sales between private buyers and sellers will likely not go far, if the recent ruling handed down by the U.S. Court of Appeals for the Seventh Circuit is any indication.
Although disappointing, the ruling in Vesely v. Armslist LLC is not all that surprising, given the legal precedent set by previous cases involving sites like Craigslist and EBay. Our Rock Hill injury lawyers know it's generally been held that these kinds of "online marketplaces" can't be held liable for the negligence or criminal wrongdoing of their customers.

Specifically, 47 U.S.C. ยง 230 may preclude some of these lawsuits because it says operators of interactive computer services aren't responsible for material posted by users.

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August 24, 2014

New Documentary Highlights Twisted Tort Reform Efforts

Corporations have spent millions of dollars convincing people that the majority of personal injury lawsuits are "frivolous," "trivial" and the work of money-grubbing trial lawyers. Since the 1980s, lobbyists have pressed this narrative on the public and politicians in an effort to push through tort reform efforts to limit public access to the court system - one of the only places "the little guy" can face off against a corporate giant and have a real shot at success.

And such efforts continue.
In the new documentary, "Hot Coffee," directed by Susan Saladoff, the truth about the American civil justice system is examined - starting with the 1992 case of a 79-year-old woman who sued McDonalds after spilling hot coffee on herself.

Our Charlotte personal injury lawyers know this is a classic example of how the facts are twisted in the public eye to make it seem as if the woman was absurd for suing in the first place - and the court system acted egregiously in awarding her anything.

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August 22, 2014

Donahue v. Ledgends, Inc.: Liability Waivers in Negligence Actions

Our Charlotte personal injury lawyers know that companies will try to avoid liability for negligent conduct by having customers agree to lengthy and confusing liability waivers.

climbing-the-wall-288569-m.jpgIn Donahue v. Ledgends, Inc., an Alaska case, the plaintiff signed up for a beginner rock climbing class at a local gym. The gym was designed to simulate a rock-climbing environment, as the walls were made to look like rocks with various hand and footholds attached.

The plaintiff was no stranger to risky physical activities, both while exercising and at work. According to the record, she had worked in construction and on a commercial fishing boat. She had also gone kite boarding, which is considered a dangerous activity.

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