Anyone who engages in a sport or other physical activity understands there may be some inherent risks involved. If you aren’t in shape, you could pull a muscle. If the game involves tackling, you might get knocked hard to the ground. weighttraining

Generally, injury lawsuits prohibit claims where the injured person assumed the risk of that injury by participating. But that doesn’t mean every injury sustained in sports, workouts or other physical activity is covered under this umbrella.

Take for example the recent case of Lik v. LA Fitness, recently weighed by the Nassau County Supreme Court in New York. Here, a patron is suing the gym where he held a membership after falling and suffering injury during a basketball game at the facility in January 2014. The issue was not that he fell during the game, but rather the injury he sustained when he hit the floor. Plaintiff alleges that a floor board on the facility’s basketball court was defective and therefore created a dangerous condition. As a property owner, the gym owed a duty of care to customers to ensure the site was reasonably free from dangerous conditions and foreseeable hazards.  Continue reading

Plaintiffs in personal injury lawsuits are often required to submit to physical examinations of their injuries by doctors chosen by the defense. These exams are sometimes referred to as “independent medical exams,” but make no mistake: The doctor is being paid by the defense, and that is almost certainly how their opinion will skew.parkinglot2

Essentially, any time a plaintiff’s physical or mental condition is in controversy, any other party can serve notice and direct that party to undergo a physical or mental examination by a designated provider.

This was the situation in the recent case of In re H.E.B. Grocery Co., L.P., weighed by the Texas Supreme Court. Continue reading

When students attend school or engage in activities on school property, it is assumed they will be supervised – particularly if they are engaged in a risky activity.youngboy

This was the allegation in Jimenez v. Roseville City School District, a case recently weighed by the California Court of Appeal, Third Appellate District. In this case, the risky activity was break dancing, a style of street dancing that is popular among youth, and associated with hip-hop and rap music. It’s an extremely physically demanding type of dance, and it does occasionally perform risky moves, such as spinning on one’s head, twisting, bending, jerking and sometimes flipping.

According to court records, plaintiff was a 14-year-old middle school student at defendant school district when he was injured while attempting to perform a flip while practicing break dancing with a group of his fellow students. The group was practicing in a classroom with the teacher’s permission, but the teacher had left the room at the time the injury occurred. Continue reading

Two children in Missouri were passengers on a school bus that collided with a pickup truck. Each of the two children were seriously injured. schoolbuswithchild1

The parents of this children separately sued a myriad of defendants in state court, including the manufacturer and retailer of the bus and its brakes. The families alleged that, among other failures, the brakes on the bus were defective and this was a proximate cause of the crash. The company that sold the bus was originally a party to each of these actions, but was later not named in amended complaints.

The cases were consolidated, went to trial and jurors found in favor of defendants. Later, plaintiffs filed a lawsuit against the bus retailer in federal court. However, the district court granted defense motion to dismiss on grounds the claim was prohibited based on a legal principle known as res judicata, which is claim preclusion. Plaintiffs appealed. The U.S. Court of Appeals for the Eighth Appellate District affirmed on the alternative grounds of collateral estoppel, which is a type of issue preclusion. Continue reading

With summer fast-approaching, thrill seekers across the state are soon going to be flocking to fairgrounds and parking lots across North Carolina for a myriad of state fairs, carnivals and amusements. carnival1

For most patrons, food is the main reason they come. Still, it’s estimated at least half will take their chances on a ride.

But are these rides really safe? There are numerous headlines that seem to indicate it isn’t. For example, ABC News reported a teen girl was killed after she was ejected from a spinning carnival ride at a local church parking lot. Two other teens were seriously injured. In another case out of Nebraska, a young girl was scalped when her hair was caught in a spinning ride.  Continue reading

Property owners and managers owe business patrons a duty of care to ensure the site is reasonably safe from foreseeable risks and harms that are not obvious to those guests. barsign

When it comes to third-party assaults, property owners can sometimes be held liable for these too, but only if it can be established that the risk of an attack was reasonably foreseeable. Typically, this is shown through presentation of a series of similar incidents at the same establishment or nearby. Many of these cases involve bars, clubs and taverns that serve alcohol.Anytime alcohol is involved, there is a heightened potential for risk, and these businesses must take that into account in determining an appropriate level of security.

In the recent case of Pittman v. Rivera, though, the question before the Nevada Supreme Court was whether a bar could be held liable for a disgruntled patron plowing into a group of other customers just outside the bar, hours after he’d been forcibly removed and then again denied entry upon return.  Continue reading

When a person is violently assaulted by another, it can result in serious physical injuries, scarring, permanent disfigurement and long-term emotional trauma. The perpetrators in these cases will usually face judgement in criminal court. But where does that leave the victim? drivefastsaab

In some situations, civil action may be appropriate to secure financial compensation to assist with medical bills, lost wages and pain and suffering. Of course, the person who committed the assault can be liable. Unfortunately all too often, those individuals don’t have sufficient assets to cover a judgment. Plus, insurance companies almost never pay benefits for injuries caused by an intentional act of harm by an insured.

That leaves those injured with few options. One that may be worth exploring is premises liability. In some instances, property owners or managers may be liable for an attack that occurs on their property when the risk was reasonably foreseeable and there was a failure to address that risk or warn of it. In a recent case before the South Carolina Court of Appeals, a man who suffered a violent attack while patronizing a fast food drive through sought compensation from the restaurant. However, the court ultimately determined the risk was not foreseeable.  Continue reading

Government agencies are protected from civil litigation for personal injury by sovereign immunity, which is waived only in certain instances.

However, does this same immunity extend to contractors doing government work? cardashboard

It can. Look at the North Carolina Court of Appeals decision in Pruett v. Bingham et al. This was a case that stemmed from an awful, multi-vehicle car accident in Hendersonville, just 30 minutes south of Asheville, on I-26 West approaching the U.S. Highway 25 intersection.

It was about 7 a.m., and the morning rush hour was just beginning to commence. Plaintiff was driving his pickup truck in the westbound lanes of I-26. At the same time, one of the defendants, a commercial bus driver, was operating a commercial bus owned by defendant bus service. Suddenly, that commercial bus rear-ended a pickup truck in front of it. The pickup truck was then pushed forward and into the back of another pickup truck. As a result of the collision, the bus and the first pickup truck were pushed into the right lane of I-26. That’s where they slammed into plaintiff’s vehicle.  Continue reading

Approximately 11 million children in the U.S. are in child care programs across the country. But daycare injuries and fatalities are vastly under-reported, according to Child Care Aware of America. That’s largely because there is no federal reporting requirement for child fatalities in day care and state reporting requirements vary widely. In fact, 12 states don’t require child care centers to report deaths at all. toddler

There is also no national statistic for how many injuries occur at daycare, though some states have taken initiative to delve into the problem. For example, the St. Louis Post-Dispatch in Missouri reported in 2012 that 41 of the state’s 45 deaths over the course of three year occurred at unlicensed facilities. But even in those locations that are licensed, it can be difficult for parents to get a straight answer about what happened. Even worse, many facilities do not carry liability insurance in the event an injury does occur.

Or, they may find, as in the recent case of World Harvest Church v. Grange Mut. Cas. Ins. Co., that insurance won’t cover it because it asserts the injury was the result of intentional criminal misconduct. So the big question in the World Harvest case, before the Ohio Supreme Court, was whether the injuries suffered by the child were the result of abuse or “corporal punishment.” Continue reading

In general, private persons have no duty to report evidence of a crime against an elderly adult by their caretaker. There are strong moral reasons, of course, but that is not the same thing as a legal duty. However, there are certain situations in which persons do have a duty to report the abuse, neglect or exploitation of a disabled adult or caretaker. phone

N.C. Gen. Stat. § 108A is the Protection of the Abused, Neglected or Exploited Disabled Adult Act. Per section 108A-102, any person with reasonable cause to believe a disabled adult is in need of protective services must report that information to the facility director. Upon finding evidence of nursing home abuse, neglect or exploitation of a disabled adult or elderly person, the director must notify the district attorney. Physicians are the one profession bound by law under this statute. Other professions impose internal sanctions for failure to report. For example, the North Carolina Board of Nursing mandates nurses report other nurses for fraud, theft, sexual misconduct, inappropriate prescribing, criminal actions and more.

These professionals may face internal sanctions for failure to report. But what about civil liability? A failure to report abuse, neglect or exploitation of an elder adult resulting in injury or death to the patient may be grounds to impose civil liability. Take for example the recent case of Kim v. Lakeside Adult Family Home. This was a case out of Washington state, but nonetheless has parallels for us here in North Carolina. Continue reading

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