Recently in Personal Injury Category

August 29, 2015

Spierer v. Rossman - No Duty of Care Owed by Missing Student's Friends


In any civil tort lawsuit, plaintiffs are required to prove each element of basic negligence.

These elements are:


  • Defendant owed a duty of care;

  • That duty of care was breached;

  • Plaintiff suffered harm as a result of that breach;

  • Proof of monetary losses.

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If any one of these points isn't proven, plaintiffs cannot collect damages from defendant.

In the recent case of Spierer v. Rossman, the U.S. Court of Appeals ruled friends of a missing college student owed no duty of care to her on the morning she disappeared. The court, while expressing deep sympathy for the parents, say there are no decisions under Indiana state law (where this incident occurred) that allows persons to be held liable for the actions of their social peers absent additional factors that aren't present in this case.

The appeals court ruling was an affirmation of an earlier dismissal by the circuit court.

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August 24, 2015

South Carolina Group Homes Face Abuse Allegations


A number of group homes in South Carolina have received millions in taxpayer funding the last few decades, despite dozens of allegations of abuse involving those in their care.
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A few have been forced to shut down, but others remain open.

One of those now shuttered was in Belton. The group home for troubled youth received an estimated $1.5 million annually in state funding. And yet, according to a recent investigation by the Post and Courier, the facility was investigated more than three dozen times for alleged abuse and neglect of the children there since 2000.

However, it wasn't until a personal injury lawsuit was filed by one of the former residents, now a 23-year-old man, that the facility actually closed its doors. His lawsuit alleges he was raped and tortured by staff members and their friends. He claims he reported the abuse to a social worker and another employee, but nothing was done. Eventually, he said, he just gave up. And he wasn't the only one - and neither was that facility.

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August 13, 2015

Robinson v. Mine Safety Appliances Co. et. al. - Time Limits in Latent Disease Litigation


Statutes of limitations are the way the legislature has worked to keep the courts from becoming clogged with years-old cases that are often not winnable due to lack of evidence.
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This is true in both civil and criminal cases.

In North Carolina, N.C. Stat. 1-52(16) allows three years from the date of injury for someone to bring a personal injury lawsuit. Meanwhile, N.C. Gen. Stat. 1-50(6) doesn't bar action on product liability claims for six years. Different types of claims may have varying statutes of limitations, and that can change depending on the state you're in too.

While the courts take these time limits quite seriously, there are some situations in which they may "toll" or lengthen the window of time in which a claim may be filed. Generally, the clock starts ticking on these claims from the time at which the injury occurred - or plaintiff should have known it occurred. So for example, car accident-related injuries will almost always be known or knowable from the date of the crash, so that's when the statute of limitations clock starts ticking. However, in cases where there is a latent disease - such as mesothelioma or silicosis - a person may be seemingly healthy for decades after exposure, and only much later learn the extent to which exposure to asbestos or silica dust sickened them.

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August 2, 2015

Chadd v. U.S. - Wrongful Death Lawsuit Against Government and Discretionary Function Exception


The purpose of the Federal Tort Claims Act is to waive the sovereign immunity that would normally bar a lawsuit by private citizens against the federal government for wrongdoing committed by its employees in the scope of their employment.
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However, there are 13 specific exemptions to the waiver, with the most commonly used being the discretionary function exception. It provides in part that the government can't be liable for claims based on the exercise or performance of a discretionary function or duty of the government worker - regardless of whether that discretion was abused.

This is in contrast to ministerial functions, which are specific duties made mandatory by the government employer. The exception is broad, and it isn't always applied with any real precision by the courts. This can make it difficult to predict a precise outcome.

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July 10, 2015

Chavez v. 24 Hour Fitness USA - Gross Negligence Standard


A woman who suffered a traumatic brain injury when she was hit by a piece of work-out equipment at her local gym has been granted the go-ahead to proceed to trial with her case.gym1.jpg

An appellate court in California ruled in Chavez v. 24 Hour Fitness USA that plaintiff had the met the minimum standard of proof for gross negligence necessary to overcome summary judgment favoring the defense in a case where plaintiff had previously signed a waiver of liability.

That waiver of liability indicated plaintiff agreed to hold the gym harmless for any injury she may suffer as a result of gym employees' negligence. Gym argued this was an absolute defense. However, if plaintiff could show gym acted with gross negligence (as opposed to ordinary negligence), she could overcome this assertion and proceed to trial.

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June 30, 2015

Eight Cases of E. Coli at South Carolina Daycare Center Confirmed


There is no question that when we drop our children off at daycare each morning, we are putting a lot of trust in the daycare operator to do everything possible to prevent any injuries. Injuries at daycare facilities can happen in a variety of ways. Some cases involve a child not being properly supervised while eating or drinking, and the child chokes on the food. Other cases involving inattentive daycare staff allowing children to bite or otherwise assault each other. There are also many cases involving foodborne illness.

escherichia-coli-1018465-m.jpgAccording to a recent report from WBTW News 13, officials with the South Carolina Department of Health and Environmental Controls (DHEC) has just confirmed an eighth case of E. coli, which has been traced to a now-closed daycare in Greenwood. While there are more cases possible, there has been one confirmed death of a child as result of an E. coli infection from the suspect daycare facility.

One of the owners of the daycare facility made a public statement, saying they volunteered to close the business as soon as the source of the outbreak was confirmed, and they have been working hard to clean and sterilize the building. DHEC officials say they have not identified how the E. coli strain became introduced to this particular daycare, but they are aware that four of the eight cases involved the same exact strain of E. coli bacteria. Some of the E. coli victims worked at the daycare facility, and the remaining victims were children enrolled at the center.

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June 27, 2015

Amusement Park Safety in the Carolinas


This summer, families across the country will look forward to spending their days at local amusement parks. These places can be a lot of fun and there is often a lot more to do that just go on thrill rides. There are variety of family-friendly shows, water attractions and even nightclubs for the parents.

jubilee-coaster-764424-m.jpgMany will travel to big amusement parks outside of North and South Carolina, like Disney and Busch Gardens, but many will go to large parks in the Carolinas, like Carowinds in the Charlotte area.

While roller coasters aren't the only source of entertainment, they are still a reason many people come to these theme parks each year. Amusement park operators are aware of this and are constantly competing with each other to attract more tourists by boasting the newest, biggest, and scariest roller coasters. However, according to a recent news article from Market Watch, some of these news rides can pose a serious safety risk to riders.

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June 25, 2015

Tainted Ice Cream Isn't the Only Source of Listeria


Over the past two months, the news media has focused quite a bit on food safety and food product recalls in relation to the recent problems Blue Bell Creamery faced when most of their ice cream product line contained a significant risk of listeria contamination. In that case, it was originally believed to be a single ice cream scooping machine used only for novelty products that was responsible for the contamination. However, later safety testing revealed widespread listeria contamination in multiple production centers, and the recall was expanded from only novelty products to virtually all ice cream.

ice-cream-dipper-584463-m.jpgBut ice cream is not the only product that can pose a serious risk for listeria, and, according to a recent news feature from Consumer Reports, there are steps many in the foodservice industry can do to prevent food poisoning. It should be noted, ice cream products pose an added safety risk because of the longer periods of times a container of ice cream can sit in a consumer's freezer. This makes recalls much more difficult to organize.

Listeria monocytogenes (listeria) is a strain of bacteria naturally found in water, soil and decaying vegetation. It is found in many animals, and these animals essentially serve as carriers for the bacteria and often have no symptoms of any listeria-related illness. When those animals are killed for their meat or processed for the production of dairy products, anyone eating the meat or dairy can become infected with the disease.

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June 15, 2015

Ten Injured When AC Unit Falls From Crane in NYC


According to a recent news article from WTSP, an air conditioning unit was being lifted on a crane in New York City when it fell to the ground and injured 10 people. Witnesses say the air conditioning unit was an extremely large commercial size unit that was being lifted by crane to the top of a skyscraper on Madison Avenue.

harbour-crane-1428745-m.jpgThe air conditioning unit was 28 stories above street level when it fell and landed in the middle of crowded Madison Avenue just before 11 a.m. The falling air conditioning unit injured 10 people. Authorities say eight of the ten victims were passengers of passing cars and pedestrians walking on the street below, and the remaining two victims were construction workers involved in the installation of the air conditioner. New York City Mayor Bill de Blasio issued a statement following the incident and said nobody was directly struck by the air conditioner itself, as all of the injuries were caused by debris from the unit after it crashed onto the street. He said all injuries were minor, and all victims were taken to local hospitals, where they received treatment.

Police and building inspectors are conducting an investigation into how the air conditioner managed to fall 28 stories to the street below. They believe the crane itself was and still is in good working order and said that is all they could say at this time. From those comments, people are obviously assuming operator error in securing the payload or moving the crane boom may have played a role in this rather unusual accident, but, it should be noted, there has been no finding of liability on anyone's part as of the time this article was released.

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June 12, 2015

Dre Beats Speaker Recalled Due to Burn Hazard


In recent years, wearing large studio style headphones has become extremely popular. One of the main brands people associate with the popular trend is Dre Beats, which were first marketed by hip-hop recording artist and music producer Dr. Dre. Various recording artists, athletes, and Hollywood celebrities are using these headphones, and, as a result, these fairly expensive (around $200 to $400 a pair) headphones have been flying off the shelves of electronic stores, and Apple recently acquired the brand.

stereovision-491558-m.jpgAccording to a recent article from Sound Guys, Apple has announced it will be voluntarily recalling its Dre Beats Pill XL due to problems with "overheating." Overheating is a relative term, since there have been allegations that the units heated up to the point where people were burned, and the products actually caught on fire.

First, it should be noted, the Beats Pill XL is a pill-shaped speaker, and not a pair of headphones like the other Dre Beats products, which people actually wear on their person. While the reports have ranged from minor overheating to physical burns, Apple has stated it does not want to take any chance with regard to customer safety and has voluntarily recalled the entire run of production for this item.

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June 10, 2015

Woman Suffers Life-Threatening Injury at Baseball Game


Going to a baseball game can be a lot of fun for the whole family, especially at one of America's great old ballparks like Fenway Park in Boston, which is home of the Red Sox. However, if you sit close to the field, there is always some risk of being injured. As the warning before every major league game states, you should be careful to look out for objects flying into the stands, which can result in serious injury.

fenway-242077-m.jpgAccording to recent article in USA Today, a woman was sitting behind home plate at Fenway Park with her 8-year-old son watching the Oakland As play the Boston Red Sox, when she was seriously injured by part of a broken bat, which came flying into the crowd.

Victim was seated watching the game while Oakland's third baseman, Brett Lawrie, was up to bat. He swung at the pitch, his bat shattered upon making contact with the ball, and part of the bat flew into the stands. The blunt end of the broken bat barrel hit victim on her forehead. She suffered what first responders, who were already on hand at the park, stated was life-threatening blunt force injury. She was bleeding profusely from her head, while EMT's worked to control the bleeding. Once she was stable enough for transport, she was taken by ambulance to nearby Beth Israel Deaconess hospital to undergo emergency surgery.

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June 1, 2015

Coba v. Tricam Indus., Inc. - Ladder Fall Liability Verdict Upheld


After a jury issued a conflicting verdict in the product liability case of Coba v. Tricam Indus., the defense made a crucial error: They did not object to it right away.
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It was only after that the defense pressed the trial court for a reconsideration, pointing out the discrepancy. Specifically, defense noted the jury found the product in question - a ladder - was not defectively designed, but still decided the defendant manufacturer was strictly liable for the injuries of decedent who fell from it.

Trial court denied consideration, but a Florida appellate court reversed, citing the "fundamental nature" exception to the widely accepted rule that defense must challenge inconsistent verdicts with a timely objection. However, the Florida Supreme Court reversed, siding with trial court on this issue and finding the $1.5 million verdict (reduced by 80 percent per a finding of comparative negligence) should be upheld.

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May 18, 2015

Medical Device Developed in North Carolina May Help Accident Victims


In today's world, medical science and technology has developed to a point where more accident victims can live much the way they did prior to suffering a serious debilitating accident.

broken-leg-xrayseries-1-978477-m.jpgAccording to a recent report in The Charlotte Observer, some of this new technology is being developed in North Carolina. Specifically, a new leg-mounted device aimed at helping injury victims is being developed. The new device, which has been described as groundbreaking, is designed to use a carbon-fiber exoskeleton worn on a patient's legs and aids them in moving their legs back and forth during walking. What makes this device so remarkable is that it does not contain any motors with a power source, because designers believed this would make them to heavy to wear all day.

The way they work is a patient attaches the lightweight to device to his or her leg below the knee. There is also a crutch of some sort behind the patient's calf and a spring by the patient's ankle. There is a Kevlar cable that connects these elements, and a support is also placed in a patient's ordinary shoe. When a patient takes a step, the crutch engages the spring by compressing it, and then in uncoils, causing it to help propel the patient's leg forward. The mechanism then resets itself and starts again with each step. Essentially, it takes less physical energy to walk.

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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.
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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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