Recently in Wrongful Death 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.

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 27, 2015

State ex rel. Beisly v. Hon. Perigo - Civil Justice for Criminal Wrongs

An estimated 30 million people in the U.S. are victimized by crime annually, and the consequences of that crime often extend far beyond the individual act. The U.S. Department of Justice estimates victims - and those who survive them - are left with substantial costs for medical treatment, rehabilitation, counseling, lost wages and property damage.
Every year, those costs stack up to $450 billion.

But the criminal justice system is not designed to compensate victims of crime for their losses. True, some cases do result in orders of restitution. But the victim has little control over the proceedings, and the goal of the criminal justice system is punishment of the offender, not restoration of the victim.

This is why many victims of violent crime (and/or their surviving loved ones) may seek justice through the civil court system. In this forum, victims have a greater amount of control. They can seek financial compensation. They can hold offenders directly accountable. They can also pursue action against other third-party responsible parties, such as businesses, apartment complexes and shopping centers that failed to have adequate security. They may also pursue a civil lawsuit even if the criminal action sputters out and fails to result in a conviction.

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August 15, 2015

Report: Blood-Thinning Drug Unmonitored Harms Nursing Home Residents

A popular blood-thinning drug is widely prescribed to elderly patients across America.
Coumadin and its generic counterpart, warfarin, has been a noted lifesaver for those who suffer certain heart issues or stroke risks. But the drug must be carefully monitored by health care professionals, or else it can quickly become deadly. Too much, and the patient runs the risk of uncontrollable bleeding. Too little, and there is a chance of developing potentially fatal blood clots.

Nursing home patients in particular are at high risk of these complications because, as a recent ProPublica investigation reveals, this population is already vulnerable to the kinds of lapses in oversight that result from poor staffing levels and lack of training.

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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.
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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July 17, 2015

Suarez v. City of Texas City - Liability for Drowning Deaths at Public Beach

All land owners - whether public or private - owe some duty of care to those who enter. The degree of that duty depends not only on the type of establishment, but also the nature of the visit.beach1.jpg

For example, business owners owe the highest duty of care to members of the public who enter to patronize that establishment. However, if a trespasser enters a private property unlawfully, private property owners owe a minimal duty of care not to intentionally inflict harm or avoid gross negligence where they know those trespassers may be on site. (The rules are slightly different when there is an attractive nuisance - such as swimming pool or abandoned appliances - and the trespassers are children.)

Owners of public property also owe a duty of care to those who enter. However, most states - including South Carolina - have a "recreational use statute." These measures are intended to encourage land owners to make property available for public recreational use by limiting liability should something happen on that property.

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June 4, 2015

Genie Industries, Inc. v. Matak - Construction Death Lawsuit Weighed

When a person is injured or killed at work, typically workers' compensation or workers' compensation death benefits is the first - and sometimes only - avenue of compensation available. hardhat.jpg

In most cases, workers' compensation bars any other form of payment from one's employer, even if the company was in some way negligent for the accident.

However, there are sometimes cases in which third parties may be held liable too. This could be the property owner, other contractors and sometimes product manufacturers or distributors. This was the case in Genie Industries, Inc. v. Matak, where a worker was killed after falling from an aerial lift.

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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.
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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March 30, 2015

Anderson DUI Wrongful Death Lawsuit Filed Against Driver, Bars

A civil lawsuit filed by the family of one of three youths killed in a deadly DUI accident in Anderson late last year names not only the alleged drunk driver, but also the establishment that reportedly served him alcohol.
The 17-year-old crash victim was killed in the November 2014 wreck, along with a 22-year-old man from Greenville and a 20-year-old woman from Iva. Additionally, the 12-year-old sister of the 17-year-old decedent was critically injured.

The families of the other victims have also joined the lawsuit, which alleges at least two bars served alcohol to the suspect driver in the hours before the fatal crash. Relying on the Dram Shop law, plaintiffs alleged the bars violated state law when they served alcohol to a person who was clearly intoxicated.

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March 21, 2015

Uriell v. Regents of UC - $550K Lawsuit for Failure to Diagnose

A California appellate court recently upheld a $550,000 medical malpractice verdict for the wrongful death of a woman whose doctor failed to timely diagnose her with breast cancer.
The cancer was reportedly already in the later stages when she scheduled her first appointment for a small lump. But the doctor, after reviewing a mammogram and an ultrasound, indicated the patient had benign cysts and should simply cut back on caffeine. The patient, with a long familial history of fatal breast cancer, returned 18 months later with other symptoms. By then, the cancer was so far progressed, there was not much treatment could do. She died little more than a year later.

Her family sued the doctor and the hospital in Uriell v. Regents of UC, arguing defendant doctor breached the applicable standard of care for declining to order an MRI or biopsy after that first appointment, given the patient's genetic propensity to develop the disease.

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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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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 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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December 2, 2014

Black Friday Injuries and Retailer Liability

In the weeks leading up to the notorious "Black Friday" for bargain-seeking shoppers, media sources reflected on past incidences of injury, even death related to stampedes, fighting, and brawls between customers and employees. In the event that a shopper is injured onsite, who is at fault? Can a consumer take action against a shop owner or corporation if they have suffered an injury? Black Friday attracts shoppers from all over the nation and has even spread to the UK. It is the busiest and most publicized commercial day of the year, but has also resulted in serious injuries and poses risk to consumers as well as retail employees.


The National Retail Federation reports that there were over 90 million consumers participating in online and in-store Black Friday events. Those who decide to brave it in the masses could face potentially dangerous conditions. While many retailers will invest in a few extra security guards--they are not always sufficient or able to properly manage large crowds. A website found at tracks the number of injuries and deaths that have occurred as a result of Black Friday mobs. Individuals who have suffered a Black Friday injury do have the right to take action to collect compensation for medical expenses, lost wages, and additional personal losses that may have been incurred.

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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 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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