Prior to the adoption of the Equine Activity Liability Act in North Carolina, codified in N.C. Gen. Stat. Ch. 99E, liability for harm to people by horses was determined with consideration for traditional injury law concepts. Primarily, these were assumption of risk and comparative negligence. That is, to what extend did the plaintiff assume the risk of activity with a large animal and to what extent did that person play a role in causing their own injuries. horse1

However, the Equine Liability Act – which has been adopted in some form by 44 states – limits the amount of liability that equine professionals, owners and sponsors would bear in the event of injury or death to an individual by a horse.

The statute protects these potential defendants in cases where person engaged in equine activity suffers injury or death resulting form an inherent risk of the activity. This doesn’t include spectators, and it doesn’t cover potential defendants for providing unsafe equipment, unreasonable failures to make the activity safe or willful or wanton disregard for the safety of participants.  Continue reading

Drugs and medications are often the source of product liability claims that stem from patient injury or illness. Although all pharmaceutical companies have a duty to make sure their products are properly tested under U.S. Food and Drug Administration guidelines, the fact that a drug is approved does not shield the manufacturer from liability if the drug proves defective. girlinnature

Many of these cases involve failure to warn. That is, while some products may be unavoidably unsafe (the drug is unsafe no matter how carefully its made, but it still has benefits), the company has a duty to adequately warn users of those dangers. This can be accomplished by directing warnings to “learned intermediaries,” such as the doctor or pharmacist.

Product liability lawsuits are often complex and challenging. Recently, the Arizona Supreme Court issued a ruling that may make it somewhat easier for victims of defective drugs in that state to bring claims against drug companies that fail to make safe drugs or adequately warn of the risks.  Continue reading

A $2 million car accident verdict in favor of an injured plaintiff was overturned by an appeals court in New Jersey recently, after the judge agreed with defendant’s assertion that the amount of compensatory damages was “shockingly excessive.”carcrashinsurance

Beyond that, the court ruled the trial judge had made numerous errors during the proceedings, including refusing to delay the trial when defendant was hospitalized for a medical emergency two days before the proceedings and allowing plaintiffs to make certain factual assertions to the jury absent the backing of an expert witness.

In Berkowitz v. Soper, the Superior Court of New Jersey Appellate Division, the judge ordered a new trial was necessary as there had been a “clear miscarriage of justice.”  Continue reading

A U.S. magistrate judge for the Western District of North Carolina, Asheville Division, has granted a South Carolina couple the go-ahead to continue pursuit of their lawsuit against Beech Mountain

The case stems from an injury sustained by the wife in January 2011. She alleges she suffered a traumatic brain injury when a heavy block of ice and snow fell onto her head from the roof of the resort, which is about two hours outside of Asheville.

She and her husband filed a lawsuit, Palacino v. Beech Mountain Resort, Inc., alleging the resort was negligent and seeking compensatory and punitive damages.  Continue reading

Medical malpractice claims in North Carolina must be carefully evaluated and properly filed in a timely manner. The courts are very strict on these rules because they do not wish for busy health care professionals to be bombarded with frivolous allegations of malpractice. doctorpatientrelationship

But of course, these rules do make it tougher for those with legitimate claims (and there are many) to make it through these legal hurdles.

Generally, the statute of limitations for medical malpractice claims in the state is 3 years (with a few exceptions). Additionally, in all cases, the claims must first be viewed by a health care professional similarly-situated to the defendant. That professional has to be willing to testify that the defendant breached the applicable standard of care. All this must be established before a plaintiff even gets their foot in the door.  Continue reading

For plaintiffs in Cisson v. C.R. Bard, the recent multidistrict litigation transvaginal mesh case before the U.S. Court of Appeals for the Fourth Circuit, there was good and bad news.woman

Good news: The court affirmed the $250,000 in compensatory damages and the $1.75 million in punitive damages against defendant C.R. Bard, maker of the transvaginal mesh that caused injury to plaintiff.

Bad news: The court also affirmed the split-recovery pursuant to Georgia statute, which gives the government 75 percent of any punitive damages awarded. Continue reading

Asbestos-related disease does not reveal itself until many years after airborne exposure to the toxic fibers, which were present in a host of construction materials and auto parts in the 20th Century. Asbestos causes a host of serious health problems, including mesothelioma, an aggressive terminal cancer. laundry

In the first waves of complaints that were filed, we were seeing mostly workers who had become ill decades after working closely with materials containing the substance. Today, those cases are still being filed, but we have also seen the emergence of another kind of case: secondary exposure.

This is when another person, usually a relative, of the worker who was exposed also claims exposure via daily contact with the fibers present on the worker’s clothes. Often, these claims are filed by spouses of workers, who often laundered these asbestos-ridden clothes, and children of workers, who greeted their parent with a hug as they returned home, before cleaning up. Continue reading

Many recreational activities may be accompanied by a certain level of inherent risk for participants. Beyond that, the company offering the experience to participants may require a signature on a waiver of liability. weight

States have different interpretations about whether companies should be allowed to evade liability simply with a signature on a waiver, and what kind of criteria waivers have to meet in order to be valid.

North Carolina law does allow a person to “effective bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty” (Strawbridge v. Sugar Mountain Resort, Inc., W.D.N.C., 2004). The courts have interpreted this to mean that waivers of liability are going to be upheld unless they violate a statute, are gained through unequal bargaining power or there are contrary to a substantial public interest (Wagoner v. Nags Head Water Sports, U.S. 4th Circuit Court of Appeals, 1998).  Continue reading

Most people equate dog-related injuries with a bite. But the law in South Carolina – and in several other states – allows people to seek compensation for dog-related injuries that may be caused when a dog bites or “otherwise attacks” another

South Carolina Code of Laws section 47-3-110 states such damages may be sought when that “attack” occurred in a public place or in a public place at which plaintiff was lawfully and so long as the person injured didn’t provoke the dog. Our state follows the legal principle of strict liability when it comes to dog bites, meaning it doesn’t matter whether the owner knew or should have known the dog would bite or attack.

In the recent case of Grammer v. Lucking, the Nebraska Supreme Court grappled with this issue of whether a person could seek damages for a dog-related injury, even when the dogs in question never actually bit the plaintiff.  Continue reading

The South Carolina Supreme Court has reinstated a $4 million verdict in favor of a family whose three special needs children were removed from their custody without an adequate investigation as to the injuries they sustained as a result of consuming contaminated medication. yellowpills

In Bass v. DSS, the state supreme court reversed an appellate court ruling regarding a trial court rejection of judgment notwithstanding verdict requested by the defendant agency.

Here’s what happened:

A couple with special needs children – two of them autistic – were given medication to give to the children to help them sleep at night. This was on top of a number of other medications the children took for various ailments. But in April 2008, the compounding pharmacy that produced the drug mixed it incorrectly – and made a batch that contained 1,000 times the recommended concentration.  Continue reading

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