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November 2011 Archives

Bitten by a vicious dog? North Carolina dog bite cases

In North Carolina dog bite cases are common and the injures can be severe.  The old rule in North Carolina was that absent a leash law violation; there must be a prior violent action by the dog before there could be any recovery for a dog bite.  The law as set out below establishes what what must be shown to recover. "To establish the liability of the owner or keeper of a domestic animal for injury done to a human being there must be evidence that the animal had previously indicated its dangerous propensities and the owner or keeper had knowledge of it. But notwithstanding the old adage about every dog "being entitled to one bite," a dog bite victim does not have to show that the dog bit someone else earlier; he only has to show that the dog had demonstrated its vicious inclinations by trying to bite someone and that the owner or keeper had knowledge of it. Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676 (1941). "Knowledge of one attack by a dog is generally held sufficient to charge the owner with all its subsequent acts." 4 Am.Jur.2d Animals Sec. 95, p. 343 (1964). Finally, the wrong or fault in such cases is the keeping of a dangerous animal and liability does not depend upon proof that the owner was negligent in permitting it to run loose or in letting it escape, Hill v. Moseley, supra, though permitting a dangerous animal to run loose is certainly a circumstance to be considered in determining whether the tort was aggravated.  Hunt v. Hunt, 86 N.C. App. 323, 327, 357 S.E.2d 444, 447 aff'd, 321 N.C. 294, 362 S.E.2d 161 (1987)"  The law has continued to change and knowledge of the general propensities of dogs have now been found to be enough.  In other words, a pitbull that has been trained to kill or injure need not have previously bitten or attacked as the case below points out. "Initially, we note this Court has observed that "not all actions seeking recovery for damage caused by a domestic animal need involve the vicious propensity rule," Griner v. Smith, 43 N.C.App. 400, 407, 259 S.E.2d 383, 388 (1979), generally described as a strict liability type of determination relying upon "proof of vicious propensity and knowledge by the owner." Id. at 406, 259 S.E.2d at 387. Further, we have explained that in circumstances other than those concerning vicious propensity, [t]he owner of a domestic animal is chargeable with knowledge of the general propensities of certain animals and he must exercise due care to prevent injury from reasonably anticipated conduct. Id. at 407, 259 S.E.2d 383, 388. In Williams v. Tysinger, 328 N.C. 55, 399 S.E.2d 108 (1991), moreover, our Supreme Court discussed a mother's claim to recover medical expenses after her minor child was kicked in the head by a horse. Id. at 56, 399 S.E.2d at 109. Accordingly, the issue of the owner's negligence therein was not dependent upon the owner's knowledge of any vicious or dangerous propensities of the horse. Nonetheless, the Court held the owner was chargeable on a claim of negligence with knowledge of the general propensities of the horse, including "the *55 fact that the horse might kick without warning or might inadvertently step on a person." Id. 8 Although no case in this jurisdiction has invoked the Williams rule where the domestic animal was a dog, we conclude that application of the rule is appropriate on the facts herein.  Hill v. Williams, 144 N.C. App. 45, 54-55, 547 S.E.2d 472, 478 (2001)" Therefore the standard currently in North Carolina is in order to recover for a dog bite the dog need either have a vicious history or be of a breed that is known for viciousness.  A labrador retriever who has never previously bitten is still difficult to recover from the owner.  As dog bites are often vicious and dangerous the above law sets forward what is the basics to recover.

Negligence from Trips, Slips and Falls at Public Places and Stores

Most people think that if you fall at a store or on some one's property that the property owner is responsible for your injuries solely due to their ownership of the property.  In North Carolina that is far from the truth.  Instead we have two distinct ways of determining whether there is fault on behalf of the store or property owner. First, if you fall at a public location such as a grocery store you must prove negligence.  Negligence is a breach of a duty resulting in harm.  A store has a duty to provide a safe shopping environment.  If they fail to provide a safe shopping area they may be liabile.  However, this is not entirely clear as they may not be liable for dangerous conditions not caused by their own employees unless they have had sufficient notice of the existence of the dangerous condition. The law in North Carolina is; "Where a plaintiff customer slips or falls on an object and is injured in a retail establishment, the "plaintiff must show that the defendant either (1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 (1992) (citing Hinson v. Cato's, Inc., 271 N.C. 738, 739, 157 S.E.2d 537, 538 (1967)).  Herring v. Food Lion, LLC, 175 N.C. App. 22, 27, 623 S.E.2d 281, 284 (2005) aff'd sub nom. Herring v. Food Lion, L.L.C., 360 N.C. 472, 628 S.E.2d 761 (2006)." Therefore, in order to recover you must show that the reason you slipped, tripped or fell at a store was due to some condition created by the store itself or its employees OR that the condition had been there long enough for the defendant or its employees to know that the dangerous condition existed.  Both are sometimes difficult to prove. One of the common ways people become injured in retail stores involves water on the floor.  Proving how the water got on the floor or how long the water was on the floor is difficult without a witness or something like a leaking cooler.  Just because the water is on the floor the store is not liable for injuries unless the rest of the burden of how it arrived or for how long it had been there has been proven. Another North Carolina Court found; "It is not this Court's intention to place on owners and occupiers of land an "unwarranted burden in maintaining their premises. Rather, we impose upon them only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors." Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). Therefore, failure by "[a] store ... to exercise ordinary care to keep its premises in a reasonably safe condition and to warn of any hidden dangers of which it knew or should have known" constitutes negligence. Stallings v. Food Lion, Inc., 141 N.C.App. 135, 137, 539 S.E.2d 331, 333 (2000)(citing Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990); Roumillat, 331 N.C. 57 at 64, 414 S.E.2d at 342-43)). There is a presumption, however, that a reasonable person will be "vigilant in the avoidance of injury" when faced with a "known and obvious danger." Id. (quoting Roumillat, 331 N.C. at 66, 414 S.E.2d at 344); see Lorinovich v. K Mart Corp., 134 N.C.App. 158, 162-63, 516 S.E.2d 643, 646-47 (1999)".  Freeman v. Food Lion, LLC, 173 N.C. App. 207, 211, 617 S.E.2d 698, 701 (2005). Therefore, as you shop be careful of your surroundings.  If you do have the misfortune to be seriously injured by falling at a store, before you walk off embarrassed, figure out why you fell and what caused the fall.  If you don't, it may be impossible to probe

Medical Expenses in Automobile Cases: New Law

As of October 1, 2011 many citizens of North Carolina will no longer be able to recover the full value of their medical expenses if they are injured in an automobile collision.  The North Carolina General Assembly has passed HB542 and SB 586 and it is now the law in North Carolina.  Rule 414 Evidence of medical expenses. Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. This legislation hurts the average middle class citizens who works and has health insurance by giving any negotiated write-off between their health insurance company and their doctor to the at-fault party.  This change allows an injured person to only put on evidence of the actual amounts PAID on the bill regardless of who paid.  If the victim of any negligence is hard working and has as a result of their job health insurance the at fault person such as a drunk driver gets the benefit of this hard work and is allowed to reduce the amount submitted to the jury by the amount of the insurance reduction. One easy example is when a state employee is injured in a car collision and goes to the emergency room and to their primary physician for several visits they have "incurred" $2,500.00 in medical expenses. Under bill vs. paid, the amount the State Health plan has negotiated as a reduction with the hospital and the other providers in exchange for the provider getting paid by the health plan would come out of the amount. Of the $2,500.00 20% would be "paid" or owed by the state employee as a deductible and 80% would be the responsibility of the state health plan. Due to the amount of bills that are paid by the state health play the plan may only have to pay 50% of the 80% to satisfy that debt in full. Under bill vs. paid the state worker would not be able to present the 30% reduction to the jury as an incurred medical expense as it would not be actually "owed", the state worker would STILL have to pay the state health plan back out of any recovery the 50% they "paid" for the medicals.  The unreasonable portion of this bill is that those without health insurance recover the full amount of the bill with no reductions.  In reality the only one who benefits is the automobile insurance company.  The short answer is that it is not good for the victim and quite frankly the only benefit is for the insurance company who represents the drunk driver and whose identity in North Carolina is never mentioned during trial. Yes, that is correct, if the defendant drunk driver has auto insurance who will pay his bill, it is against the evidence rules to mention that during a trial, but the fact that the injured person is hard working and has purchased their own insurance is admissible...  Thus, if you or a close friend or relative has the misfortune of being injured in North Carolina after October 1, 2011 the one who injured you will be granted some of your benefits.

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