A serious ankle injury can be a very real risk following a slip-and-fall accident in North Carolina. These types of injuries can lead to severe pain, reduced mobility and other chronic issues.
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No matter how many safety policies a business has, slip and fall accidents are still one of the leading causes of injuries in the United States. According to the National Floor Safety Institute, falls account for over eight million emergency room visits each year, or about 21.3 percent of all visits. Although most slip and fall accidents do not account for fatal injuries, these accidents are the most common cause of traumatic brain injuries. Whether you are injured on the job or when you are a customer, you should know what to do following a slip and fall accident:
Slip and fall injuries go up during the Holidays. Lack of floor safety while shopping this holiday season can result in a health nightmare over the best part of the year instead of a wonderful holiday. Stores have more merchandise, bigger crowds and items placed in dangerous areas this time of year. Why is floor safety so important? What do we mean by floor safety? As personal injury attorneys our Eastern NC offices have represented hundreds of people seriously injured while shopping by carelessness, inattention and lack of forethought by retail stores. North Carolina is one of a few states left in the country clinging to outdated law that makes recovering for serious and life altering injuries from retail fall cases very difficult. A spill by a customer that remains for hours; a grocery store that poorly packages items such as chicken in the deli which leaks blood and remains all over the store; failure to have a leaking cooler fixed; mopping without warning signs; placing merchandise on the floor in front of the selves without a warning; leaking drinks or chemicals on the selves that are not discovered for hours and sometimes days and old tile floors that are typically gray or light gray to not show dirt well past their need to be replaced have resulted in serious and life changing injuries to hundreds of our clients. We typically hear from the store it was our clients own fault for not paying enough attention while shopping in their store. Advertisers and store owners take classes, hire experts and go to seminars each year in how to best get our attention to their merchandise displays. They place items at eye height, flashy displays, banners, sale stickers (who looks away from a 1/2 off sticker) and place these items such that as we walk down the isle from our intended purchase we are drawn to their other items. If our eyes are by design and millions of dollars in research by retail experts drawn away from the floor and focused on the for sale items; the floor becomes of lower concern. An unexpected fall brought on by either tripping over something left in the floor of a store or by having one foot slip out from underneath you can result in serious back injuries, head injuries, broken bones or other injuries that have long term and serious consequences for the injured. Our office has represented more clients than I can recall who have permanent injuries from a fall while shopping for clothes, groceries and personal items. Serious injuries from Falls require a trial lawyer. This holiday season while you are out shopping for your family and loved ones remember to be safe, watch your step in stores and enjoy your holidays. If you do have the unexpected fall, call or contact our office, we will be glad to discuss your case.
Learning to do a cross examination is like learning to do anything else; you must practice, make mistakes and then learn from those mistakes to correct and hone your craft. If you ask a practicing trial lawyer, most will agree that learning to do a good direct examination that appears like a conversation, elicits the necessary information and does not result in constant objections is more difficult to master than a laser cross examination, however, even when you muddle through a direct, rarely can you do significant harm to your case like a poor cross examination. Below find the rules I keep posted in my trial cheat notebook. 1. Laser focus your cross examination. 2. Lead the witness, cross examination is not a direct examination. 3. Always complete your question with a yes or no answer only. 4. Follow your own order. 5. Start with eliciting helpful information for your case. 6. Don't overreach. Cross Examination is not a direct examination where you attempt to obtain information by asking open ended questions that allows a witness to answer in sentence or paragraph form. A good cross examination is a laser focused examination of what a witness has already testified to that allows you to question, exacerbate or challenge already given testimony. The work mistake I have seen over the years by adverse counsel in their cross examinations of my clients involve forgetting the point of cross examination and turning their examination into a deposition of my client. Cross examination is not the time to learn information nor is it a time to obtain information about my client that you did not already know. The old adage "Never ask a question at trial you don't know the answer to" is imperative when you are attempting to question a hostile witness. If you ask an open ended question whereby you are attempting to elicit information, you give that person an opportunity to spin and frame their answer in such a way that negatively impacts upon your case, i.e. you are no longer doing your job. Cross examination, when done correctly, does not have to go on forever. In fact, if you look at the rules I use for my own cross examination, you will see I attempt to remind myself at every stage not to over embellish my cross examination. I have seen an expert derailed in a few short questions and seen trials turn with a one sentence cross. The second biggest mistake I have seen in cross examinations is to forget how to frame your questions. If you are representing someone in a courtroom than you have some advance notice of the facts of your case. The only real exceptions to this rule are prosecutors in criminal district court who have the unenviable task of framing their cross examination while an officer whispers the true facts of the case in their ear. That exception aside, we are paid to prepare our cases in advance of the hearing or trial. For cross examination that involves becoming familiar with all the facts of the case, pouring over each witnesses testimony or potential testimony if not prior deposition was given and then framing every question for that witnesses in such a way that they; a. give positive information that helps our case first, b. that we shape our other questions in such a way they can only give a yes or no answer, but the question itself suggests the answer or facts. For adverse witnesses you must lead them in the direction of the answer you want them to reach by the way you ask the question. You may interject your own beliefs, thoughts and especially interpretations of the facts as you ask your questions. You must always keep in mind your audience. In front of a judge in a bench trial I have a lot more latitude with cross but I don't need to exhaust a subject or emphasize a point the way I like to do with a jury. Often in a short cross examination I may pause after asking an important question for upwards of fifteen or twenty seconds while I look at either the witness or the jury. Fifteen or twenty seconds can seem an eternity, but not long enough to get a judge to make you move on. In an automobile collision case where a young twenty-two or three year old witness was testifying that his mother had the green light my cross was two questions. First, Mr. Taylor isn't it true that you were sitting in the backseat immediately behind the passenger seat as you approached the intersection. Second, I'm sorry you broke your arm from the impact of this collision; I'm assuming a good young man like you would never have made a claim against your own mother, you didn't did you. In that case I really never cared what Mr. Taylor had said about the light being green or red. He was in the backseat and I found it a little ridiculous the defense lawyer was allowing him to testify at all. There were several other witnesses that had already testified my client had the green light. The issue for that case was that there had not been enough impact to cause my client's back injuries. In fact, the pictures of the damage to my client's vehicle were less than impressive. Therefore, I simply wanted to use his testimony to bolster my client's claim that it was a significant impact despite the low visible damage between the vehicles. Getting in that he broke his arm without even having that the main focus of the question was a bonus. Second, in a very anti-lawsuit county, I wanted the jury to understand the son had made a claim for his own damages which had been paid by his own mother's insurance company. This was a gift from the other attorney to put this young man on the stand; I had to take advantage of it without looking like a jerk. Always make sure your questions on cross end with only a yes or no answer. It does you no good to frame your question in such a way that helps you only to leave the door open for a witness to be able to explain away the answer. Yes, a very well prepared witness can always answer with, yes or no and then explain, but rarely does that help them and instead it appears they are trying to talk their way out of the answer rather than giving a good answer. The old lawyer saying is three hours of preparation for every hour of trial is never as true as in cross examination. Spend your cross examination time drafting numerous statements you want the adverse witnesses to say and then turn them into questions. Isn't it true that... is an easy way to ask just about anything. Then don't forget to narrow down your list of questions into a few narrow but powerful statements. Cross is still a laser being used as a paintbrush. You're cutting away the previous testimony to get to the heart of your issue with the witness and leaving a visual image in the jurors' minds. The visual image you want the jury to remember about a witness often does not follow in the same order as direct. You should never start by apologizing to the jury or the witnesses for skipping around, just do it. If you follow the same order as the direct examination you make it easy for the jury but you don't paint the visual image you wanted to paint, instead your helping to paint the other sides visual. Start by eliciting anything helpful. Why, well if I attack you first are you more likely or unlikely to help me? You also should never forget the idea of primacy and recency. I like to start cross by pulling out any fact that could help support my client's version of events and finish with the most helpful negative statements about the witness. This is not set in stone. If the witness has made big points you may need to take those points, those swords used against your client and break them over your knee one at a time without regard for pulling any positive information from the witness, or finishing with an obvious point the witness must agree with that makes their previous point look ridiculous. Don't forget, cross examination is your friend, use it as a tool. You pick the order of questions that best helps your client's position. It is also okay to jump back and forth between two or more unrelated points if you can get concessions or admissions from the witnesses on those points. Learning when to stop a cross examination and when to just not cross examine a witness at all is all about experience. If there is nothing you can gain, no positive point to make or concession your sure to draw out, sometimes it is better not to ask anything. In a civil case often the defense not asking any questions of a lay witness is more powerful than asking if they are friends and if the witness will do anything for their friend. Those questions just aren't helpful as the jury can put themselves in the position of the person testifying for a friend and would be annoyed by the implication the witnesses would lie for a friend. This does not mean you simply don't cross a tough witness. Often young attorneys will not cross a witness if they are unsure how to handle the witnesses and it appears to the jury that the attorney is admitting or consciously agreeing with the testimony. Even if you ask one question and make a point, even a little point, it makes since to ask that question if the witnesses hurt you. Less is often more in cross examination. Don't overreach and try to make the knockout blow in one sentence. The witnesses may not agree that it was a hard impact that could have injured someone, but they may agree with you that several people complained of pain at the scene, that the vehicle was pushed sideways by the impact, that the suddenness of the impact scared them, and that the plaintiff was very nice at the scene. Cross examination can also be the death of a thousand small cuts. I have seen good attorneys cut apart a witness and never go head to head with them. Instead they took individual statements they have made and by getting the witnesses to agree to these statements, that on a whole make them look ridiculous, accomplish more than they could have by attacking them directly. After conducting hundreds of cross examinations in trials and hearings, one resource still stands out; The Art of Cross-Examination by Francis L. Wellman. This book sets out the true art that is involved in examine a witness. I believe this book is now on the fourth edition and it gives a look into the human mind and the way humans interact that explains why attacking someone head on is so difficult. I cannot recommend this book enough. After reading the original book, recommended by my senior partner when I first began practicing law, the idea of attacking a witness through small, organized statements that they must agree with without taking the witnesses statements head on first began to make sense. I have always kept the information learned in this book in the back of my mind as I prepared for more and more cross examinations. One example in the book discusses multiple witnesses to the same incident each having slightly different perspective and thus each remembering the incident differently. You cannot change what someone believes they saw, but you can certainly get them to agree to enough facts so that the jury understands how those similar facts make your client's version of events more credible. The book also talks about the honest vs. dishonest witness. It is almost impossible to truly cross examine the dishonest witness as they will not agree with the facts that are obvious and will continue to push their viewpoint rather than the truth. Remember cross examination should not be about taking a sledge hammer to concrete, but instead like using a laser to cut a distinct line through marble.
A defendant or at fault party cannot destroy evidence. It is the duty of a party not to take action that will cause the destruction or loss of relevant evidence that will hinder the other side from making its own examination and investigation of all potentially relevant evidence. McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000). Spoliation of evidence is not a new concept and a party's duty to protect material evidence has been considered valid for 100 years in North Carolina jurisprudence. See, Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). Spoliation of evidence is where a party is on notice of a claim or potential claim, destroys or negligently loses the evidence that is relevant to the non-spoliator's allegations. McLain, 137 N.C. App at 186-187, 527 S.E.2d at 717-718. "Where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control . . . there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case." Jones v. GMRI, Inc., 144 N.C. App. 558, 565 (2001) (cert. granted 354 N.C. 218, 554 S.E.2d 339 (2001); cert. improvidently allowed 355 N.C. 275, 559 S.E.2d 787 (2002)), citing Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). A jury instruction on spoliation of evidence is required and failure to so instruct is reversible error when a party demonstrates that: (1) the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed; and (2) the missing evidence was relevant to the non-spoliator's allegations. McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. The law requires the trial court to instruct the jury on the law arising from the evidence presented. N.C. Gen. Stat. § 1A-1, Rule 51; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715; Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989). When a party requests a specific instruction, correct in itself and supported by evidence, the trial court must give that instruction. Calhoun v. Highway Comm., 208 N.C. 424, 426, 181 S.E. 271, 272; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715. Thus, if there is evidence that the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed, and the missing evidence was relevant to the non-spoliator's allegations, the failure to give the spoliation instruction is reversible error. See, McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. In the unpublished case of Elliott v. Food Lion the North Carolina Court of Appeals held that the admission of certain depositions was relevant to the issue of spoliation where Food Lion had failed to follow their own policies and procedures to secure relevant videotape and pictures. UNPUBLISHED Elliott v. Food Lion, L.L.C., 605 S.E.2d 742 (N.C.App. Dec 21, 2004) (WESTLAW, NO. COA03-1705). Thus, a party that attempts to destroy or hide evidence in a case to protect itself merely creates a later problem. The punishment for withholding or destroying evidence is a presumption that the withheld or destroyed evidence WOULD have helped the other party.