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Posts tagged "personal injury"

Spoliation: when Defendants Destroy Relevant Evidence

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.

Can Facebook or Other Social Media Affect My Case?

Can Facebook or Other Social Media Affect My Case?

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.

Contributory Negligence: Why in North Carolina a Green Light is not enough.

Have you ever driven through a green light in North Carolina?  Ever wondered how in North Carolina you can have the green light and someone can run a red light, severly injure you, and still not recover for your injuries?  North Carolina is one of a handfull of states that clinges to the antiquated notion of contributory negligence as a complete bar to recovery for negligence.  In other words if by your own actions you contribute one percent and the defendant is 99% at fault you still cannot recover in North Carolina for your injuries.   This is not new law.  In 1955 the Supreme Court of North Carolina looked at these issues in the Hyder case. Hyder v. Asheville Storage Battery Co., 242 N.C. 553,  89 S.E.2d 124 (1955).  In Hyder, the Court looked at what duties are owed regardless of whether you have a legal right to enter an intersection.   "Unquestionably it is the duty of the driver of an automobile approaching a street intersection, when faced with a municipally maintained traffic signal showing red, to stop before entering. It is also true that if faced with a green light the driver is warranted in moving into the intersection unless the circumstances are such as to indicate caution to one of reasonable prudence. Notwithstanding the driver is faced with green light, however, the duty rests upon him to maintain a reasonable and proper lookout for other vehicles in or approaching the intersection." Hyder v. Asheville Storage Battery Co., 242 N.C. 553, 556, 89 S.E.2d 124, 127-28 (1955).   The Court went on to state: 'The fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control".  Hyder v. Asheville Storage Battery Co., 242 N.C. 553, 557, 89 S.E.2d 124, 128 (1955).   The Court was clearly concerned about people automatially relying on the then very unreliable traffic control devices.  Although our deices have improved with technology, human error or the lack of the same is still an issue.  Even in 2011 we are still having courts in North Carolina trying to decide where the bright line is to absolve someone of responsibility for the negligence of others.   In the Bass case, the Court of Appeals, in an unpublished decision did a good job tracing the evolution of the need or lack thereof for contributory negligence.   "The fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control...." Bass v. Lee, 255 N.C. 73, 79, 120 S.E.2d 570, 573 (1961) (quoting Funeral Service v. Charlotte Coach Lines, 248 N.C. 146, 102 S.E.2d 816 (quoting Cox v. Freight Lines, 236 N.C. 72, 72 S.E.2d 25); citing Williams v. Funeral Home, 248 N.C. 524, 103 S.E.2d 714; Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543). However, "in the absence of anything which gives or should give him notice to the contrary, a motorist has the right to assume and to act on the assumption that another motorist will observe the rules of the road and stop in obedience to a traffic signal." Strathopoulos v. Shook, 251 N.C. 33, 36-37, 110 S.E.2d 452, 455 (1959) (quoting Cox, supra). Thus, the mere fact that plaintiff failed to observe traffic conditions east of the intersection is insufficient to establish that plaintiff was contributorily negligent as a matter of law, since "[w]hether such failure to look was a proximate cause of the collision depended upon whether, if he had looked, what he would or should have seen was sufficient to put him on notice, at a time when plaintiff could by the exercise of due care have avoided the collision, that defendant would not stop in obedience to the red light." Id. at 37, 110 S.E.2d 452, 110 S.E.2d at 455 (citing Currin v. Williams, 248 N.C. 32, 102 S.E.2d 455). As a result, the Supreme Court and this Court have held that evidence tending to show that a driver who entered an intersection in reliance on a green light while traveling at about 15 to 20 miles per hour and collided with a driver who entered the intersection against a red light while traveling at 35 to 40 miles per hour and who was approximately 100 feet from the intersection at the time that the plaintiff entered the intersection, Id. at 37, 102 S.E.2d 455, 110 S.E.2d at 456; that a driver who entered an intersection in reliance on a green light while looking ahead into the intersection rather than "sideways" and traveling at about 15 to 20 miles per hour collided with a driver who entered the intersection against a red light, Currin, 248 N.C. at 35, 102 S.E.2d at 457-58; that a driver who entered an intersection in reliance on a green light, after looking both right and left without seeing anything, and collided with another vehicle that entered the intersection at 35 to 40 miles per hour, Wright v. Pegram, 244 N.C. 45, 48-49, 92 S.E.2d 416, 419 (1956); and that a driver who entered an intersection in reliance on a green light without looking to his left, particularly given that his view was blocked by a school bus, and collided with another vehicle, Seaman v. McQueen, 51 N.C.App. 500, 504-05, 277 S.E.2d 118, 120-21 (1981), does not establish the existence of contributory negligence as a matter of law. See also Cicogna v. Holder, 345 N.C. 488, 489-90, 480 S.E.2d 636, 637 (1997) (stating that the issue of contributory negligence should not have been submitted to the jury when "[t] he only evidence presented was that the plaintiff had the green light and was struck by the defendant, who violated the red light."). Instead, the appellate courts in this jurisdiction have simply held that such evidence is sufficient to support the submission of a contributory negligence issue to the jury, with the jury given the responsibility for determining whether any contributory negligence on the part of the plaintiff barred his or her recovery. Bass, 255 N.C. 73, 120 S.E.2d 570 (holding that evidence tending to show that a driver who entered an intersection when the controlling traffic signal was green and made no effort to avoid a collision despite being warned that another driver had "run" a red light and was about to collide with his vehicle supported the submission of a contributory negligence issue to the jury).  After a careful examination of the relevant authorities, we have not been able to find any reported decision concluding that a driver who entered an intersection at a time when the light was green was contributorily negligent as a matter of law.  Bass v. Alvarado, 713 S.E.2d 251 (N.C. Ct. App. 2011)   Therefore, in North Carolina, you should continue to use caution while driving, and if you enter an intersection, don't forget... until we change our laws, you don't have an absolute right to enter... use good common sense and w  

Sovereign Immunity: or why I cannot sue most municipalities

One of the most bizarre and antiquated laws still existing in North Carolina is the law of sovereign immunity.  Like contributory negligence, where North Carolina is one of only a small hand-full of states with this doctrine, our sovereign immunity regulations continue despite our advances as a society.  The original reason for Sovereign immunity was to allow police and sheriff to make arrests and take other governmental actions without fear of suit for ordinary negligence.  This original logical reason has been expanded to any governmental function of a municipality.
Our Court of Appeals in one of its most recent opinions essentially sets out that the individual municipality is unfettered in taking whatever action it chooses with regard to waiver of immunity.
"As a general rule, the doctrine of governmental, or sovereign immunity bars action against, inter alia, the state, its counties, and its public officials sued in their official capacity." Herring v. Winston-Salem/Forsyth County Bd. of Educ., 137 N.C.App. 680, 683, 529 S.E.2d 458, 461 (2000) (citation omitted). The doctrine applies when the entity is being sued for the performance of a governmental function. Id. " '[S]uits against public officials are barred by the doctrine of governmental immunity where the official is performing a governmental function, such as providing police services.' " Parker v. Hyatt, 196 N.C.App. 489, 493, 675 S.E.2d 109, 111 (2009) (citation omitted). A town or municipality may waive sovereign immunity through the purchase of liability insurance. Satorre v. New Hanover Cty. Bd. of Comm'rs, 165 N.C.App. 173, 176, 598 S.E.2d 142, 144 (2004). However, " '[i]mmunity is waived only to the extent that the [municipality] is indemnified by the insurance contract from liability for acts alleged.' " Id. (quoting Combs v. Town of Belhaven, 106 N.C.App. 71, 73, 415 S.E.2d 91, 92 (1992)). "A governmental entity does not waive sovereign immunity if the action brought against them is excluded from coverage under their insurance policy." Patrick v. Wake Cty. Dep't of Human Servs., 188 N.C.App. 592, 596, 655 S.E.2d 920, 923 (2008).
Lunsford v. Lori Renn, --- N.C.App. ----, ----, 700 S.E.2d 94, 100 (2010), disc. review denied, --- N.C. ----, 707 S.E.2d 244 (2011).  Arrington v. Martinez, COA10-1204, 2011 WL 4389653 (N.C. Ct. App. Sept. 6, 2011).
In the Arrington case, the Court of Appeals set out that the City of Raleigh may set out specific rules for when it will waive immunity that includes that it will waive immunity when a case settles and may specifically agree that it never owes any pain and suffering.
'By statute, a City may, but is not required to, waive governmental immunity."  Arrington v. Martinez, COA10-1204, 2011 WL 4389653 (N.C. Ct. App. Sept. 6, 2011).
The court determined that the City of Raleigh's determination not to pay pain and suffering and to waive their immunity only upon a settlement and a release was neither "arbitrary or capricious" which would be the only waive to prove the city's waiver was invalid.
Instead the Court of Appeals found "North Carolina General Statutes § 160A-485(a) provides that a municipality may purchase insurance coverage and may waive its immunity to whatever extent it determines appropriate. It may also elect not to waive its immunity at all, in which case plaintiff would have no possibility of any recovery from the City."   Arrington v. Martinez, COA10-1204, 2011 WL 4389653 (N.C. Ct. App. Sept. 6, 2011).
Although the Court found that the waiver should be construed against the one waiving the immunity, their decision did not have much in the way of logical support for their position.  Instead the Court found that the city could just deny the claim therefore any payment they allowed was sufficient.

Personal Injury Trial: Jury Selection in an Automobile Collision Case

As I picked a jury this afternoon in an automobile accident collision case, I thought of the basics.  What am I trying to tell this jury about my case?  What am I trying to explore in this jury panel? If you ask attorneys who actually try a lot of cases, they will explain that voire dire or jury selection is part science  but mostly an art, developed by actually picking juries.  Some people are born to talk to twelve people about their client's case and can do so in such a natural way that the jury is drawn to them like a moth to a flame... Others, and I fall into this category, must work on picking a jury and constantly feel awkward and unnatural.  Asking questions and keeping the jury discussing issues when they would like to be doing anything but sitting there answering your questions is difficult.  Jury selection so that the jury stays interested ramps up the difficulty. You pick a civil jury after lots of hours of case preparation, development, depositions of all the parties and a really informed idea as to what you want to do with your case... or at least that is the preferable idea.  In many cases, the issues present themselves over time or dissolve or fail to dissolve as the evidence is pulled out of the various witnesses. When I'm picking a jury I am constantly having to slow myself down as I want the best jurors possible, I also, due to all the preparation, want to get started with my trial.  That is a mistake and one I deal with in every trial.  You cannot move past jury selection or for that matter any other part of a trial.  Each part, opening, closing, jury selection or each witness interviewed must be given whatever amount of time it takes to finish. What questions are really relevant?  After over fifty automoible trials, I'm more interested in the people on the panel and how they are going to interact with each other and what those people are going to think about my client than specific questions.  Nice, hard working people with a good work history who do not have a history of causing automobile accidents are honestly who I want, I want people like my clients.  Many of my clients have great work histories, work hard and try to get better and back to their normal lives as quickly as possible - just looking for more people just like they are

Supreme Court: No Liability for Generic Medication Manufacturers

Recent calls into my office have sparked my thoughts back to the non sequitur that is the recent decisions of our U.S. Supreme Court with regard to which injured plaintiffs may recover from drug manufacturer.

Personal Injury Case: Overview of an Auto Accident Trial

Many times the first time one of my client's injured in an automobile collision considers what will happen at trial is when we are in final trial preparation.  Obviously, we have tried all that I can to get my client's to think about trial, but it is just not real to many people until your about to have to pick a jury the next week. As a review, by the time you get to trial almost every client will have tried to settle or resolve the case pre-suit, answered written discovery about the case, had their deposition taken about their injuries and the effect of their injury on their lives, tried to settle the case at a court ordered mediation where a neutral mediator tries to assist in the settlement of the case, reviewed their own doctor's deposition about their injury and finally met with their own attorney several times to get ready for trial. One of my favorite mediators (mediators are most often attorneys who have been trained in alternative dispute resolution to help resolve the case) likes to say that although he has often found attorneys that get excited about trying cases, he has never seen a client that looked at his/her lawyer after the trial and wanted to pay them to do it all over again as it was so fun. Trial: the great equalizer.  At trial you will pick a jury and tell that jury about your injury, who caused it and why and then ask that jury to make you whole for your injuries.  Complex evidence rules and strange procedures will be used... so what's actually going on? In North Carolina, before you ever come into the courtroom, your attorney has prepared a pre-trial agreement for the defense attorney and the judge.  This agreement is what the parties agree upon (stipulate) and what the parties argue about or disagree.  In addition almost every time there has been motions heard about what evidence will and will not be allowed in by the judge.  Often what will be allowed or not allowed in will be critical to what questions and witnesses your attorney can use or call.  Always find out what happened in these conferences before you begin the trial. Once you arrive the judge will call the case, and put the first twelve jurors in the "box" or the jury seating area.  Often, depending on the judge, a few questions will be asked from the bench or perhaps the judge will tell the jury a little about what the case is about before turning the questioning over to your lawyer.  As you have the burden of proof the judge will allow the Plaintiff to go first in voire dire or jury selection.  Each side has eight (8) challenges for any reason.  The questioning goes back and forth between the sides until the jury is selected. After the jury is selected and impaneled (sworn to do their job as jurors) both attorneys will give their opening statement or forecast of the evidence in the case.  It is the first time the jury will actually hear what both attorneys believe the evidence will demonstrate as to damages and liability (whose at fault).  The attorneys job is for both to give as close as possible to an argument as to what the jury should do without actually causing an objection from the other side for arguing. After opening statement, evidence will be given.  As the client in a personal injury case, it is your one chance to tell your side of the story.  You've given your opinion numerous times about specific questions, but this is the first opportunity to actually tell the jury your story.  The difficult part is telling your story within the evidence rules.  You must listen to your attorney about how to testify.  Failure to follow your attorney's instructions will always result in a frustrating experience trying to tell your story. After all the testimony has been given, the defense (insurance company lawyer) will put on evidence.  In North Carolina never be surprised if the defense fails to put on any evidence.  If the insurance company lawyer doesn't put on any evidence they get to give the last argument to the jury... in North Carolina that is often worth its weight in Gold. After all the evidence has been presented, the parties meet privately with the judge outside of the hearing of the jury to discuss what instructions will be given the jury.  The jury instructions determine not just what the jury will be told to do, but what will be presented to the jury for them to determine in their final deliberations.  This is where the judge and the attorneys argue about such important items as future damages vs present damages vs past damages, same for medicals, permanency, scarring, etc. After the instruction conference both attorneys will have an opportunity to give their final argument to the jury.  The final argument is the last opportunity for the attorneys to discuss their interpretation of the evidence to the jury. The judge will then instruct the jury on the law and send them out to deliberate.  When the jury returns, there will be an answer to the question as to what that case is worth.  

Hurt in an automobile accident? Someone else at fault? How do you recover in North Carolina?

So you were injured due to no fault of your own in an automobile accident -- now how do you recover for your wages, medical expenses and harms?  In North Carolina you cannot directly sue the at fault driver's insurance company.  Nor do we have no fault insurance such as that found in New York, instead,   we only allow a recovery against the at fault driver and owner and only if the person injured did not contribute to his/her own injury. If you are injured in an automobile accident in North Carolina you must file suit against the person who injured you and then their insurance company will defend them and pay the judgment up to the amount of policy limits.  If they do not have insurance or do not have enough insurance another set of questions must be asked. Every driver in North Carolina is required to carry the minimum limits coverage of liability and uninsured motorist coverage to drive their vehicle.  The minimum limits currently are $30,000.00 per person and $60,000.00 per vehicle.  That means that no one person injured may recover more than $30,000.00 and regardless of the number of injured people the entire recovery is capped at $60,000.00. Does that mean that if there are serious injuries you cannot recover more than $30,000.00 from the defendant?  No!  If the defendant only has minimum limits you can obtain a judgment for more than $30,000.00 and recover the remainder against his/her personal property.  In North Carolina, it is extremely difficult, although our firm has done it numerous times, to recover the personal property of a defendant. In addition to liability coverage, you may be able to recover umbrella coverage.  Umbrella coverage is a type of universal coverage policy that protects a person in the case of any at fault liability.  An umbrella policy is often found when pursuing a former insurance professional due to the comprehensive protection in the policy. If the driver of the vehicle and the owner of the vehicle are not under the same policy, often you can pursue the insurance for both.  Often a child driving their parents vehicle is on the same policy (much like a spouse driving another spouse's vehicle) and you cannot have a separate recovery against the driver and owner of the vehicle.  However, if the owner and driver have separate insurance policies and both are not owners of the vehicle you may have a recovery against both policies. If a person was working at the time of the automobile crash, you may have a direct recovery against the employer as well as the employee.  This is often found with commercial drivers who cause automobile collisions.  Therefore, you must always know if the defendant was working at the time of the automobile collision. If a defendant has no insurance at all, you may recover as to your own uninsured motorist (UM) coverage.  UM coverage is required coverage that will pay if the defendant is uninsured.  You may recover up to the limit of UM coverage purchased. If the defendant has the minimum limits you can still recover above that coverage if you have purchased Under Insured Motorist (UIM) coverage.  This is non-mandatory coverage that allows you to recover above the amount of insurance maintained by the defendant up to the limit you have purchased.  In NC you can purchase up to a million dollars in UIM coverage. The short lesson from this blog is protect yourself by purchasing an umbrella policy and by purchasing as much UIM coverage as possible.

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