Brain Injury Attorney Blog

$5 Million Wrongful Death Suit

Thu, 09 Feb 2012 10:52:27 -0500

A Cincinnati-based school bus company paid $5 million this week to settle a wrongful death lawsuit in Missouri where one of the drivers ran over 16 year old Mason Adams. The Missouri case alleged a 23-year-old First Student bus driver failed to defrost or scrape the bus’ windshield and then drove the bus over a 16-year-old who was legally crossing the street on November 15, 2010. The wrongful death lawsuit was filed by the teen's mother, Bridgett Blasi because First Student, who has a contract with Cincinnati Public Schools to transport students, refused to admit its role in her son's death.

“What Ms. Blasi has been seeking for over a year was an apology and acknowledgment of responsibility from First Student,” said Blasi’s wrongful death attorney, Michael Kuckelman. The case was ready to go to trial on Monday, Kuckelman said, but that ended when First Student agreed to pay Blasi a $5 million settlement, to apologize, admit the company’s role in her son’s death and allow her to help its drivers learn from this case.

The bus' video showed the entire incident and revealed that the driver failed to properly defrost the windshield which resulted in the driver's inability to see the teen crossing the street in a crosswalk legally with the traffic light.

“First Student has agreed that the mother will have the opportunity to participate in training bus drivers to being a first-hand account of how people suffer from a company cutting corners,” her wrongful death lawyer said.

Defective vehicles and negligent driving behavior account for thousands of accidents and injuries each year. When someone dies as a result of another party's negligence, it may be grounds for a wrongful death lawsuit. Below are some of the most common types of accidents and injuries leading to wrongful deaths. If you or someone you know has a wrongful death case, you will need to speak with an experienced wrongful death attorney. Call one of the Myrtle Beach wrongful death lawyers to schedule a consultation.

Florida Crash Kills 10

Tue, 31 Jan 2012 09:59:26 -0500

Police suspect an arsonist may have started a smokey Florida brush fire that blinded drivers on Interstate 75 south of Gainesville, turning the highway into a death trap late Saturday night and into Sunday morning as drivers of cars and tractor trailers smashed into each other. 10 people were killed and 18 were injured; many remain in the hospital. "If it were arson, and we could determine who caused the fire, it would be manslaughter," Art Forgy of the Alachua County Sheriff's department said. Officials believe that this fire was intentionally set because there had been no reports of controlled burns or lightning strikes in the area.

Some vehicles involved in this crash caught on fire. According to authorities, one of the first vehicles to go up in flames was a FedEx truck. The vehicles were so mangled and burned that it took investigators more than 24 hours to identify the dead.

Only daylight would reveal the scope of the tragedy. For the majority of Sunday, traffic had to be diverted around the scene as authorities worked to recover the dead and try to figure out how the first wreck happened. The highways had been closed for a while before the crashes due to low visibility but were reopened. Now in the aftermath, many wonder why.

"We were aware that we had some bad conditions there. We were monitoring it, but we don't have a crystal ball. You know, as far as what we could have done, we took a proactive stance and you know we're always open to doing things better," a Florida State Trooper said.

According to the Centers for Disease Control and Prevention, car crashes are the leading cause of death among those age 5-34 in the United States. If you are injured in a car crash, you may want to speak with an experienced personal injury attorney in your area. The personal injury lawyer will help you recover damages related to your accident.

Call one of the Myrtle Beach personal injury lawyers at The Mace Firm to schedule your free consultation.

Children Injured at Home

Fri, 27 Jan 2012 09:03:14 -0500

Approximately 2,096 children in the United States, ages 14 and under, die from accidental injuries in the home each year and 3 million kids are treated in emergency rooms for accidental injuries that occurr at home. In 2004, approximately 2,300 children ages 14 and under died from unintentional injuries that occurred in the home and nearly 80 percent of these deaths were among children ages four and under. Most fatal injuries at home are caused by malfunctioning childrens toys, fire, suffocation, drowning, choking, falls, poisoning or firearms discharged unintentionally. If your child is injured due to a malfunctioning product, you may be able to file a personal injury claim.

Parents are urged to check homes for basic safety precautions. It is obvious that children need active supervision, but when you child-proof your home, you are provided with extra protection and peace of mind. The first step in child-proofing your home is to explore every room at your child's eye level. You should get down on your hands and knees to see how many small objects you can pick up. In addition to this, keep all cleaning products, medications, alcohol and firearms out of reach of your child.

Always supervise children while they’re in the bathroom. Set your water heater at 120 degrees and test the bathwater with your wrist or elbow before putting your child in it. Keep toilet lids closed and locked, and doors to bathrooms and laundry rooms closed. When not in use, put razors, curling irons and hair dryers out of reach. Never leave young children alone in the bathtub; a child can drown in a matter of seconds.

Ensure your baby has a safe sleep environment. Minimize your baby’s risks of Sudden Infant Death Syndrome (SIDS) by following the A,B,C's of safe sleep. Always place your baby alone, on his or her back, in a crib. Leave blankets, stuffed animals, and other soft objects or bedding out of the crib. Do NOT use sleep positioning devices. Make sure you discuss safe sleep practices with anyone who provides care for your child before the first day of care.

Wrongful Death Suit

Mon, 23 Jan 2012 13:59:10 -0500

Wronful death lawyers argued last week that a wrongful death lawsuit filed on behalf of Arturo Gatti’s daughter is a blatant attempt to capitalize on the late boxer’s fame and reputation in New Jersey and should be dismissed and instead moved to Brazil, where he died. Erika Rivera, mother of Sofia Bella Gatti, filed a wrongful death suit last fall against Gatti’s widow, Amanda Rodrigues-Gatti. The lawsuit was charging she was responsible for Gatti’s death in Brazil in 2009. Authorities in Brazil concluded Gatti died by suicide after first suspecting and detaining Rodrigues-Gatti.

In state Superior Court in New Brunswick on Friday, Rodrigues Gatti’s attorneys claimed Rivera, who lives in New Jersey, brought the action in New Jersey to benefit from Gatti’s reputation there. Last month, a Canadian judge sided with Rodrigues Gatti in a battle with his family over the boxer’s $3.4 million estate. One attorney argued that a trial arising from the lawsuit should be held in Brazil because Rodrigues Gatti lives there, as do any witnesses who saw the couple on the night in question.

The Canadian judge ruled Gatti’s last will, written weeks before his death, was legitimate and awarded Rodrigues-Gatti his entire estate. Gatti’s family argued that she made his sign the will. Last week, Berman questioned why Rivera’s wrongful death claim wasn’t added to the Canadian trial instead of being filed separately.

Gatti’s body was found in July 2009 at an apartment he, his wife and their son had rented in the Brazilian seaside resort of Porto de Galihnas. Police ultimately concluded Gatti hanged himself with a handbag strap from a wooden staircase column in their apartment.

When filing a wrongful death suit, the statute of limitations must be considered. Each state has a time limit on when a person can file a wrongful death lawsuit. If you fail to file your action on time, you will be barred from ever filing it.

The types of damages that may be available to you in a wrongful death lawsuit include the following:

•Medical and funeral expenses connected to the death;
•Loss of the victim’s expected earnings between the time of the death and the expected retirement or death;
•Loss of benefits like pension plans, medical coverage, and so on;
•Loss of inheritance;
•Damages for mental anguish or pain and suffering of the survivors;
•Loss of care, protection, nurturing, and companionship of the survivors;
•Punitive Damages

If you or someone you know would like to file a wrongful death lawsuit, you will need to speak with a good wrongful death attorney in your area. Our experienced Myrtle Beach wrongful death lawyers at The Mace Firm are ready to speak with you about your case.

Head Injuries

Fri, 20 Jan 2012 10:09:22 -0500

Head injuries include both injuries to the brain and those to other parts of the head, such as the scalp and skull. Head injuries may be closed or open. A closed head injury is where the brain mater remains intact. In these cases, the skull can be fractured, but not necessarily. A penetrating head injury occurs when an object pierces the skull and breaches the brain mater. Brain injuries may occur over a wide area, only be located in a small area.

The number of new cases of head injury is 300 per 100,000 per year (0.3% of the population), with a mortality of 25 per 100,000 in North America. Head trauma is a common cause of childhood hospitalization. Common causes of head injury are car accidents, accidents at home or at work, falls, and assaults.

Surprisingly, experts have suggested that helmets may increase the risk of neck injury in a crash or fall. This is especially the case for children because they have a greater head to body ratio.

Usually, people buy helmets to protect their head in case of an accident. For instance, skiers and snowboarders use helmets to prevent a serious head injury. A study conducted in Europe, Asia and North America found that helmet use in recreational activities is benficial. However, the study failed to determine if the design, quality, or fit of the helmet had an impact on the helmet's protection. Experts also determined that "risks of head injury can be reduced by 35%...and between 2 and 5 of every 10 head injuries among helmet users could be prevented."

If a person is injured while playing a sport, a traumatic brain injury could likely happen. Brain injuries don't necessarily reslut in a long-term disability. The location of the injury and the extent of the damage caused have a huge effect on the outcome.

If you or someone you know has suffered a traumatic brain injury due to an accident or an assualt, it would be wise to consult with an experienced injury attorney in your area. The Myrtle Beach injury lawyers at The Mace Firm are ready to speak with you about your case. Call today to schedule your free consultation.

Georgetown County Crash

Tue, 10 Jan 2012 09:02:41 -0500

Two brothers died Friday night when their Chevrolet Corvette ran into the side of a log truck trailer being backed across the road. The car accident happened around 9:45pm on Friday. South Carolina Highway Patrol reported that a 2011 Corvette slammed into a log truck that was backing into a driveway. Both men died on the scene from blunt force trauma. The driver of the log truck was not injured in the crash.

In Charleston County, one person was killed Saturday night after a motorcycle accident. According to witnesses at the scene, the motorcycle was seen as it ran off the right side of the road and the operator flipped off the bike. A second person sustained serious injuries as a result of this crash.

Despite significant safety improvements in automobile and in the design of roads, car accidents remain quite common. It is likely that any given person will be involved in at least one serious automobile accident during his or her lifetime. Not every car accident will result in litigation. Where nobody is injured or injuries are minor, it may be possible to resolve all claims for medical care and property damage directly with the drivers' car insurance companies. The greater the damage or injury that results from a car accident, the more likely it is that a lawsuit will follow.

Most automobile accident litigation involves two vehicles, with a driver or passenger from the first vehicle claiming that the driver of the second vehicle caused the accident through negligent driving. Sometimes the litigation will involve the driver and passenger of a single vehicle, with the passenger claiming injury as a result of the driver's negligence.

If you or someone you now has been injured in a car crash, you may want to speak with an experienced injury lawyer in your area. Call one of the Myrtle Beach injury lawyers at The Mace Firm to schedule your free consultation.

Family Law Appeals

Fri, 06 Jan 2012 15:04:16 -0500

Appellate law is a specialized area of the law with its own technical rules and procedures. After a trial and a final order has been issued, one party may be dissatisfied. Usually, parties will file a motion to amend the order, setting out how the judge made a mistake. If the judge did in fact make a mistake, it should be brought to his or her attention so that it can be corrected. Generally, judges do not grant motions to amend since they have already considered the issues when they issued the final order. Once the motion to amend has been ruled on, the dissatisfied party has thirty days to file a notice of appeal with the South Carolina Court of Appeals.

A notice of appeal delays the ruling of the Family Court until the appeal is over. If a party is contesting the divorce itself, the parties may not be divorced. All matters of property division are put on hold which means that the parties are in pretty much the same situation regarding property division they were at the beginning of litigation. Child support, alimony, Custody Orders are not put on hold.

The dissatisfied party may file a petition for writ of supersedeas which asks the Court of Appeals to supercede, modify, or change the Order while the matter is being appealed. Generally, the Court of Appeals does not grant these petitions; however, the court has changed custody to the other parent pending a hearing on the appeal. The court can even change the amount or the liability of alimony or child support.

The appellate process is not a quick process. The process can take anywhere from one to three years. The family law attorney has to order the trial transcript from the court reporter which can take up to six months to receive the transcripts. Once the attorney receives the transcripts he or she has various periods of time to file the initial brief, then the opposing attorney has various periods of time to file the response brief. The time for the briefs to be filed can be extended and are many times.

Another potential problem that can make the appeal process take longer is bankruptcy. When people find themselves in a poor financial situation or a husband who is not happy with the result in Family Court sometimes will resort to bankruptcy. Bankruptcy court is a federal court which takes precedence over state court which means that everything in state court will be delayed until the bankruptcy proceedings are complete. The judge can modify alimony or child support payments, stay any transfer of property and manage the bankrupt's estate according to the bankruptcy laws.

Sometimes a bankruptcy judge will reduce the alimony and child support so that the debtor is able to pay off his or her debts. Recently, Congress has recognized that the bankruptcy laws should not be used to interfere with the orders of Family Courts. Unfortunately, family law lawyers are not specialized in the bankruptcy area so a bankruptcy attorney will have to be hired to protect the husband or wife's interests.

If you are dissatisfied with your final order from the family court, please call one of our experienced South Carolina Appeal attorneys at The Mace Firm.

Defenses and Damages in a Wrongful Death Case

Wed, 04 Jan 2012 12:52:28 -0500

Defenses to a wrongful death action include contributory negligence of either the decedent or the beneficiaries, the statute of limitations, the Tort Claims Act limitations, and charitable immunity.

Contributory negligence is a defense requiring the defendant to show the plaintiff was negligent and that the negligence was the proximate cause of the injuries. Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence. Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence. The negligence of a beneficiary affects only that beneficiary's claim.

The applicable statute of limitations is three years from the death. The tolling provisions of the statute are inapplicable to suits brought on behalf of minor beneficiaries. Because wrongful death actions are to recover damages for injury to the person, the health care provider statute of limitations is applicable to wrongful death actions.

The South Carolina Tort Claims Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity. The Act specifically provides for wrongful death claims. It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action. For example, the Act provides for a two year statute of limitations unless a claimant first filed a claim pursuant to the Act, in which case the limitation is three years. Where an action is against a physician or dentist, there are additional important considerations.

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981, there is a statutory limitation on liability for charitable organizations. A charitable organization is any organization, institution, association society, or corporation which is exempt from taxation pursuant to 26U.S.C501(c)(3) or (d). A person sustaining injury or dying as a result of a tortious act of commission or omission by an employee of a charitable organization acting within the scope of his or her employment, may recover no more than the liability imposed under the Tort Claims Act for actual damages sustained. Unless it is proved that the employee acted recklessly, willfully, or in gross negligence, an action against the charitable organization is a complete bar to recovery against the employee. Where a defendant is both a governmental and charitable organization, the Tort Claims Act provides the exclusive remedy, and the action is governed by it rather than the charitable immunity statute.

Damages in a wrongful death case are not determined by the value of life lost, but by the damages suffered by the beneficiaries. The beneficiaries may recover all damages, present and prospective, which are naturally the proximate consequence of the wrongful act including: 1. pecuniary loss, 2. mental shock and suffering, 3. wounded feelings, 4. grief and sorrow, 5. loss of companionship, and 6. deprivation of the use and comfort of the intestate's society including the loss of his experience, knowledge, and judgment in managing the affairs of himself and his beneficiaries.

The plaintiff must show evidence of a pecuniary loss to recover it as an element of damages, but where there is no pecuniary loss, other damages are still recoverable. Punitive damages may be awarded in a wrongful death action.

The court has held that evidence of remarriage of a surviving spouse or separation prior to death and subsequent remarriage are inadmissible on the issue of damages. By statute, damages to parents of a deceased child may be denied or limited where it is determined that a parent failed to reasonably provide support for the decedent and did not otherwise provide for the child's needs during his or her minority.

If someone you know has had their life wrongfully taken from them, please contact one of our South Carolina wrongful death lawers at The Mace Firm to schedule a free consultation. Our wrongful death attorneys are here to help walk you through the process of recovering from the negligence of others.

Elements of a Wrongful Death Case

Fri, 30 Dec 2011 14:52:29 -0500

Wrongful death is a tort action governed by statute. At common law the liability and cause of action for wrongful killing died with the injured person, and thus only through legislation do statutorily designated beneficiaries gain a cause of action for their losses. The action is brought by the administrator of the decedent's estate on behalf of the statutory beneficiaries.

A wrongful death may be the result of an intentional tort. The cause of action might also be based on products liability or breach of warranty, although more usually it will be brought as a negligence action. In order to recover in a wrongful death action based on negligence, the plaintiff must show: 1. a duty of care owed by the defendant to the decedent; 2. a breach of that duty by a negligent act or omission; 3. damages proximately resulting from the breach.

The duty of care owed to a decedent by a defendant in a wrongful death case will be determined by the nature of the action, for example, medical malpractice; premises liablity; automobile negligence. The duty may also be based on statute. The South Carolina Supreme Court has said that in order to show a duty of care based on a statute, the plaintiff must show: 1. that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; 2. that he/she is a member of the class of persons the statute is intended to protect. Generally, a duty of care is that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care.

The plaintiff must show the defendant breached the duty of care. Generally, a breach of duty exists when it is foreseeable that conduct may likely injure a person to whom a duty is owed. For example, in a medical malpractice case the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures. If the plaintiff shows a duty arising from a statute and that the defendant violated the statute, the element is met by proof of negligence per se. A violation of administrative regulation may also constitute negligence per se.

The plaintiff must show the breach of duty was the proximate cause of the injury. The South Carolina Supreme Court has said proximate cause requires proof of: 1. causation and fact and 2. legal cause. Causation in fact is proved by establishing the injury would not have occurred but for the defendant's negligence. Legal cause is proved by establishing foreseeability. Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury and you will need a good wrongful death lawyer to go to court with you. Please contact The Mace Firm to schedule a consultation with one of our wrongful death attorneys.

Negligence Defenses

Wed, 21 Dec 2011 15:30:20 -0500

The statute of limitations applicable to injuries to the person or rights of another is three years for actions arising on or after April 5, 1988, and six years for those arising before that date. Actions initiated under the provision must be commenced within three years after the plaintiff knew, or by the exercise of reasonable diligence should have known, that a cause of action existed.

Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent and that the negligence was the proximate cause of the injuries. Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence. Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.

The "unforeseeable incapacity" defense may protect a defendant from liability in some cases.

The South Carolina Tort Claims Act waives the immunity of the State, its agencies, political subdivision, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action. One is the statute of limitations which is two years, unless the claimant first files a claim pursuant to the act in which case the limitation is three years. Another limitation is that governmental entities are not liable for a loss resulting from "employee conduct...which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude... Ordinarily, only the governmental entity may be named as a party defendant, and the employee committing a tort while acting within the scope of his or her official duties is not personally liable unless the conduct in question constituted actual fraud, actual malice, intent to harm, or was a crime of moral turpitude. If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.

The public duty rule is a negative defense that denies the existence of a duty of care to an individual plaintiff. Under the rule of public officials are generally not liable to individuals for negligence in the discharge of their public duties because the duty is owed to the public at large and not to any single individual.

Assumption of the risk is a defense to negligence that is recognized in South Carolina in two forms: express assumption and implied assumption. Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it. A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981, the decision does not have retroactive application. There is a statutory limitation on liability for charitable organizations. A "charitable organization": is any organization, institution, association society, or corporation which is exempt from taxation pursuant to" 26 U.S.C. 501(c)(3) or (d). A person "sustaining injury by dying as a result of a tortious act of commission or omission by and employee of a charitable organization acting within the scope of his or her employment, may recover no more than the liability imposed under the Tort Claims Act for actual damages sustained. Unless it is proved that the employee acted recklessly, willfully, or in gross negligence, an action against the charitable organization is a complete bar to recovery against the employee. Where a defendant is both a governmental and charitable organization, the Tort Claims Act provides the exclusive remedy, and the action is governed by it rather that the charitable immunity statute.

Proving Negligence

Tue, 13 Dec 2011 11:37:55 -0500

Negligence is the breach of duty of care owed to the plaintiff by the defendant. Generally, under common law, there is no duty to act. An affirmative duty to act exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance.

In order to recover in any negligence action, the plaintiff must show: 1. a duty of care owed by the defendant to the plaintiff; 2. a breach of duty by a negligent act or omission; and 3. damages proximately resulting from the breach.

1. A duty of care is that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care. The duty to act may rise from statute, contract, relationship, status, property interest, or some other special circumstance. In order for there to be a duty of care based on a statute, the plaintiff must show: 1. that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and 2. that he/she is a member of the class of persons the statute is intended to protect. For example, dram shop liability is based on statutory duties imposed on establishments licensed to sell alcoholic beverages that prohibit them from serving minors or intoxicated persons. Other duties arise from the relationship between parties as in negligent misrepresentation where the defendant possesses expertise or special knowledge that would ordinarily make it reasonable for the plaintiff to rely on the defendant, and the defendant has a pecuniary interest in a transaction between the parties. Premises liability is a tort in which the duty is dependent on the status of the plaintiff. A defendant, for example, owes an invitee a duty of due care to discover risks and take safety precautions to warn or eliminate unreasonable risks within the area of invitation. The duty owed to a licensee is to use reasonable care to discover and avoid injury to him or her and to use reasonable care to warn against any concealed dangerous conditions or activities known to the possessor, or any change in the condition of the premises which may be dangerous, and which the licensee may reasonably be not expected to discover. A possessor of property owes no duty to a trespasser except to do no willful or wanton injury.

2. Generally in a negligence action the plaintiff must show the defendant did not use the amount of care on ordinarily would have under the circumstances. If the plaintiff shows a duty arising from a statute and that the defendant violated a statute, the element is met by proof of negligence per se. A violation of an administrative regulation may also constitute negligence per se. In a medical malpractice action, the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures. The defendant's failure to conform to that standard must generally be shown by expert testimony unless the subject matter is within common knowledge and experience.

For a plaintiff to recover for injuries caused by a dangerous or defective condition on the defendant's premises it must be shown that: 1. a specific act of the defendant created the condition; 2. the defendant had actual knowledge of the condition; or 3. the defendant had constructive knowledge of the condition.

In "slip and fall cases," which many premises liability actions are, constructive notice is shown by proving a foreign substance had been on the floor for a sufficient time to be discovered and removed in the exercise of ordinary care.

3. The plaintiff must show the breach of duty was the proximate cause of the injury. A plaintiff is not, however, required to prove that the defendant's negligence was the sole proximate cause of the injury. The South Carolina Supreme Court has said: Proximate cause requires proof of 1. causation in fact and 2. legal cause.

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.

Over $7 Billion Per Year On D.C. Crashes

Wed, 07 Dec 2011 09:15:50 -0500

The cost of all the fender benders, medevacs, lawsuits and lives lost on the nation's most conjested roads has a very high price tag--$7.4 billion per year. The National Highway Traffic Safety Administration for the D.C. area recorded 350 traffic deaths and 45,566 injuries in 2009. If any good news can be found in this latest attempt to quantify the damage done to lives and property, it might be that, crashes cost less in this area than they do nationwide. This is apparently because the slow-speed car accidents of cars caught in congestion do less damage and cause fewer deaths and injuries than those that occur at highway speeds.

To come to their monetary conclusions, researchers used highly sophisticated federal guidelines that place value on a lost life, lost wages, time lost at work, effect on the quality of life and other factors. But the cost of congestion to Washington drivers was ranked fourth highest in the nation at almost $3.9 billion a year in the Texas Transportation Institute’s annual report for 2011. That study — which said Washington had the worst congestion in the United States — put the annual additional cost of commuting in rush hour here at $1,495. The institute, which is based at Texas A&M University, in College Station, found that Washington drivers were spending more than three days a year caught in traffic! Additionally, the Census Bureau confirmed the grip of gridlock on the region, determining that Maryland drivers, thousands of whom drive to work in D.C. or Virginia, have the longest average commute in the nation.

Here in South Carolina, the total number of traffic fatalities has dropped since 2005. Although this is great news, there are still many dangers on South Carolina roads and highways. When you're injured in a car crash, insurance companies typically look first to how much money has been spent and/or lost by the injured person when determining recovery. You may expect to recover any money spent or lost as a result of your injury. There are damages, however, that are harder to place a dollar value on. This includes pain and suffering or mental anguish. An insurance company may use a formula to ascertain what an appropriate damage amount might be for these types of claims. Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties.

If you or someone you know has been injured in a car crash, you may need to speak with a personal injury lawyer in your area. The Myrtle Beach personal injury lawyers at The Mace Firm are ready to speak with you about your accident. Our personal injury lawyers in Myrtle Beach are prepared to speak with you today; call to schedule your free consultation.

Brain Injuries

Thu, 10 Nov 2011 09:01:02 -0500

Scientists in the UK and Belgium have uncovered a new way of communicating with paitients who have brain damage. The method, called EEG, is painless and only involves sticking electrodes to their heads. All of the patients in the trial had been diagnosed with severe brain injuries and were in a vegetative state. When a person is in a vegitative state, they are awake but have no awareness of their surroundings or themselves. In the trial, "patients were asked to imagine wiggling their toes or squeezing their right hand. The brain activity of three of the 16 patients showed they were repeatedly able to follow commands." Helen Gill-Thwaites, a consultant in the diagnosis of low awareness states at the Royal Hospital for Neuro-disability (RHN) in Putney said: "For a small proportion of patients EEG could be a very useful tool in the diagnostic process."

Severe brian injury, also called Traumatic brain injury (TBI), is a form of acquired brain injury, and occurs when a sudden trauma causes damage to the brain. TBI can result when the head suddenly and violently hits an object, or when an object pierces the skull and enters brain tissue. Symptoms of a TBI can be mild, moderate, or severe, depending on the extent of the damage to the brain. A person with a mild TBI may remain conscious or may experience a loss of consciousness for a few seconds or minutes. Other symptoms of mild TBI include headache, confusion, lightheadedness, dizziness, blurred vision or tired eyes, ringing in the ears, bad taste in the mouth, fatigue or lethargy, a change in sleep patterns, behavioral or mood changes, and trouble with memory, concentration, attention, or thinking. A person with a moderate or severe TBI may show these same symptoms, but may also have a headache that gets worse or does not go away, repeated vomiting or nausea, convulsions or seizures, an inability to awaken from sleep, dilation of one or both pupils of the eyes, slurred speech, weakness or numbness in the extremities, loss of coordination, and increased confusion, restlessness, or agitation.

Nearly 1.7 million people in the United States sustain traumatic brain injuries each year from common causes such as auto accidents and falls. In addition, American Service members serving in Iraq, Afghanistan and other parts of the world face unique risks of traumatic brain injury from routine military operations, enemy fire and explosive devices. According to the DoD, in the past 12 years, more than 200,000 Service members deployed worldwide have been diagnosed with traumatic brain injury, adding to the urgent need for preventive methods and treatments. Total costs of traumatic brain injury in the United States - including medical care, lost wages and other expenses - exceed $60 billion.

If one of your family members has suffered a traumatic brain injury, you may need to speak with a brain injury lawyer in your area. The experienced brain injury lawyers in Myrtle Beach are ready to speak with you about your case. Call The Mace Firm to schedule your free consultation with one of our Myrtle Beach brain injury lawyers.

Children and Divorce

Tue, 25 Oct 2011 10:35:16 -0500

Getting a divorce can be emotionally challenging for all parties involved, but it can be especially difficult for children. Children often do not really understand why their parents need to divorce. A recent article in the Huffington Post argues that "parents need to be more mindful of their children’s well-being during a divorce, and that our culture should allow families experiencing divorce more time to adequately 'grieve' the loss of their past life."

Getting a divorce requires proper planning so that your children don't end up feeling ignored. Treating your children poorly during your divorce sounds terrible, but it happens too often due to the fact that over one million children younger than 18 see their parents get divorced. In the Huffington Post article, a therapist offers tips for parents who are looking to ensure the emotional health of their children during and after their divorce. First, the author advises parents to seek counseling for their children, even if it is only one appointment with a therapist. If you are unsure about where to find a counselor, you may ask your divorce lawyer if he or she knows of any helpful post-divorce therapists. Next, parents should explain the divorce to their children, and ensure them that both parents still love them as much as they did when they were married. Additionally, parents should explain that the children can still love both parents, and will never be expected to choose sides.

Parents must take responsibility for their actions and be careful not to convince their children that one parent is superior over the other. Your children should never be used as advocates in your disputes. Children can easily identify negative emotions, so parents should also be aware that they must let go of any hatred of their former spouse. Recovering from your divorce is a long process and its potential positive effects will not occur overnight.

If you or someone you know is considering divorce, it will be beneficial to you if you consult with an experienced divorce attorney in your area. Our Myrtle Beach divorce lawyers are ready to speak with you about your case. Call one of the divorce lawyers in Myrtle Beach to schedule your consultation today.

$36 Million Settlement in Wrongful Death Suit

Tue, 25 Oct 2011 10:00:41 -0500

The husband of a woman who died in a Rockford train derailment in 2009 was awarded $22.5 million to settle a wrongful death lawsuit against three railroad companies, officials announced this week. Jose Tellez, 40, was with his wife Zoila and their daughter on June 19, 2009 when a Canadian National Railway Company train with 114 cars including 74 tankers filled with ethanol derailed as it travelled from Freeport to Chicago, according to a press release issued by Corboy and Demetrio, lawyers for the man. That case was settled before trial, officials said.

Zoila Tellez, 44, pf Rockford, was killed as she ran from their car while on fire from the explosions that resulted after the derailment, according to the lawyers. Jose Tellez also was badly burned as he tried to flee for safety. The family was waiting for the train to pass when 18 cars containing two million gallons of ethanol derailed nearby at a washout a few yards west of the intersection and caused the explosion and "massive fire ball" which engulfed the family's car, according to the law suit filed in Cook County Circuit Court.

In addition to the settlement for Jose Tellez, the couple's 19-year-old daughter who was in the car at the time was awarded $13.75 million for injuries she sustained. The woman was about 6 1/2 months pregnant at the time and lost the baby as a result of her injuries. Her case, which was represented by the Joseph Parente Law firm was settled during jury deliberations, officials said.

In the wrongful death suit, filed against the Canadian National Railway Company, plaintiffs alleged that it was negligent in the operation, maintenance and supervision of the train. The suit also claimed the company was negligent in the maintenance and inspection of the railroad track. Along with the Canadian company, the suit also named its subsidiary companies, the Illinois Central Railroad Company and the Chicago, Central & Pacific Railroad Company as defendants.

Applying the law can be complicated, and the best way to be sure you are protecting your rights is to consult with a wrongful death lawyer who is experienced in your state. If you feel that you have a valid claim for the wrongful death of a family member, you should consult with an experienced wrongful death attorney in your area. Hiring a good wrongful death lawyer is very important when tragedy strikes. Call one of the Myrtle Beach wrongful death lawyers at The Mace Firm for a free consultation.