North Carolina Personal Injury Lawyers Blog

Distracted Driving Car Accidents in Asheville and Elsewhere Targeted with New NSC Kit

Sun, 20 May 2012 07:05:31 -0500

Employers from across the U.S. are realizing the dangers that are presented on our roadways when workers use their cell phone behind the wheel. To help to make our roadways safer for everyone, employers are taking it upon themselves and their companies to implement comprehensive cell phone policies.

To help these employers, the National Safety Council is recommending policies that ban the use of both handheld and hands-free devices behind the wheel. The Council recently announced the release of an updated Cell Phone Policy Kit that aims to keep up with the most recent distracted driving trends and statistics.

Companies, communities and organizations are all encouraged to take advantage of the NSC Cell Phone Policy Kit. By implementing more laws and regulations to regulate distractions behind the wheel, we can work our way to safer roadways be helping to reduce the risks of car accidents in Asheville and elsewhere.

In a 2009 survey conducted by the NSC, more than 2,000 NSC members responded and concluded that nearly 500 companies ban the use of both hands-free and handheld devices for some or all of its drivers. Nearly all of those who were surveyed said that productivity remained the same.

Our Asheville car accident lawyers understand that distracted driving is alarmingly common on roadways worldwide. According to recent surveys, drivers understand the dangers that are presented by distracted driving and support measures to help to stop this behavior, but still drivers aren't willing to hand up the phone behind the wheel. Currently, there are 35 states that prohibit all drivers from texting behind the wheel. There are only 9 states, including the Virgin Islands and DC that prohibit all drivers from using handheld cell phones. In addition, there are 30 states, as well as DC, that ban novice drivers from using a cell phone while driving.

Still, with these laws in place our country saw nearly 5,500 roadway fatalities in 2009 because of distracted driving. Included in these statistics are another 450,000 injuries. Officials believe that this number is actually much higher as they believe that not all cases of distracted driving were reported in accident reports. With the statistics that we do have, nearly 20 percent of all fatal accidents involved a distracted driver.

The NSC Phone Policy Kit Includes:

-A sample of an effective comprehensive cell phone kit.

-FAQs.

-A sample letter for the NSC President to company employees.

-Various posters and tip sheets to help to raise awareness about and educate employers of the dangers of distracted driving and of the new policies.

-A one year plan and roll out calendar.

-Various activities to help employers to discuss the topic of distracted driving. It's important to get everyone on the job on the same page!

Motorcycle Accidents in Charlotte and Elsewhere Targeted through Campaign

Fri, 18 May 2012 12:44:38 -0500

There were nearly 31,000 motorists cited throughout the state during this year's "Motorcycle Safety Awareness" Campaign, which took place from April 30th through May 6th.

Motorists were handed various traffic and criminal citations during this time by both local and state law enforcement officials. This campaign aims to raise awareness about motorcycles on our roadways and to help to reduce the risks of accidents in Charlotte and elsewhere.

"State and local law enforcement agencies across the state stepped up patrols and conducted training during the week-long campaign to educate cyclists and motorists about the importance of motorcycle safety," said Governor's Highway Safety Program (GHSP) Director Becky Wallace.

Our Charlotte accident lawyers understand that motorcyclists have some of the highest fatality rates of all drivers. As we head into the summer months we can only expect more and more motorcyclists on our roadways. These motorists are oftentimes overlooked on our roadways and with the little protection, they're likely to be seriously injured or killed in traffic accidents across the nation. For that reason, safety officials believe it's important to raise awareness about these vulnerable motorists.

During this year's safety campaign, officials with the GHSP worked alongside various law enforcement agencies to conduct a number of motorcyclist safety rider training programs statewide. In addition to these efforts, Bike Safe North Carolina conducted a number of motorcycle safety training classes throughout North Carolina. These classes will be continuing on throughout the remainder of the month.

In 2011, there were nearly 200,000 registered motorcycles in the state of North Carolina. During this time, there were more than 4,115 motorcycle accidents. These crashes ended up taking the lives of more than 140 motorcyclists and injured another 4,000, according to the North Carolina Department of Transportation (NCDOT).

To help to further the education, the GHSP offers these safety tips to motorists:

-Motorists and motorcyclists are required to share the road with one another. Motorcycles have the right to a full lane of traffic. They follow the same road rules as you and I and should be treated with the same respect as any other driver.

-Stay alert behind the wheel. Motorcyclists can easily get lost in traffic and in a vehicle's blind spot. Be sure that you take an extra second to look through traffic for these small motorists before making a maneuver in traffic, whether it's a turn or a lane change.

-Make sure that you keep a safe distance from motorcyclists. Allow more following distance behind these vehicles.

-Be cautious. The turn signals on motorcycles are not self-canceling. Sometimes riders can forget to shut them off. Make sure a biker's signal is for real.

Company Pays out $109M in Dog Bite Injury Claims in Asheville and Elsewhere in 2011

Wed, 16 May 2012 09:22:34 -0500

Dogs are more dangerous than you think. As a matter of fact, recent statistics from State Farm Insurance show it paid out nearly $110 million for nearly 4,000 dog bite claims in just 2011, according the Mansfield News-Journal.

And that's just that one insurance company. You can imagine what the total payout for these injuries were - A LOT! Loretta Worters, a spokesman for the insurance company, estimates that insurance companies nationwide dished out nearly $500 million throughout 2011 for dog-bite injuries in Asheville and elsewhere.

In 2010, State Farm paid out only about $90 million for these claims. Experts are trying to determine the reason for the increase. Every year, more than 4 million people are bitten by dogs. About half of these victims are children. Nearly 1 million of these victims had to seek medical attention following these accidents. To make matters even worse, nearly 20 die every year from dog bite injuries.

Our Asheville dog bite attorneys understand that some are at higher risks for these accidents than others. Children between the ages of 5- and 9-years-old and Postal Service workers are two of those groups. For just Postal Service workers, more than $1 million was dished out for these injuries. Dogs of all shapes and sizes can attack. Even the calmest of dogs can snap and can attack. It's important to practice caution around all dogs, even the ones you know. Many dog bite accidents happen when people are bitten by familiar pups.

For these reasons, the third full week in the month of May is always used as National Dog Bite Prevention Week. During this time, the American Veterinary Medical Association, the U.S. Postal Service and State Farm release various dog bite statistics and launch a number of dog bite-awareness campaigns to promote dog safety.

The average cost in 2011 for one is these injuries was nearly $29,000, said Martinez.

In the state of North Carolina, a dog owner faces misdemeanor penalties if a dangerous dog attacks someone and causes physical injuries that require medical attention or treatment in excess of $100. Owners also face strict liability in civil damages for any injuries or property damage the dog inflicts upon a person, another animal or a person's property. If someone suffers from a dog bite injury and requires medical treatment, they're required to report it to a health director and the dog must be confined for ten consecutive days for monitoring purposes.

A Dangerous Dog:

-A dog that, without provocation, inflicts serious injury or kills someone.

-A dog that has been determined by a Board by the county or municipal authority responsible for animal control to be dangerous because the dog has previously engaged in one or more of the behaviors.

-A dog that has been harbored or owned for any reasons pertaining to dog fighting. Any dog that has been trained to fight will be considered dangerous.

What Does the Small Print in Your North Carolina Car Insurance Policy Mean? Consult Vann v. Mercury

Mon, 14 May 2012 22:38:32 -0500

The legalese in car insurance policies can be very intimidating. And if you are denied benefits in your Carolina vehicle accident case, you may not understand why.

Having an experienced Carolina injury attorney can mean the difference between getting your insurance benefits and going medically untreated.

A recent case out of New Jersey deals with questions arising from insurance policy exclusions. Vann v. Mercury Indemnity Company, No. A-4264-10T4 (N.J. Apr. 25, 2012). Richard Vann (plaintiff) worked as a truck driver for his father's company named Vann Trucking. Vann Trucking owned three trucks which they used to attach and transport trailers. Plaintiff preferred using just one of the trucks for the three to five days a week that he was working with Vann Trucking.

Plaintiff had an automobile insurance policy with Mercury Indemnity Company (defendant) for the two personal passenger vehicles that he owned. Under this insurance policy, the defendant was to pay personal injury protection (PIP) benefits and med-pay benefits. Vann Trucking had a commercial policy with a different insurance company that did not offer PIP or med-pay benefits.

Plaintiff was driving the Vann Trucking truck he usually used when he decided to stop on a service road outside of Philadelphia. He had been traveling to pick up a trailer to hitch to his truck and transport. As the plaintiff was stopped in the truck, a train came and collided with the truck where plaintiff was. As a result of this train-truck accident, plaintiff sustained injuries to his head, neck, shoulders and back.

Because the plaintiff was unable to collect med-pay from the Vann Trucking commercial insurance policy, he decided to enter a claim with the defendant because it was his personal insurance carrier.

The defendant denied plaintiff med-pay benefits because of a provision in the policy called the "regular use" exclusion. Insurance policy exclusions are where insurance companies specify which circumstances would render the insured excluded from obtaining benefits.

A "regular use" exclusion was created by insurance companies to encourage people to purchase insurance for all vehicles they own and operate. These provisions were also created to protect insurance companies from having to pay for injuries sustained when those they insure are driving a vehicle for work and are injured.

The exclusion applicable to this case stipulated that the defendant would pay medical expense benefits where someone they insure suffers bodily injury in an accident with a vehicle they own. The part that excludes benefits states that where an insured is injured while using a vehicle customarily used, the defendant does not have to pay med-pay benefits.

Essentially, an insurance company will extend benefits to you where you are involved in an accident in a car you do not own, only when it is a rare occurrence for you to drive that vehicle.

The court in this case analyzed previous case law that dealt with this type of insurance exclusion provisions. In the past in New Jersey, courts have held that employees who are injured while driving a vehicle owned and insured by their employer, cannot seek med-pay benefits from their private insurance carrier. This is because these cases usually involved the insured customarily driving this work vehicle.

In order to be consistent with previous case law, this court entered summary judgment for the defendant. Plaintiff was unable to collect med-pay benefits as a result of this truck-train accident.

The Role of Sovereign Immunity in North Carolina Premise Liability Cases Discussed in Seabolt v. County of Albemarle

Thu, 10 May 2012 20:33:29 -0500

Immunity is a key concept in many North Carolina premise liability cases that occur on government property.

When you are injured on government property, you may be confused about your legal rights. Our experienced Carolina injury attorneys want to help you get the award you deserve.

In a recent Virginia case, the court delves into questions surrounding sovereign immunity classifications for governments in potential premise liability claims. Seabolt v. County of Albemarle, No. 110733 (Va. Apr. 20, 2012).

Sovereign immunity was created by statute to protect federal, state and local governments from lawsuits which would result in taxpayer money being awarded to victims of government agents' civil wrongs. When someone sues the federal, state or local government, the government can raise the defense of sovereign immunity and the case may be dropped. Where a case is dropped by the court because of sovereign immunity it is because this immunity eliminates the courts subject matter jurisdiction over the cause of action.

This immunity has been limited through the creation of a legislative act referred to as the Federal Tort Claims Act. The purpose of this act is to waive immunity in instances where the claim arose because a government agent or officer acted negligently in the course of their employment causing injury to another person. This act has been adopted by the states in a variety of ways.

In this case, Seabolt (plaintiff) was injured while she was on a playground that belonged to the County of Albemarle (defendant) in Virginia. The previous court hearing this case found that the plaintiff's injuries were the result of a county employee who negligently maintained the premises. Plaintiff looked to Virginia Code §15.2-1809 which dealt with a counties liability where it is operating a recreational facility, park or playground. This statute explicitly states that a county can be held liable for the damages caused because of the gross negligence of a county employee.

The defendant argued that it could not be held liable because of the doctrine of sovereign immunity. Additionally, it stated that the above referenced state statute did not apply to counties because it was only a waiver of liability to cities and towns.

The court in this case looks to two critical legal concepts. First, the court distinguishes the difference between being held liable for an employee's negligence and being held liable for the damages. Secondly, the degree of the employee's negligence is integral to the applicability of the statute. If an employee is grossly negligent, a county can be held liable; however, where an employee is simply negligent a county is not held liable for the damages.

Gross negligence is a type of action or omission on the part of someone who owes a duty of care that amounts to extreme carelessness and/or egregious behavior. Regular negligence is where someone breaches the duty of care but the action or omission is not extreme.

Although every state has different immunity statutes, the court in Seabolt points to the Virginia Tort Claims Act which identifies that the statutory limitations on sovereign immunity are not extended to county governments.

Therefore, any county, city or town in the Commonwealth of Virginia is immune from liability where a person is injured because of the gross negligence of a county, city or town employee acting within the scope of their employment.

Teen Killed in Spartanburg Motorcycle Accident

Mon, 07 May 2012 12:08:46 -0500

An 18-year-old was killed in a recent motorcycle accident in Spartanburg County, reports WYFF.

According to the South Carolina Highway Patrol, the fatal motorcycle accident happened at roughly 11:00 p.m. this last weekend. Officers report that he was wearing his helmet when the accident happened, but that wasn't enough to save him from the impact. No other vehicles were involved in the accident. Officers are still investigating.

Our Spartanburg motorcycle accident attorneys have been talking about Motorcycle Safety Awareness Month. During the entire month of May, safe driving advocates are working to raise awareness about these vulnerable two-wheeled drivers on our roadways.

Now, we're going to discuss the dangers that our young drivers face on our roadways. They actually have the highest risks for accidents. In 2009, there were roughly 3,000 teen drivers on our roadways who were killed in motor vehicle accidents. Nearly 400,000 additional teen drivers were injured during this time. It's important for parents to stay on top of their teen's driving habits to make sure they're safe every time they jump behind the wheel.

Drivers under the age of 18 must complete the following to obtain a full driver's license in North Carolina:

-Complete an approved driver education class. These classes include driver training as well.

-Must have completed the requirements of a learner's permit.

-Must drive with a learner's permit for at least a year.

-Must have completed the requirements for provisional license.

-Must have held a provisional license for at least six months,

-Can apply for a full driver's license when the above steps are completed and the driver has turned 18-years-old.

Many states require these young drivers to complete these steps because restrictions through a graduates driver's licensing (GDL) program help to teach our driver safe habits behind the wheel. The stricter these programs are the better they work. These drivers are exposed to a little bit at a time and can develop their safe driving habits without being overwhelmed.

According to the Governor's Highway Safety Association (GHSA), North Carolina ranked in second place for having the most deaths among 16- and 17-year-old drivers during the first six months of 2011. North Carolina only ranked behind Texas. We saw nearly 20 deaths during that time, according to My FOX 8. Second place in this race is nothing to be proud of!

"North Carolina doesn't even meet the national standards on the amount of time devoted to driver safety, which nationally is 40 hours in the classroom and 10 hours behind the wheel," said Neil Doroshenko of AAA.

Pedestrian Accident in Asheville Seriously Injures Raleigh Man

Sat, 05 May 2012 11:26:11 -0500

A recent pedestrian accident in Asheville left an out-of-town man suffering from some serious, life-threatening injuries. The man, from Raleigh, was walking along Haywood Street right by North French Broad Avenue when he was struck by a passing pickup truck. According to the Citizen-Times, the accident happened just before 3:00 p.m.

After the collision, the visiting man was taken to Mission Hospital and was later admitted into the intensive care unit. No charges have been filed against the driver involved in the accident.

Our Asheville pedestrian accident lawyers understand that these kinds of accidents are much more likely during this time of the year. As we head into the heart of May, the weather is warming up, kids will be let out of school and residents, as well as visitors, will be spending more time outdoors. With all of these factors lining up, risks for pedestrian accidents skyrocket. More and more people will be hitting our roadways for some fun, some exercise and some time spent in the sun. It's what we wait for all year. It's important though, that we make this time of year the safest ever. We need to keep our mind on safety above all else. Walkers, joggers and bikers are urged to be extremely cautious when walking near our roadways and when walking near motor vehicle traffic. One false move can return deadly results.

Luckily, the North Carolina Department of Transportation (NCDOT) is here to offer residents and visitors with some important safety tips for those who choose to walk around the state. Walking is a simple, easy, convenient and cost-effective way to get to many of the local attractions. It helps to keep us in shape, it helps to cut down on traffic congestion and it helps to save some money. Review the following tips and share them with your loved ones to help keep everyone safe this summer.

Pedestrian Safety Tips:

-Try to walk in areas that have sidewalks or separate path that are away from traffic.

-If you can't walk on a sidewalk or a pathway, walk as far from moving vehicles as possible and walk facing oncoming traffic.

-Limit the number of times you cross the road if possible.

-Avoid walking near busy or fast-traveling roadways.

-Always know your surroundings. You're urged to even keep an eye out for drivers in parked cars that may be getting ready to move.

-Obey all traffic signs and signals just as you would if you were in a car.

-Always cross the street using a crosswalk or at an intersection.

-Always look left, right and left again before crossing the street.

-Make eye contact with drivers before attempting to cross the road.

-Always walk, never run, across the street.

-Keep looking for traffic in all directions as you cross the road.

-Wear bright-colored clothing to help make yourself more visible to motorists.

-Avoid walking at night. Bring a flashlight if you must.

North Carolina Nursing Home Neglect: Budget Cuts and Disaster Readiness

Wed, 02 May 2012 11:11:24 -0500

Nursing homes in North Carolina are counted upon to help our elderly loved ones in their time of need. They're here to provide them with love, care and safety. However, budget cuts may impact everything from nursing care to disaster preparedness.

According to government investigators and a recent study, most nursing homes are woefully unprepared for a natural disaster, whether a tornado, flood or hurricane. Our Carolina nursing home neglect attorneys have seen the devastation caused to nursing home communities in the wake of natural disasters like Hurricane Katrina. Nursing homes have a legal responsibility to residents and the families of residents and one of the most important responsibilities is safety.

After a recent study, researchers discovered that nursing homes in the area lacked the steps to help keep residents stay safe in the event of an evacuation, including correspondence with local authorities, ways to get in touch with relatives and effective systems to get medications on board and distributed correctly, according to FOX NEWS.

Our Greensboro nursing home neglect lawyers understand that families put their loved ones in nursing homes with the expectations that they'll be properly cared for. We assume that facilities can handle a natural disaster and can care for residents during these times. The recent report shows we may be wrong. As a matter of fact, the plans of these homes may not even be worth the paper they're written on.

Some are not surprised with the lack of planning among nursing homes in our areas, considering the recent Medicare funding reductions. The state of North Carolina recent lost nearly $23 million in funding, which constitutes as the fifth largest cut nationally.

"North Carolina, like many states, has a very fragile Medicaid system with numerous budgetary challenges," said Alan G. Rosenbloom, President of the Alliance for Quality Nursing Home Care (AQNHC).

Rosenbloom says it's not going to get better anytime soon either. He says that Medicare reductions are expected to hit nearly $50 billion by the fiscal year 2021.

This is alarming considering the recent natural disasters that we've had to react to.

"We identified many of the same gaps in nursing home preparedness and response," said investigators with the Health and Human Services Department.

The study concluded that nursing homes' emergency plans failed to provide relevant information regarding safety procedures, procedures that could potentially save your loved one's life.

Nationwide, nearly 5 million people spent some time in a nursing home in 2009. About 40 percent of these individuals were in the top 10 disaster-prone states. Statistics reveal that the average nursing home resident is a female in her 80s or older and deals with both mental and physical limitations. These residents are completely dependent on the help of other for everyday activities.

Nine Killed in Car Accidents in Rock Hill and Elsewhere over Weekend

Thu, 26 Apr 2012 12:07:04 -0500

Over the weekend, nine people died in traffic-related accidents in Rock Hill and elsewhere throughout South Carolina, according to Herald Online. Included in the fatalities were two teen girls and a man who thought it would be a good idea to drive with a beer between his legs. Car accidents don't pick and choose favorites, everyone's at risk. All travelers are urged to practice safe, alert and cautious driving habits to help to avoid becoming a victim of one of these fatal accidents.

The first of the accidents happened just before 9:00 p.m. on Friday, killing a 41-year-old man from Piedmont and a 14-year-old accident in Anderson County. On Saturday, a man from Dorchester died in Lexington County just before 4:00 a.m.

Our Rock Hill injury attorneys understand that two teen girls, of Beaufort High School, were killed on Saturday night as well. A third girl was injured in the same car accident on St. Helena Island. It all happened when the car that the three of them were in swerved off of Seaside Road, flipped and hit a tree. This accident happened just before 8:00 a.m. This accident is still being investigated and a cause has not been determined, says Lance Cpl. Brent Kelly. Officials determined that all three motorists were wearing a seat belt at the time of the collision, but it wasn't enough to save the two.

Later that night, an accident in McCormick County killed two men from Greenwood.

The next morning, a 46-year-old from Rock Hill died after his vehicle ran off the road, into a road sign and into some trees near the roadway. Law enforcement officials say he veered the car off the right hand side of the road, slammed into multiple objects and was entrapped in his vehicle once it came to a rest. Officials have not determined if weather conditions contributed to this accident.

There were two more fatal accidents reported later on Sunday, one in Dorchester and one in Florence County, one in which an alcohol-impaired driver crossed over the center line of the roadway and head on into an oncoming vehicle. Officials discovered that this driver navigated his way down the roadway with a beer in between his legs and a number of other cold beers in the car.

In 2009, there were nearly 1,000 car accident fatalities reported in South Carolina. Most of these traffic accidents happened in rural areas, which is no surprise considering that there are so many winding roadways within our state. Of these fatalities, less than 20 of them occurred in urban areas.

Of the 2009 traffic accident-related fatalities:

-About 675 were passenger fatalities.

-Less than 250 of these passengers were restrained by the use of a seat belt

-More than 380 passengers were not restrained.

-More than 375 fatalities involved a driver who was under the influence of alcohol.

-Nearly 350 fatalities involved a speeding driver.

Anderson Motorcycle Accident Sends Sergeant and Son to Hospital

Thu, 26 Apr 2012 07:09:23 -0500

Following a recent Anderson County motorcycle accident, a local deputy and his son were sent to the hospital. According to Independent Mail, the sergeant, 39-years-old, and his son, 11-years-old, were riding together on South Carolina 24 just before 10:00 p.m. when a large SUV pulled out right in front of them. Both the sergeant and his son were transported to Greenville Memorial Hospital after slamming into the front passenger side of the SUV. Luckily, both bikers were wearing their helmet when the accident occurred. The driver of the SUV was cited for failing to yield to right of way.

"We're definitely glad that he's OK," said Chad McBride, spokesman for the department. "A lot of motorcycle accidents don't turn out very well."

Our Anderson motorcycle accident attorneys understand that motorcycle accidents are a top concern of officials in the area, especially as the ideal riding weather rolls in. As a matter of fact, the state of South Carolina is pushing the 6th Annual Look Twice Run, organized by the Motorcycle Awareness Alliance. This event will be taking place on the 5th of May. Riders can sign up at the VFW on Highway 28N in Anderson from 10:00 a.m. until 12:00 p.m. This ride is to help to raise awareness about the risks and the dangers that motorcyclists face on our roadways every day. Oftentimes they're overlooked by the drivers of passenger cars and other passenger vehicles.

Besides raising awareness through reach-out events like the 6th Annual Look Twice Run, bikers can exercise a few simple safety tips to help increase their safety on our roadways. The South Carolina Department of Public Safety is here to offer riders with some of these tips.

Motorcycle Safety Tips:

-Be careful when approaching intersections. Look in all directions before proceeding through. About a quarter of all motorcycle accidents are caused by another vehicle turning left across a motorcyclists' path.

-Slow down when riding in areas with obstructed views. Be cautious when riding in areas with large trees, big buildings, roadside vehicles and other objects that may block your line of vision.

-Be cautious of oil slicks, potholes, railroad tracks, puddles, road debris and other roadway hazards that may require sudden lane changes.

-Be cautious when traveling near driveways and parking lots as drivers who are reversing a vehicle may have a difficult time seeing you.

-Always practice defensive driving habits. Avoiding a potentially fatal accident means staying one step ahead of other drivers.

-Signal whenever possible and make your maneuvers in traffic as predictable as possible.

There were more than 120 motorcyclist fatalities in the state of South Carolina in just 2008, according to the National Highway Traffic Safety Administration's Fatality Analysis Reporting System (FARS). Motorcycle accidents oftentimes produce deadly results, because bikers are provided with little to no protection on their two-wheeled vehicles. With cooperation from all motorists we can help to keep all travelers safe and sound on our roadways.

Davis v. Devereux Discusses Vicarious Liability in Carolina Child Injury Cases

Sun, 22 Apr 2012 14:16:00 -0500

When you or someone you love is injured because of the negligence of someone else, who can be held liable?

Our experienced Carolina injury attorneys understand that Carolina personal injury lawsuits can be confusing, and we are here to help you obtain the award you deserve.

Davis v. Devereux Foundation is a recent New Jersey case that deals with the duty owed by caregiver companies to their residents. This case involves a boy named Roland Davis (Davis or plaintiff) who was a resident of Devereux Foundation (defendant or Devereux). Plaintiff had been diagnosed with mental retardation, autism, persuasive development disorder and attention hyperactivity disorder.

Plaintiff had communication problems and relied on a picture system to communicate with others. He also had a pattern of aggressive and combative behavior which required him to need constant supervision. Plaintiff's mother placed him in a non-profit care facility called Devereux Foundation (defendant or Devereux).

Devereux was a care facility that had residents with emotional, educational and developmental disabilities. This facility assigned one residence counselor to every resident to assure that the resident is receiving assistance, supervision and care throughout the day. The residential counselors were responsible for keeping a record of resident's daily schedule and progress throughout the day.

This New Jersey non-profit company valued the care they gave to their residents. They installed a special screening for new resident counselors that included fingerprinting, drug testing, a physical evaluation, and a background check. Devereux also required recommendation letters for the special screening. When the defendant hired Charlene McClain (McClain) they conducted this thorough screening and found nothing that would give them a warning that McClain could injure a resident.

Devereux assigned McClain to care for plaintiff. Plaintiff did have a reputation for kicking, screaming, stomping, spitting, and initiating physical interactions with the staff. Plaintiff had attacked McClain two times. On the day after the second attack, McClain arrived at work and warmed up a glass of water in the microwave. She went into the room where the plaintiff was getting out of bed, and she threw the water onto the plaintiff's lap. In order to see if she had burned the plaintiff, McClain told plaintiff to get into the shower. Upon seeing the extensive burns on the plaintiff's lap, legs, groin and pelvis; McClain called in another residence counselor to help her determine what to do.

Plaintiff was sent to the hospital and he spent six days admitted for treatment. He suffered from serious burns and was left with permanent scares. Plaintiff's mother investigated as to the cause of these injuries, and subsequently sued McClain and Devereux.

McClain confessed to intentionally scalding the plaintiff. She said that she got the glass of boiling water to protect herself in the event that the plaintiff tried to attack her. McClain admitted that plaintiff did not attack her on that day and that she threw the boiling water on the plaintiff because she was angry about their prior altercations. McClain pled guilty to aggravated assault and was sentenced to three years in prison.

The problem in this case arose because plaintiff also sued Devereux. Plaintiff argued that because the facility stood "in loco parentis," they were responsible for a higher duty of care. Where a child or elderly person is being primarily cared for by a facility, the facility assumes liability for the care and treatment of the resident or patient. Plaintiff argued that a non-delegable duty should be imposed.

The court found that the defendant can be liable for the intentional acts of McClain, but the court held that because McClain's acts were not to further the defendant's business, the heightened liability standard could not be imposed.

Child Injury in Greenville: Whose Fault?

Fri, 20 Apr 2012 09:05:36 -0500

As we recently reported on our North Carolina Personal Injury Lawyers Blog, child car seats are a hot topic of debate for safety advocates nationwide. They've been dinged for poor safety ratings, recalls, design and usability.

It's commonly suggested that parents look into safety ratings and seat recommendations when buckling in small children. Some parents and guardians are saying that these car seats are too complicated though, and as a result are being installed incorrectly a majority of the time, according to The Wall Street Journal.

According to recent studies, many parents and caregivers are making mistakes when installing the devices, increasing the risks of injury for small children in the event of a car accident in Greenville and elsewhere.

Our Greenville car accident attorneys understand that most child car seats use the LATCH, Lower Anchors and Tethers for Children, system. This system is supposed to make installing these car seats relatively simple by using standard hardware, but recent research is proving otherwise. Researchers with the University of Michigan Transportation Research Institute (UMTRI) and the Insurance Institute for Highway Safety (IIHS) say that automakers aren't doing their job when it comes to making these car seats easier to use.

The recent study looked at more than 20 of the 100 top selling passenger vehicles from the 2010 and the 2011 model year. The latch setups on these vehicles were tested after a number of groups raised concerns about the lack of user-friendliness of some of these latch systems. They're just alarmingly difficult to buckle in, when buckles are even provided.

"Sometimes parents blame themselves when they struggle with latch, but oftentimes the problem lies with the vehicle, not the user," said the IISH senior vice president, Anne McCartt.

According to the study's results, anchors for these seats were only found in about 35 of the near 100 study vehicles. Only 7 of the near 100 have specific LATCH anchors in the middle of the second row of seats. That's where children are safest when riding in a motor vehicle and are best protected in the event of an accident. Less than 10 vehicles allowed the borrowing of anchors from neighboring seats. More than 80 of the vehicles had no anchors at all. Of the more than 20 SUVs and minivans with three rows of seating, about 10 of them had no lower anchors at all!

During the study, researchers also concluded that parents used these anchors correctly only 60 percent of the time. Tethers were used in less than 50 percent of the installations and were only used correctly about 54 percent of the time. In conclusion, researchers determined that guardians, caregivers and parents were only installing these seats correctly, with the proper angle, less than 15 percent of the time.

Lake Fontana and Lake Hiwassee Boating Accidents Kill Two

Tue, 17 Apr 2012 12:37:46 -0500

There were two unfortunate and deadly boating accidents in Western North Carolina that act as a tragic reminder of the beginning of boating season and the importance of boating safety!

According to the Citizen-Times, boating experts would like to take this time to remind all boaters to wear a life vest during every trip on the water. One simple safety precaution can help to save your life and the lives of your passengers in the event of a boating accident. Be prepared, have a plan and keep life jackets around.

The boating accident on Lake Hiwassee happened when the boat capsized. There were only two people on the boat when it flipped. The boat didn't sink, but when one of the boaters tried to swim to shore, she failed. The other boating accident happened on Fontana Lake. That boat capsized as well. Two of the boaters were able to be rescued. One wasn't so lucky.

According to a spokesman for the N.C. Wildlife Resources Commission's law enforcement division, Geoff Cantrell, neither of the boaters who drowned in the accidents was wearing a life jacket when the boats capsized.

Our North Carolina boating accident lawyers understand that safety should be everyone's first priority on the water this season! Swimming ashore from a capsized boat is a lot tougher than you think.

"Accidents happen quickly on the water, and having a life jacket on can save valuable time," said Cantrell.

Across the state, there are roughly 20 fatal downing accidents that happen every year. Most of these accidents involve drownings.

According to national statistics, nearly 80 percent of all fatal boating accidents involve drowning boaters. Of these drownings, nearly 90 percent were not wearing life vests.

It's not just boaters that need to wear their life jacket either. It's also the kayak and canoe riders that need to wear a life jacket, too. Sounds silly, but jackets can save lives, regardless of vessel.

It's like going out without a helmet. If you're riding a bicycle or a motorcycle on our roadways, your risks for brain injury in the event of an accident skyrocket if you're not wearing a helmet. It's the same thing on the water, except with a life jacket. Any boating expert will tell you, it doesn't matter how good of a swimmer you are, everyone needs a life jacket.

According to state law, both teens and adults are required to have life jackets readily accessible for each passenger on a boat. That includes kayaks, canoes and motorboats. Boaters who are under the age of 13 are required to wear a vest at all times. Someone operating a personal watercraft, regardless of how old, is required to wear a life jacket at all times.

Child Injury in Asheville and Elsewhere Likely with High Temps

Tue, 17 Apr 2012 12:04:52 -0500

Warm temperatures are creeping in and so are the risks associated with heat and child injuries in Asheville and elsewhere. For this reason, the National Highway Traffic Safety Administration (NHTSA) recently launched a brand new campaign to help parents, babysitters, guardians and daycares to keep kids safe when traveling in motor vehicles.

It's aiming to keep kids out of hot cars and to help prevent hyperthermia or heatstroke-related injuries. The new campaign, "Where's baby? Look before you lock" is a beneficial reminder to parents and caregivers nationwide to thoroughly check the car before getting out and hitting the lock.

Our Asheville injury attorneys understand that the latest weather report indicates we're going to see temps in the 70s for a little while longer. You may not think that's too hot, but you'd sure change your mind if you were locked inside a parked car.

Just last year, there were nearly 35 kids under the age of 14 who died because they were left inside a vehicle by a parent, guardian or caregiver. These tragedies can be prevented with just a few extra seconds to check the car before getting out every time.

"Everything we know about this terrible danger - and the majority of these cases are accidental tragedies that can strike even the most loving and conscientious parents," said David Strickland, the Administrator for the NHTSA.

Throughout the next few weeks, safety officials with the NHTSA will be launching a number of online ads featuring the campaign's slogan, "Where's baby? Look before you lock."

After the campaign, officials will be looking into the effectiveness of aftermarket products that were designed to help children from being unintentionally left in a parked car. The findings will be released later this summer.

Heatstroke and hyperthermia can have some lasting effects on victims. Some of these injuries include irreversible brain damage, loss of eyesight, loss of hearing and even death.

To avoid one of these potentially fatal accidents, parents and caregivers are urged to:

-Don't let your child sit alone in a car -- ever -- not even if you'll only be away for a minute. It doesn't even matter if the air conditioning is on full blast and the windows are rolled down. It's all dangerous!

-Before you get out of your car every time, be sure to look in all seats, front and back, before locking the vehicle and walking away.

-Talk with your child's daycare center or childcare provider and ask them to get a hold of you if your child doesn't show up when they're expected to.

-Do things in your car to remind yourself to look around before getting out. It's a simple idea to keep a purse, a phone, a briefcase or another important item in the back seat so that you have to turn around and look back there before you can leave and lock.

-Never let children play around cars.

-Keep your household's car keys out of sight and out of reach of children.

North Carolina Personal Injury and Proof of "Allowable Expenses" and No-Fault Benefits

Sun, 15 Apr 2012 15:36:41 -0500

Justice is based on proof. If you have been involved in a car accident in North Carolina, having records of your medical treatment and the costs is critical.

In addition to proper medical records, having an experienced North Carolina injury attorney can be the difference between winning and losing your case.

Armisted v. State Farm is a case involving six plaintiffs (plaintiffs) who suffered from serious injuries which were the result of their respective automobile accidents. Plaintiffs suffered catastrophic traumatic brain injuries and sought payment from their no-fault insurance company for the cost of having a home attendant care service. Initially, State Farm Mutual Automobile Insurance Company (State Farm) paid the plaintiff benefits at the rate the plaintiffs requested. There was a settlement agreement where State Farm agreed to pay each plaintiff the original amount for a definite period of time. However, after the time stipulated in the settlement agreement, and after conducting market survey research on cost of home attendant care service, State Farm reduced the benefit rates to the rates consistent with the market survey.

Plaintiff's sued State Farm to make it pay benefits consistent with the original rate of benefits. State Farm argued that because plaintiffs refused to submit documentation proving the nature and extent of their expenditures, State Farm was not justified in paying the higher benefits. The reason why it was so critical for State Farm to have this information was that it needed to establish the exact type of injuries, the home care that was necessary, and how much that care would cost.

The cost of benefits paid by insurance companies to injured policyholders must be reasonable and consistent with the nature and extent of the care provided. State Farm acknowledges that the amount it was paying in benefits decreased substantially but it would be willing to pay additional hourly benefits if it received documentation demonstrating that this increase in benefit costs was justifiable.

Plaintiff's countered, that because of the advice of counsel they were not to provide these documents to State Farm.

The jury found on behalf of State Farm because the plaintiffs failed to prove that the expenses of around the clock care were necessary and allowable.

The following law was used to analyze the facts of the case. The court stresses that the plaintiff has the burden of proving their entitlement to no-fault benefits. The court looks to the definition of "allowable expenses" and the three requirements in order to find healthcare allowable. Plaintiff must prove that the charge for the service was reasonable, the service and expenses were reasonably necessary, and that the expense was actually incurred. Payable insurance benefits in accidental bodily injury cases accrue when the treatment is received not when the injury occurred.

State Farm stressed that in our current times, payment for services is contingent on a documentation of the services rendered. The jury is responsible for making the decision of whether the plaintiff's expenses were allowable and covered by no-fault statutes. Because there was no evidence provided by the plaintiffs, the jury relied on this failure of documentation.

Although the plaintiff's alleged that State Farm was misstating the law surrounding documentation, the court found that the plaintiffs failed to satisfy their burden of proof and a judgment for State Farm was warranted.