North Carolina Injury Lawyer Blog

January 24, 2017

When Do Medical Malpractice Requirements Apply to Falls in North Carolina?

In Livingston Gause v. New Hanover, a North Carolina appellate court considered whether a patient’s fall during an X-ray brought his injury claim under medical malpractice laws. The case arose when a daughter drove her mom to the ER because she had chest pains related to a fall. The mother was 73 and had a history of falls.

At the ER, a nurse evaluated the mother’s complaint and determined which priority she should be. She asked for an x-ray chest PA or AP. The PA chest x-ray required a patient to stand, while the AP could be taken with the patient lying down or sitting or standing. However, the PA provided more information about the patient, permitting a more accurate diagnosis.

After several minutes, the mother was taken to a restricted area within the ER and evaluated by a different nurse. The x-ray technician met the mother and her daughter in the hall and took her in a wheelchair to radiology. The daughter stayed in the hall. The tech explained what was going to happen to the mother, asking her if she could stand, and the mother answered that she thought she could stand. The mother then stood up without help. However, the tech spoke to a doctor later in the day and told the doctor that she stood the patient up.

January 17, 2017

Intersection Collision Case in North Carolina

by Maurer Law

In Daisy v. Yost, the plaintiff and the defendant got into a car crash in North Carolina. At trial, the evidence showed that the plaintiff came up to an intersection at the posted speed limit. He was planning to drive straight. The defendant came to the intersection from the opposite direction, planning to turn left across the plaintiff’s path.

When the plaintiff came to the intersection, the light had changed to yellow. The defendant’s light was changing from a flashing yellow arrow to a solid yellow arrow, and she was in the left turn lane. The plaintiff kept driving straight through the intersection, just as the defendant turned left. The defendant’s car hit the side of the plaintiff’s car so that the plaintiff’s car was pushed into a light post.

The plaintiff sued for his injuries and property damage and asked for a directed verdict on the issue of contributory negligence. His motion was denied, and the case was sent to a jury. The jury found that the defendant’s negligence was the legal cause of the crash, but the plaintiff bore some contributory negligence. Accordingly, the lower court entered judgment for the defendant. The plaintiff moved for judgment notwithstanding the verdict and a new trial, but these motions were denied. He appealed.

January 10, 2017

Trip and Fall in a North Carolina Store

by Maurer Law

In Utley v. Smith, a North Carolina appellate court considered a trip and fall case. The case arose in 2012 when the plaintiff was shopping for plants in the defendant’s store. He asked a clerk where he could find particular plants and was told he could find them outside. On his way toward the plants, he tripped over a stack of tomato crates and hurt his shoulder and hip.

He sued the defendant in 2014, claiming negligence and loss of consortium. The defendant filed a motion for summary judgment, which was granted. The plaintiff appealed. He argued that there was a genuine factual issue about whether the condition that caused him to trip and fall was open and obvious. He argued that the tomato crates were not open and obvious, and the defendant was negligent.

The appellate court disagreed. It explained that a trip and fall plaintiff needs to prove that the defendant failed to use proper care in performing a legal duty owed to the plaintiff and that this breach of duty was the legal cause of the plaintiff’s injuries. In North Carolina, property owners owe a duty of reasonable care to all lawful visitors. Business owners are expected to keep the parts of the property that they reasonably expect will be used by customers in a reasonably safe condition during business hours. They are supposed to provide warnings of hidden dangers or unsafe conditions that can’t be seen through a customer’s reasonable observation. However, an owner need not warn customers of obvious dangers of which customers have equal or better knowledge.

January 3, 2017

Underinsured Motorist Coverage in a North Carolina Motorcycle Accident

by Maurer Law

How an underinsured motorist policy provision is interpreted can make a big difference to how much compensation is recovered in an accident in which a North Carolina driver’s insurance doesn’t cover all of an accident victim’s damages. In the unpublished opinion of Integon National Insurance Company v. King, a North Carolina Court of Appeals considered underinsured insurance coverage for a motorcycle accident case. The insurance company asked the court to declare it had no duty or obligation to two deceased people’s estates beyond its underinsured motorist limits of $100,000, minus what these claimants received from the at-fault driver and her insurer.

The accident arose when an insured motorcyclist (King) drove his Harley-Davidson motorcycle with a passenger (Turner). A driver (Skipper) with three passengers lost control of her car and hit the motorcycle, killing the motorcyclist and passenger. When the accident happened, the insurance company insured the car through an automobile liability insurance policy with limits of $30,000 per person and $60,000 per accident. The insurer distributed the $60,000 among the three passengers in the car as well as the estates of the decedents, King and Turner. This exhausted coverage.

The insurance company also insured King through a motorcycle insurance policy that included underinsured motorist coverage with maximum limits for bodily injury of $100,000 per person and $300,000 per accident. Under the policy, the insurer paid the King and Turner estates $82,072 in underinsured motorist benefits. Each estate got $100,000 for the Skipper and King policies, based on the per person limit.

December 20, 2016

Dram Shop Liability in North Carolina Personal Injury Lawsuits

by Maurer Law

In Davis v. Hulsing Enterprises, the plaintiff appealed from the dismissal of his dram shop and punitive damages claims against the defendants. The case arose when a woman and her husband celebrated their wedding anniversary at a resort. They had dinner at a resort restaurant and drank 24 alcoholic liquor drinks.

The husband drank at least 10 of these drinks, and the wife drank enough to noticeably impair her abilities. The wife’s intoxication would have been visibly apparent to a reasonable employee, agent, or ABC permittee. She was unable to walk with her husband from the restaurant to their hotel room. While they tried to walk to the room, she fell and couldn’t get up, so the defendants put her in a wheelchair and took her to her room. They left the plaintiff and his wife in the hotel room without medical attention, and in the morning when he woke up, the plaintiff found his wife dead on the floor.

Under N.C. Gen. Stat. § 18B-305, it is illegal for an ABC permittee to knowingly provide alcoholic drinks to someone who is intoxicated. The defendants and their employees were ABC permittees.

December 13, 2016

Injuries Suffered on Government Property in North Carolina

by Maurer Law

In some cases, a slip and fall or another accident takes place on government property, such as a school or a public park. Although private landowners are usually required to keep their property reasonably free of dangers for lawful visitors or else provide warnings, different rules apply when the property owner is a local or state government entity. The doctrine of sovereign immunity shields governmental entities from being sued for their negligence, even if they are clearly at fault, except when the entity has waived its immunity from suit.

The North Carolina Tort Claims Act provides the exceptions to sovereign immunity from tort claims. It allows recovery for injuries caused by the negligence of state officers, employees, or agents who are acting within the scope of their duties in situations that would make the state liable if it were a private individual. However, the Tort Claims Act doesn’t waive immunity for a state employee’s intentional misconduct. Moreover, as with lawsuits against private individuals, a plaintiff’s contributory negligence completely bars his ability to recover damages.

Governmental immunity shields local governments, such as cities, from injuries caused by employees in the scope of their duties when they are performing “governmental functions.” However, it doesn’t protect local governments from tort claims based on an employee’s performance of proprietary functions. Factors that may show whether a governmental actor was acting in the scope of proprietary or governmental powers include whether the activity was one typically provided by a particular entity, if the actions were ones in which only a governmental entity could engage, whether a substantial fee had been charged, and whether a profit had been turned.

December 6, 2016

Car Accidents Caused by Underinsured Motorists in North Carolina

by Maurer Law

Insurance issues can come up in car accident cases in North Carolina. If your car is hit by someone who is underinsured or uninsured, or a hit and run driver, you may have to turn to your own uninsured motorist coverage. However, this means that you may have an adversarial relationship with your own insurance company.

In Bacon v. Universal Insurance Company, a North Carolina appellate court considered whether a driver’s insurance policy provided him with underinsured motorist coverage. The case arose when the insurer issued an auto insurance policy to the plaintiff, expressly providing liability coverage, as well as medical and uninsured motorist coverage from 2010-2011. The policy included an uninsured motorist coverage endorsement.

In 2011, during the policy period, the plaintiff was seriously hurt in a car accident in which the other driver was found at fault. The other driver’s insurance carrier paid the plaintiff $50,000, which was the full liability coverage available for the claim. After that, the plaintiff submitted an underinsured motorist claim to his own insurer on the ground that the other driver’s insurance was an underinsured motor vehicle under the policy terms. His insurer denied his underinsured motorist claim.

November 29, 2016

Liability of a Police Officer in a North Carolina Car Accident Lawsuit

by Maurer Law

Recently, in Allmond v. Goodnight, a North Carolina appellate court considered a tragic car accident case involving a public official. The case arose when a highway patrolman was speeding through an intersection and crashed into a car driven by Sandra Allmond, who died at the scene. A child traveling with her suffered severe injuries.

The administrator of the estate, who was also the guardian ad litem for the child, sued the officer both individually and in his official capacity as a patrolman to recover compensatory and punitive damages. He also filed claims against the North Carolina Industrial Commission under the Tort Claims Act, and the cases were consolidated.

The officer moved to dismiss on the ground of public official immunity. This motion was denied, and the officer appealed. On appeal, he argued that the doctrine of public official immunity applied because he was chasing a speeding vehicle when he crashed into the decedent. In an unpublished opinion, the court held that the officer would be immune from liability if he were chasing a speeding car when he crashed into the decedent’s car. It ruled that if the jury determined the officer wasn’t chasing a speeding motorist, the jury would have to decide whether the plaintiffs were entitled to recover their damages.

November 22, 2016

Liability of a North Carolina Church to Its Members for a Fall

by Maurer Law

In Thompson v. Evergreen Baptist Church, a North Carolina appellate court considered a premises liability case involving a church. The case arose when the plaintiff, a member of a Baptist church for 34 years whose family were also lifelong members, suffered a fall at the church. Her husband was the chairman of the building and grounds committee, as well as the chairman of the deacons of the defendant. The committee was responsible for installing rails at the doors and steps.

In 2012, the plaintiff was at church in the choir loft. While walking down the stairs after a service, she fell and suffered injuries. She sued the church, claiming that the injury was the direct and legal result of the defendant’s negligence and seeking damages. She argued that there weren’t any rails on the steps where she fell, although her husband had acknowledged there were plans to put them up on the steps before his wife fell.

The church answered, arguing that it was not negligent and that the condition of the stairs was open and obvious. It also argued that the plaintiff had contributed to her own fall and that there was an alternative, safer way down to the first floor. The defendant filed a motion to dismiss and a motion for summary judgment. The trial court granted summary judgment.

November 15, 2016

Vicarious Liability in a North Carolina Trucking Accident

by Maurer Law

In North Carolina truck accident cases, a plaintiff may be able to hold the driver directly liable, and they may also have a claim for vicarious liability, which is an indirect form of liability, against the driver’s employer. However, vicarious liability is derivative, which means that the plaintiff can only recover damages from the employer if the employee driver is found negligent.

Harris Boling v. Greer is a North Carolina case that arose when the defendant was driving a tractor-trailer owned by his employer and crashed into the plaintiff’s truck on Interstate 40. The defendant died as a result of his injuries. However, three years afterward, the plaintiff sued him and his employer on the grounds that the decedent was negligent, that the plaintiff had suffered a head injury as a result, and that the decedent’s negligence was imputed to his employer.

The plaintiff served a summons and complaint addressed to the defendant, which reached his widow. It also served the employer by certified mail. The defendants filed a motion for summary judgment, to which they attached the DMV’s report of the accident and paperwork showing the decedent’s date of death. They also attached the widow’s affidavit, explaining that her husband had died as a result of the crash and that she was the administrator of his estate.