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General Negligence

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Case Type:  85 year old patient run over by personal vehicle operated by corporate companion care provider-severe pelvic fractures

Lawsuit Filed:  Yes – Buncombe County

Liability Issues: Defendant alleged that Plaintiff had signed a full release of any and all claims arising from the use and operation of any vehicle by its employee pursuant to engaging its companion care and transportation services. The Plaintiff challenged such purported release as being void and unenforceable based on North Carolina public policy as applied by the appellate courts. After Plaintiff filed a motion to dismiss such defense regarding the purported release, in conjunction with filing a comprehensive legal brief in support of Plaintiff’s argument, the Defendant agreed to dismiss the defense.

Defendant further alleged that it was not negligent because its employee had used reasonable care in operating the Plaintiff’s vehicle and that the Plaintiff otherwise was contributorily negligent.

Damages Issues:  Plaintiff required trauma hospitalization and an extended stay at a rehabilitation hospital and incurred medical expenses of approximately $50,000.00. However, he further alleged that due to his traumatic injuries his need for additional home companion care services increased causing him to incur additional, unexpected expenses. The Defendant alleged that such services otherwise had been expected prior to the Plaintiff’s traumatic injuries.

Summary: An employee of the corporate Defendant presented to the Plaintiff’s residence at an Asheville apartment complex to provide companion and transportation services. The Plaintiff and the employee, along with the Plaintiff’s wife, walked from the Plaintiff’s apartment unit to the adjacent parking lot in order that the employee could transport the Plaintiff and his wife on personal errands via the employee’s use of the Plaintiff’s car. According to the Plaintiff, the employee stated she could not get the car to go in reverse, so he agreed to get out of the car and see if he could help. According to the Plaintiff, he walked around the car as the employee exited the driver’s seat, and immediately saw that the parking brake was engaged. He contends he reached into the car, pulled the brake lever, and, suddenly without any warning, the car began to move backwards, knocking him to the pavement as the front left wheel rolled over his torso and pelvic region.

The Plaintiff alleged that the employee had exited the car with the gearshift in the reverse position without his knowledge. The employee alleged that the Plaintiff actually entered the car, sat in the driver’s seat, released the brake, and then tried to exit after the car began moving backwards, thereby contributing to the cause of his injuries. Plaintiff disputed the employee’s version of the events. Plaintiff counsel argued that the employee was negligent not only by leaving the vehicle running with the transmission in reverse, but ultimately failing to instruct the Plaintiff not to exit the car under such circumstances of which only she was aware.

Resolution Date: January 2017

 


 

Confidential settlement of negligence claims against the Boy Scouts of America, Daniel Boone Council, and Troop 605 in Western North Carolina pursuant to allegations of preventable sexual abuse of a 13 year old Scout by a 15 year old Scout during a summer camp – January 2015

The guardian ad litem and parents of a 13 year old former Scout alleged in their lawsuit that the younger Scout had been sexually exploited and assaulted by an older Scout at a summer camp organized by the regional troop. The plaintiffs alleged that the defendants had reasonable notice of purported, relevant prior behaviors by the older Scout which made the assault reasonably foreseeable, but that each failed to take reasonable and necessary measures to prevent the traumatic incident, which should have included heightened supervision if not prior refusal or revocation of the older Scout’s membership.

The defendants denied any negligence and specifically alleged that the minor Scouts had actually engaged in consensual and secretive sexual behaviors which were neither foreseeable to nor reasonably preventable by the Troop’s adult leadership, and that all reasonable and necessary supervision and safety measures had been installed.

The Boy Scouts of America specifically denied that it exercised any control over the specific, if any, Troop scouting activities and, thus, alleged it was not imposed with any direct duties to protect the minor Scout from the alleged activities. Furthermore, theBoy Scouts of America alleged that it did not have any relevant knowledge of behaviors, circumstances, or events which potentially could have imposed upon them any such duties. The Daniel Boone Council similarly denied that it exercised any control over the Troop activities or had any notice of behaviors or incidents which would otherwise impose a direct duty upon them for the safety of the minor Scout or any other Scouts from such alleged sexual abuse. The Troop 605 leadership denied any and all negligence and specifically asserted that the preponderance of the evidence was that the minors engaged in consensual sex that violated Scouting rules and principles but which Troop leadership could not reasonably foresee and prevent under the specific circumstances.

Court motion by the Boy Scouts of America and the Daniel Boone Council to be dismissed from the lawsuit was denied by the Court, and the case settled immediately prior to pre-trial motions and jury selection.

Medical experts for the plaintiffs, including the young boy’s treating psychiatrist, testified at their depositions that the minor suffered from post-traumatic stress disorder (PTSD) as a direct result of the purported sexual exploitation and assault, and that he would likely require therapeutic counseling and other psychological/psychiatric care over his lifetime posing significant expenses.

 


 

Case Type: General Negligence – Paramedic sustains Shoulder (rotator cuff) Injury – Loss of Backboard Control with Pregnant Patient – Third-Party Claims against EMS Agencies

Lawsuit Filed: Yes (Haywood County)

Summary: Paramedic with a Count EMS squad was attempting to remove an injured, pregnant patient from an ambulance upon a backboard, with the assistance of several EMTs from three separate EMS agencies. While attempting the patient transfer, the backboard abruptly tilted posing the patient to the risk of falling. In response, the Paramedic use extraordinary physical efforts to maintain patient safety, while sustaining a severe rotator cuff tear in his shoulder, due to his arm being extended abnormally and having to support excessive weight.

Liability Issues: The Plaintiff forecast evidence that two assisting EMTs had engaged essentially in horseplay which led to patient safety being compromised. The Defendant agencies denied responsibility while essentially alleging that their respective EMT was not the aggressor in the alleged horseplay

Damages Issues: Although Plaintiff Paramedic returned to work within his EMS agency employer, he alleged a partial loss of earning capacity due to his shoulder injuries, which was contested by the defendants. Furthermore, he alleged that his injuries caused a loss of enjoyment in his personal life.

Resolution Date: 2013. The parties entered into a confidential settlement at mediation pursuant to a collateral resolution of the workers’ compensation subrogation lien.

 


 

Case Type :   General Negligence / Motorcycle Accident/Personal Injuries:   Building Supply Company Spills Concrete Mix on Highway

Lawsuit Filed: Yes (Jackson County, NC)

Summary:   Motorcyclist and passenger spouse lost control of cycle due to debris left in highway from a truck spill during the transport of concrete mortar mix.

Liability Issues :   Defendant building supply company out of Georgia denied residual debris constituted a highway hazard after its alleged reasonable clean-up attempts, and also alleged that the cyclist failed to use reasonable care to avoid encountering the alleged hazard.   Defendant public transportation agency denied that it had any responsibility based on legal immunities but further alleged that it found no hazardous condition upon inspection.

Damages Issues : The motorcyclist   sustained a necessitated leg amputation due to severe, life-threatening trauma, in addition to other significant injuries.   The passenger spouse suffered a permanent ankle injury and minor neck injury.

Defense Counsel Representation: Yes

Recovery Date :   2008/2009.   Due to insufficient insurance coverage, the corporate defendant made direct contribution.

Co-Counsel:   Wyatt Stevens, Esq., Roberts & Stevens, P.A. (Asheville, NC)

 


 

Case Type : General Negligence/ Personal Injuries/ Plant Explosion: Worker Severely Burned when Negligently Serviced Fire Extinguisher Fails to Operate

Lawsuit Filed: Yes (Buncombe County, NC)

Summary :   Defective Fire Extinguisher: Plant workers were severely burned resulting in the death of one worker when an alcohol container exploded due to ignition by residual flames.   The workers were using the alcohol to burn through a plastic film separating plate glass after such was scored by knife.   After the workers skin and clothing were ignited, they ran towards a supervisor who attempted to extinguish the flames with a plant fire extinguisher, but the extinguisher failed to discharge mechanically.   Plaintiffs alleged that such extinguisher failure resulted in the otherwise preventable death of one worker and the excessive burns to the other.

Liability Issues: Contested:   Plaintiffs’ expert declared that the extinguisher malfunctioned due to a “conical spring” being inserted “upside down” during prior servicing.   Defendant servicing company primarily alleged any such failure, which it denied, did not contribute to the explosion incident and ultimately would not have affected the unfortunate event.

Damages Issues :   The deceased worker was survived by his wife and four adult children, and lived a short period while suffering from severe burn injuries to which he succumbed.   The surviving worker has diligently fought to regain back his life, through extensive medical procedures to treat burns to over half his body, and going back to school for a college degree. Total past and estimated future medical treatment expense likely will exceed $2,000,000.00.

Defense Counsel Representation: Yes

Recovery Date :   2008.   The parties resolved the claims prior to trial.

Co-Counsel:   Fred D. Smith Jr, Esq. (Martinsville, VA) and Brian Peterson, Esq. (Asheville, NC)

 


 

Case Type :   General Negligence /Truck Accident/Personal Injuries:   Equipment transport truck strikes low-lying telephone cable causing driver significant back injury

Lawsuit Filed: Yes (Madison County, removed to Western District-U.S. Federal Court)

Summary:   Worker transporting front-end loader on flat-bed struck power (phone) line across highway, which jerked truck to an abrupt halt.

Liability Issues :   Defendant cell phone provider generally denied liability and asserted that driver failed to keep a proper lookout.

Damages Issues :   Truck driver had pre-existing, congenital lumbar spine condition which made him more susceptible to spinal injuries but which had not caused any appreciable symptoms prior to the subject collision trauma.   After the collision, plaintiff required a lumbar spine metal-rod fixation surgery which his surgeon stated was causally related to the collision trauma.

Defense Counsel Representation: Yes

Recovery Date :   2008

 

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