Case Type: Cargo Truck Collision – Spinal Injuries
Lawsuit Filed: Yes – Buncombe County Superior Court
Liability Issues: Sudden emergency defense and injury proximate cause
Damages Issues: Nature and extent of injuries
Summary: Defendants (a nationwide cargo delivery company, independent contractor truck owner, and truck driver) alleged that truck driver faced an unexpected sudden emergency when the truck braking system failed to function, causing the rear-end collision into the Plaintiff’s passenger vehicle which was stopped at an signaled intersection waiting to make a left-hand turn. Pursuant to plaintiff counsel investigation, Plaintiff alleged that the truck driver and owner had prior notice that the braking system had been malfunctioning immediately prior to the collision, but that reasonable care was not used to ensure repair of the braking system before the truck was operated. Consequently, based on applicable law, Plaintiff alleged that the truck driver would not have a valid defense if the purported sudden emergency was created by the Defendants’ negligence or otherwise preventable.
The Plaintiff had a history of low-back pain (lumbago) which was aggravated by periodic, strenuous activities. In that vein, the Defendants alleged that not all of the Plaintiff’s purported injuries were causally related to the collision events but were due to pre-existing conditions that caused prior symptoms. However, Plaintiff alleged that she sustained significant spinal trauma in the collision to her soft-tissues and vertebral joints, aggravating such pre-existing conditions but causing resultant chronic pain which necessitated implantation of a spinal cord stimulator.
In response to the subject issues, Plaintiff counsel provided the Plaintiff’s complete medical history and evidence regarding the nature and extent of the collision to her treating pain management physician, who consequently provided expert opinions that supported a causal relationship between her chronic pain and the collision trauma.
Plaintiff did not sustain any significant wage loss since her retirement essentially coincided with the collision. However, her chronic pain has affected her ability to fully engage in activities of daily living and especially her retirement travel plans.
Resolution Date: August 2016. The claims resolved after initial formal discovery had been completed, which provided the Defendants all relevant and material information within the Plaintiff’s possession regarding the key case issues.
Case Type: Motorcycle Collision – Passenger thrown from cycle – Spinal fractures
Lawsuit Filed: No
Summary: Female claimant was a passenger on motorcycle that was caused to veer into the highway median and strike a drainage grate, throwing the operator and claimant off the cycle, when the driver of another vehicle entered the highway unexpectedly at an intersection. Claimant landed on her back in the grassy median and sustained burst fractures of two thoracic vertebrae ( T3 and T4) in addition to other moderate and mild traumas. A burst fracture involves a vertebra essentially breaking from high-energy axial forces (top to bottom/bottom to top), with or without vertebral shards penetrating surrounding tissues and, in the most severe circumstances, the spinal canal. Accordingly, the severity of the burst fracture is categorized by four factors: (1) the amount of vertebral deformity; (2) degree of canal compromise; (3) the relative loss of vertebral body height; and (4) the degree of neurologic deficit, if any. Furthermore, a burst fracture generally is considered more severe and concerning than a compression fracture because the former tends to involve neurologic deficits more frequently than the latter. The trauma team focus is on spinal stability, coupled with seeking evidence of neurologic deficits, if any. Surgical intervention is required when the burst fracture is unstable, normally resulting in actual or imminent neurologic deficits. However, non-surgical management is possible absent such deficits and anticipated stability. Normally, such management is applied via a Thoracic Lumbar Sacral Orthosis (TLSO), which often is a custom-molded brace. Protocol typically requires follow-up imaging studies every two weeks to determine whether or not the spine will remain stable. Accordingly, the TLSO usually is worn for two to three months, 24/7.
The Claimant’s imaging studies found: There is compression of the inferior T3 and T4 endplates. There is anterior wedging. There is approximately 40% loss of anterior vertebral body height at T3 and 25% loss at T4. Patient [with] minimal retropulsion of the inferior endplate of T4. Paravertebral soft tissue swelling at T3 and T4 present. The radiologist’s impression was that the Claimant had sustained an acute fracture of the anterior and middle columns of T3 and T4 vertebral bodies with no significant traumatic spinal canal stenosis.
Liability Issues: No
Resolution Date: 2015 – The Claimant benefitted from her youth, and her prognosis was deemed to be fairly good, in particular since she did not have evidence of any neurological deficits.
Case Type: Motor-vehicle Collision – Impaired Driver – Head-on impact
Lawsuit Filed: Yes (Buncombe County)
Summary: On the evening of the collision, the Plaintiff had left work from a local hospital and was travelling Hendersonville Road (US 25) towards her home with the intention of stopping at the Wal-Mart in the Forest Ridge shopping center for a few items. The entrance to the shopping center is located at the intersection of US 25 and Lambeth Rd., the latter being the access to Deerfield Retirement Community to the west and the access to the shopping center off US 25 to the east. The Plaintiff was stopped in the left hand turning lane for the red light at the intersection traffic signal in order to turn into the shopping center entrance. As she was waiting for the signal, the Defendant, while allegedly intoxicated, drove her Ford across the center dividing line and struck the Plaintiff’s PT Cruiser nearly head-on at a speed of at least 35 mph. The collision force pushed the Plaintiff’s vehicle nearly ten feet backwards into the north bound lanes of U.S. 25, as it twisted 90 degrees.
The PT Cruiser’s steering wheel and below-dash airbags deployed upon impact, and the Plaintiff recalls her right hand/arm being slammed into something hard within the car’s interior, which likely was the center console. The steering-wheel airbag and the driver’s sun visor which flung loose both struck her in the face, causing facial and abdominal abrasions. The Plaintiff recalled the tremendous forces of the head-on impact, especially pushing through the floorboard and into her feet and legs and then causing her right arm to be slammed into the interior.
As a direct result of the collision, the Plaintiff sustained the following injuries:
- Left ankle, traumatic arthropathy, with fracture (medial malleolus), necessitating a subtalar joint fusion (arthrodesis); external fixation removal; subsequent delayed union of subtalar joint fusion with resultant peroneal tendonitis, necessitating bone stimulator treatment;
- Right hand fracture (comminuted, spiral fracture at base of 3rd metacarpal with shaft displacement, with laceration, necessitating closed reduction, internal fixation surgery;
- Right shoulder, full thickness tear of the supraspinatus (rotator cuff muscle/tendon) necessitating surgical repair;
- Knees, bilateral aggravation of pre-existing patellofemoral arthritis (resolved); and
- Right, small finger, post-traumatic tenosynovitis.
Liability Issues: No
Resolution Date: 2016 – The Plaintiff had a reasonably successful recovery from her injuries which allowed her to return to her professional duties in the medical field, without a loss of earning capacity. The parties entered into an equitable settlement of all claims against her under-insured motorist coverage, since her damages exceeded the liability coverage.
Case Type: Motor-vehicle Collision – Logging truck runs stop sign – Claimant passenger in Subaru
Lawsuit Filed: No (Rutherford County)
Summary: Claimant was a passenger in a Subaru being driven by her husband, when a logging truck allegedly ran a stop sign at an intersection and slammed into the Subaru’s passenger’s side. The Claimant’s body impacted the car interior with significant force, causing numerous severe injuries.
Most frighteningly, she sustained a cervical spine fracture adjacent to the vertebral artery, in addition to a debilitating sacral fracture. She also sustained right elbow lacerations from blunt trauma to her right arm which caused a partial rotator cuff tendon detachment. Furthermore, she sustained a right finger fracture and a significant aggravation of pre-existing lumbar spine degeneration.
Our firm produced a medical illustration depicting the cervical fracture which encroached on the vertebral artery, in order to emphasize the anatomy and the emotional distress the Claimant incurred until she eventually learned that the artery had not been torn.
Liability Issues: No
Resolution Date: 2016
Bus fatality highlights fuzzy area of immunity: Is transportation a proprietary or governmental function?
- North Carolina appellate law addresses questions of governmental immunity for counties and cities in a variety of situations. But a lawsuit that centered on an 87-year-old pedestrian who died after an Asheville city bus hit him left attorneys on both sides stumped.
“We agreed at the mediation that there was not a case on point,” said attorney Jay Kerr, who represented the plaintiff. “There’s not a North Carolina appellate court case that has interpreted whether or not a transportation system is a proprietary or governmental function. Motions for summary judgment would have been immediately appealable because they would have been appealed on right … This particular issue is ripe and waiting for a case.”
Hoping to avoid the uncertainty of the appellate process, the city settled with the estate of the deceased, James Stroupe, for $485,000.
Joe McGuire, who represented the city, said North Carolina courts have established government immunity for counties and cities in cases involving police vehicles, ambulances and other service vehicles, but not for cases involving bus systems.
“The doctrine is somewhat uncertain at this point,” McGuire said.
An Asheville Transit System bus hit Stroupe on Oct. 27, 2010 , as he walked across a parking lot from his car to a grocery store. He died nine days later of injuries sustained in the accident. Kerr alleged that the city failed to use reasonable care in monitoring the hiring of the bus driver and in retaining and supervising him. Under North Carolina law, cities cannot negotiate with unions, so many cities hire private companies to manage bus drivers. Asheville contracted with First Transit Inc. to manage the drivers, and that contract indemnified the company of liability regarding drivers. McGuire said the city has a policy of paying out-of-pocket expenses for anyone injured in an accident for which their bus drivers are responsible, regardless of sovereign immunity.
The bus driver, Tolley Tate, pleaded guilty to a charge of misdemeanor death by vehicle. McGuire said the city acknowledged that the driver hit Stroupe and that the accident was due to the driver’s inattention. Kerr asserted that the design of the bus route through the shopping center parking lot played a part in the accident as well.
The lawyers traded written arguments before the mediation. At one point, Kerr noted the North Carolina appellate courts’ “modern tendency to restrict the application of governmental immunity.” He wrote that in the 1970s and ’80s, the North Carolina legislature expanded and clarified statutes regarding how government activities are defined as public enterprises. The courts have since declared enterprises such as sewage systems, trash collection, landfills and airports to be proprietary and not afforded governmental immunity.
At mediation, Kerr also presented a commissioned seven-minute video documentary of Stroupe’s life, which Kerr described as “‘The Notebook’ meets ‘The Greatest Generation.’” Stroupe survived military action in World War II, the Korean Conflict and Vietnam, and in his later years nursed his first wife through her battle with Alzheimer’s. In Asheville, Stroupe visited schools and got involved in local issues. He was survived by his second wife and an adult daughter.
Determining a dollar figure for that life was a bit tricky, Kerr said. He said the negotiations began at around $800,000.
“It’s hard to assess the value of an 87-year-old whose life expectancy may be five or six years,” he said.
Kerr said Stroupe’s pension and income from military disability and Social Security figured into the equation, as did his continuing activity and family life.
Verdicts & Settlements Report
Type of action: Wrongful death
Case name: Richard E. Stroupe, Executor for the Estate of James D. Stroupe v. City of Asheville; Transit Management of Asheville; First Transit and Mr. Tolley Tate
Mediator: Wayne P. Huckle, Huckle Law Mediations & Arbitrations
Settlement: $485,000
Date of settlement: March 1, 2012
Attorneys for plaintiff: Jay Kerr (Asheville)
Attorneys for defendant:
- Joe McGuire of McGuire, Wood & Bissette (Asheville)
Case Type: Motor-vehicle Collision – Beverage Truck Runs Over Pedestrian in Wheelchair – Severe Pelvic Injuries – Alleged Wrongful Death
Summary Issues: Decedent was operating his powered wheelchair in the designated bike lane along a city street, just before turning into the parking lot of a convenience. Immediately upon entering the parking lot, he was struck by a beverage truck that entered the parking lot via the curb cut behind him. The driver alleged that he did not see the decedent. Plaintiff counsel alleged that the decedent was not violating any municipal or state laws by using the bike lane and not the adjacent sidewalk. Furthermore, plaintiff counsel alleged that based on the truck’s travel path, more likely than not the decedent still would have been struck even if he had been entering the parking lot off the sidewalk, which was only a few feet from the bike lane.
Liability Issues: Defense counsel alleged that driver used reasonable care but that the decedent failed to keep a proper look out, otherwise was contributorily negligent for using the bike lane in his wheelchair, and ultimately was a material cause of the collision.
Damages Issues: The decedent sustained horrendous multiple fractures to his pelvis which necessitating extensive surgery and internal fixations, substantially increasing his prior disabilities due to a stroke. Tragically, the decedent died at home several months after the trauma, after being discharged from a rehabilitation facility. Plaintiff counsel sought expert opinion on whether or not there was a causal relationship between the decedent’s traumatic injuries and untimely death; however, the available evidence suggested that the decedent died from natural causes. Notwithstanding the subject causation issues, considerable damages otherwise were clearly supported by the decedent’s interim pain, suffering and hardship due to his significant injuries prior to his death.
Resolution Date: 2013. The parties entered into a confidential settlement.
Case Type : Motor-Vehicle Collision/ Car Accident/Personal Injuries: Ambulance Paramedic Passenger – Total Disability
Lawsuit Filed: Yes (Buncombe County)
Summary: Plaintiff alleged that driver of passenger vehicle failed to heed sirens and lights of ambulance proceeding cautiously through intersection on call and collided into the passenger side of ambulance, causing it to spin around forcefully.
Liability Issues : Liability issues preserved by Defendant but not asserted pursuant to settlement discussions.
Damages Issues : Plaintiff Paramedic alleged that he became totally disabled after suffering a mild traumatic brain injury (closed head) and painful; herniated thoracic discs which necessitated a spinal cord stimulator implant for chronic pain management; and an aggravated lumbar spine condition which necessitated two spinal stabilization procedures.
Defense Counsel Representation: Yes
Recovery Dates : 2009/2010. Defendant driver’s insurance carrier tendered its primary liability coverage limits in exchange for the Plaintiffs’ executed Covenant Not To Enforce Judgment for the benefit of the Defendant driver, whereby the Defendant then was not exposed to a potential jury verdict but the Plaintiffs reserved all rights to proceed with their claims as to available underinsured motorists (UIM) coverage. The Plaintiffs thereafter selected arbitration in lieu of a jury trial; however, UIM claims were amicably and successfully resolved at a prior voluntary mediation.
Co-Counsel: Robb Hill, Esq. (Asheville, NC)
- Case Type : Motor-Vehicle Collision /Car Accident /Personal Injuries: Passenger sustained clavicle and spinal fractures
Lawsuit Filed: No
Summary: Claimant was a front-seat passenger in a vehicle that collided broad-side into an SUV that had attempted to turn across on-coming traffic without the clear right-of-way
Liability Issues: None
Damages Issues : The claimant suffered a right clavicle fracture; a lumbar vertebral compression fracture; and a displaced right ulna fracture. He incurred temporary disability from his self-employment real estate investment activities.
Defense Counsel Representation: No
Recovery Date : 2009. Primary liability coverage and Under-insured Motorists (UIM) coverage limits were obtained. Medical illustrations graphically depicting the claimant’s injuries were presented along with a videotaped interview of the claimant discussing the collision and the effects of his injuries.
Case Type : Motor-Vehicle /Truck Accident /Personal Injuries: Tractor Trailer intersection collision
Lawsuit Filed: No
Summary: Claimant driver of SUV alleged that tractor-trailer driver failed to yield at flashing red light intersection, causing T-bone impact.
Liability Issues : Carrier for tractor-trailer did not deny driver’s apparent failure but asserted that SUV driver failed to keep a proper lookout
Damages Issues : Claimant had a pre-existing, on-the-job back injury that made assessing collision spinal trauma problematic. However, she also sustained new trauma to her wrist from impact forces while gripping the steering wheel.
Defen se Counsel Representation: No
Recovery Date : 2009
- Case Type : Motor-Vehicle Collision/Car Accident/Personal Injuries: Nurse Suffers Loss of Earning Capacity from Leg Injuries
Lawsuit Filed: No
Summary: Registered nurse sustained significant injuries to her left knee which she alleged substantially impaired her professional duties and caused a loss in her long-term earning capacity. Her treating orthopaedist assigned a 15 % permanent partial impairment rating to the left knee pursuant to such injuries.
Liability Issues : None asserted
Damages Issues : The claimant’s loss of earning capacity was documented by substantial, credible evidence of her prior work duties, employer-recognized proficiency, compelled post-injury work modifications, and the nature and extent of her resultant physical impairments. A videotaped interview of the client discussing such impairments was presented to the insurance carrier pursuant to its claim evaluation process.
Defen se Counsel Representation: No.
Recovery Date : 2008
Case Type : Motor-Vehicle /Truck Accident /Personal Injuries: Passenger Suffers Severe Arm Fractures and Scarring
Lawsuit Filed: Yes (Jackson County, NC)
Summary: Teenage girl passenger suffered severe injuries when the young driver of a pick-up truck lost control while allegedly playing a game of “chicken” on a rural road with an acquaintance driving another pick-up. The truck flipped over and the teenage girl’s arm was partly crushed on the road.
Liability Issues : Both drivers were sued because the teenage girl alleged that she only learned after the collision that her friend driver knew of other driver’s propensity to swerve “playfully” across centerline, but that friend failed to use reasonable care after saw truck approach and make initial swerve. Friend driver admitted that he first saw other driver swerve over centerline and then back, but did not believe that he would cross the centerline again.
Damages Issues : The teenager was a fitness instructor who desired a career in the fitness industry. She sustained an extensive scar and deformation to her right upper arm that could not be easily treated with plastic surgery.
Defen se Counsel Representation: Yes
Recovery Date : 2006
Case Type: Motor-Vehicle /Car Accident /Personal Injuries: Corporate vehicle crosses centerline and strikes grandmother and grandson head-on
Lawsuit Filed: Yes
Summary: Grandmother with front-seat passenger grandson alleged that sales representative driver of corporate vehicle crossed the centerline unexpectedly and collided head-on into her car. The Defendant driver alleged that the grandmother crossed the centerline into his lane and then moved back into her lane, where he had swerved to avoid the collision, but unfortunately they collided when she moved back into her lane.
Liability Issues: Defendant driver and corporate defendant denied liability. Plaintiff counsel located an unbiased witness who declared that he saw the Defendant driver appear to be talking on his cell phone while driving in the wrong lane, immediately before rounding the curve where the collision occurred.
Damages Issues: Grandson suffered a significant hip injury which healed reasonably well but with some future risk of a potential total hip replacement. Grandmother suffered severe chest-wall trauma which her physician testified caused her to become oxygen dependent. Defendants alleged that the grandmother’s pre-existing COPD (chronic obstructive pulmonary disease) was the sole cause of her oxygen dependence.
Defense Counsel Representation: Yes
Recovery Date: 2003
Case Type: Motor-Vehicle Collision/Car Accident/Personal Injuries: Driver suffered significant bilateral leg fractures after colliding into garbage truck crossing highway
Lawsuit Filed: Yes (Buncombe County, NC)
Summary: Plaintiff mother driver with passenger children alleged that garbage truck driver pulled out into highway traffic without warning causing her to collided into the side of garbage truck at approximately 40 m.p.h.
Liability Issues: Defendant garbage company denied liability and asserted that Plaintiff failed to yield the right-of-way to the garbage truck lawfully entering the highway and also failed to keep a proper lookout. Plaintiff counsel retained an accident reconstruction expert who testified as to potential stopping distances based on assumed travelling speeds for the Plaintiff.
Damages Issues: Plaintiff suffered significant injuries to both legs which required extensive surgeries and rehabilitation. She was able to return to work but faced potential long-term medical care and physical therapy.
Defense Counsel Representation: Yes
Recovery Date: 2003 The case settled at mediation for payment of funds to reasonably compensate the Plaintiff for her future medical expenses, pain and suffering, and the long-term effects of her injuries.
Case Type: Motor-Vehicle Collision/Car Accident/Personal Injuries: Eight year old girl loses kidney from seatbelt trauma.
Lawsuit Filed: No
Summary: Eight year old girl was a front-seat, restrained passenger who was sleeping reclined while traveling with her mother along U.S. Hwy. 64 in Western North Carolina, when another driver, unexpected and without warning, crossed the center line from the opposite direction attempting to make a left-hand turn into the entrance of a resort development. The impact forces caused the lap belt across the girl’s abdomen to sever her left renal artery, resulting in the irreversible loss of the kidney.
Liability Issues: Although all rights were reserved by the prospective defendant driver, liability issues were not advanced by the driver’s insurance carrier.
Damages Issues: The key and complex issue was, “To what extent did the young girl suffer any long-term damage, since she could live and function well having her remaining, healthy kidney?” After compiling extensive research and consulting with experts, the firm advanced the argument that the young girl had lost her “insurance policy,” i.e., the safety of having two kidneys. However, she now would require protection (funds for potential medical care, disability, etc.) due to the risk of losing the second kidney if she engaged in bike riding, horseback riding, gymnastics, and other activities that posed an appreciable risk of renal trauma, or, in the alternative, she was damaged by the loss of enjoyment of such activities if she were to avoid them. Her youth was a significant factor since her life expectancy exposed her to greater statistical risks than, e.g., a sedentary, middle-age adult.
Defense Counsel: No.
Recovery Date: 1997. Plaintiff’s counsel negotiated what is believed to have been the largest settlement in North Carolina and South Carolina for pediatric kidney loss, while ensuring that the minor has had monies available throughout important stages of her life through an annuitized structured settlement.
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