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Injured school children receive $900K settlement


By: Heath Hamacher of NC Lawyers Weekly

A group of children injured while crossing a highway to board their school bus have agreed to settle their claims for $902,500, the children’s attorneys report.

Jay Kerr of Asheville reported that the students were struck by an SUV being driven by an elderly man who said that he failed to see the children crossing a dual-line highway in Brevard, despite the school bus’s flashing yellow lights. Many of the case’s details have been withheld pursuant to a confidentiality agreement.

The plaintiffs also claimed that the bus driver failed to keep a proper lookout for oncoming traffic and that he should not have deployed the stop arm without ensuring the children’s safety. The driver claimed that he tried to blow the horn to warn the children of the approaching SUV, Kerr wrote in an email, but footage from the bus’s dash camera suggests that the driver did not attempt to blow the horn until less than two seconds before the children were struck.

“[H]e also did not report the horn’s alleged failure to the investigating N.C. State Highway Patrol officer,” Kerr wrote.

Kerr represented an 11-year-old boy, a hemophiliac who suffered a skull fracture and subdural hematoma (a gathering of blood between the skull and the brain that can cause brain damage), and the boy’s sister, who suffered a nose fracture and a knee sprain. Both children have made full recoveries.

Kerr also advanced negligent infliction of emotional distress (NIED) claims on behalf of another sibling who was not physically injured, but suffered “great distress” seeing her brother and sister struck by a vehicle. 

Brian Elston, also of Asheville, represented another preteen who was knocked unconscious and suffered a growth plate fracture to her thigh bone just above the knee joint. Elston also represented the girl’s teenage sister, who was uninjured but witnessed the event from just feet away. Elston also advanced NIED claims on the behalf of both clients, claiming that both girls suffered post-traumatic stress disorder. The girls have undergone psychological treatment and have fully recovered.

Kerr added that procedurally, since exclusive jurisdiction for negligence claims against the school board under direct negligence or respondeat superior theories would be with the N.C. Industrial Commission under State Tort Claims Act, the board could not be sued in civil superior court. The bus driver, however, was allowed to be sued in superior court, but solely in his individual capacity.

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Truck Accident: $450,000.00 confidential settlement of negligence claims against nationwide cargo trucking company for severe bodily injuries sustained in rear-impact collision.


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.

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