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North Carolina Litigation Blog

Category Archives: Negligence

NC Court of Appeals Affirms Election of Remedies in Legal Malpractice

02 Monday Jan 2012

Posted by McIlveen Family Law Firm in law, Liability, NC Court of Appeals, NC Law, Negligence, News

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Court of Appeals, Law, Lawyer, Legal malpractice, NC Court of Appeals, Plaintiff, Summary judgment

I received a great Christmas present when the NC Court of Appeals issued an opinion in Danius v. Rogers, affirming summary judgment on behalf of a lawyer in a legal malpractice case I was defending. The plaintiffs settled the two underlying cases with the original tortfeasors and then filed suit against my client arguing that the lawyer’s alleged malpractice had damaged the settlement they were able to obtain. I argued that the plaintiffs had waived any claims against their attorney by electing to settle with the original tortfeasors. The Court of Appeals affirmed summary judgment, holding that the election of remedies barred the plaintiffs from pursuing claims of malpractice. A summary of the opinion appeared in the NC Lawyers Weekly December 28, 2011 edition under “Important Decisions”. The full opinion can be read here.

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Don’t Forget Your Carbon Monoxide Alarms

09 Wednesday Nov 2011

Posted by McIlveen Family Law Firm in Negligence, News

≈ 1 Comment

carbon monoxide

Image via Wikipedia

More than 400 people are killed each year in the United States from carbon monoxide poisoning, according to the Centers for Disease Control and Prevention (CDC). The American Medical Association reports that carbon monoxide poisoning is the leading cause of accidental poisoning deaths in the United States.

Other CDC studies indicate that more than 20,000 people are hospitalized each year from this gas, and these poisonings are on the rise due in part to economic reasons. With a stressed economy and high unemployment, more families face utility shutoffs. As a result, they employ other sources of heat, such as kerosene heaters, gas generators, and improperly maintained wood stoves and fireplaces. Such heat sources carry a heavy risk of carbon monoxide poisoning.

Carbon monoxide alarms are essential protective devices in homes with gas appliances, gas heaters, and fireplaces. Here are some tips to consider concerning these important alarms.

  • To ensure a high-quality alarm, look for the Underwriters Laboratories certificate on any detector you purchase.
  • Connect these alarms to the smoke alarm system so that any alarm in the house becomes activated if a problem arises.
  • Periodically test these devices according to the manufacturer’s instructions. Batteries should be replaced at least once per year. Replacement of the alarm itself is often necessary after a few years since the average life span of carbon monoxide alarms is relatively short.
  • Verify that you have alarms in bedrooms and other locations where people may sleep since people who are sleeping can die from carbon monoxide poisoning without experiencing any symptoms.

Get more personal lines insurance and risk management tips and ideas from IRMI.

Copyright 2011
International Risk Management Institute, Inc.

*****

Related articles
  • Homeowner Warning (autonetinsurance.co.uk)
  • Marin family hospitalized after carbon monoxide poisoning (mercurynews.com)
  • Marin family hospitalized after carbon monoxide poisoning (mercurynews.com)

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Big Changes for Med Mal in N.C.

14 Friday Oct 2011

Posted by McIlveen Family Law Firm in law, NC Law, Negligence

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An electronic stethoscope.

Image via Wikipedia

The new law effective on cases arising on or after October 1, 2011, requires the court to bifurcate a trial when a motion is made by counsel and where plaintiff seeks damages of $150,000 or more.  This means that in a medical malpractice case the jury must decide whether the doctor was negligent in a trial without knowing how much money the plaintiff is requesting. Then if the doctor is found negligent a second trial would determine how much money the plaintiff would be awarded.

Additionally, the law limits non economic damages to $500,000 except in cases of death, loss of use of a body part or disfigurement.

Related articles
  • Medical Malpractice Insurance Rates by State and Specialty (prweb.com)
  • The Effects of tort reform (chrisgreenmanforpresident.wordpress.com)

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Billed vs. Paid – A Big Change for Plaintiffs

14 Friday Oct 2011

Posted by McIlveen Family Law Firm in NC Law, Negligence, trial

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Medical Bills

Image by urbanbohemian via Flickr

N.C. House Bill 542 created Rule 414 of the North Carolina Rules of Evidence, relating to the admissibility of medical expenses at trial. Rule 414 states that evidence of the medical expenses is limited to evidence of the amounts actually paid to satisfy the bills, as well as the amount actually needed to satisfy any unpaid and outstanding bills. This is a significant change in the law. These changes become effective October 1, 2011 and apply to all cases on or arising after that date.

Related articles
  • Mastering the Rules of Evidence: Is it really important? (the-barristers-toolbox.com)
  • New Law Seeks To Limit Medical Expenses Accident Victims Recover, North Carolina Personal Injury Lawyers Say (prweb.com)

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Shun Those Cell Phones While Driving

14 Friday Oct 2011

Posted by McIlveen Family Law Firm in Insurance, NC Law, Negligence

≈ 1 Comment

Tags

accident, cell phone, Driving, Negligence

In my opinion, it is not the act of talking on...

Image via Wikipedia

More than 20 percent of injury crashes in the United States involve reports of distracted driving, according to the National Highway Traffic Safety Administration (NHTSA). Of those killed in distracted-driving related accidents, 18 percent involved the usage of a cell phone. Another study indicates that using a cell phone while driving, whether it is a hand-held or hands-free device, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.

Cell phones, and particularly smart phones, are considered one of the leading driver distractions. As a result, more and more communities are placing restrictions on drivers’ use of cell phones. The following tips are offered to motorists with regard to cell phone use in vehicles.

  • You should wait until the car trip is complete before placing a call. Your cell phone’s voicemail feature should answer a call while you are driving.
  • Absolutely essential calls should only be performed while stopped. However, it is not wise to pull over on the side of the road where a rear-end collision is possible. Instead, you should pull into a parking lot to perform this task.
  • The phone should be placed where it is easy to see and reach.
  • You should take advantage of speed-dialing capabilities.
  • You should never drive and talk on the cell phone during stressful, emotional, or complex discussions since the risk of an accident is heightened.
  • You should consider using a hands-free cellular phone since some studies indicated that these are safer to use.
  • You should never text message while driving.

Get more personal lines insurance and risk management tips and ideas from IRMI.

Copyright 2011
International Risk Management Institute, Inc.

*****

Related articles
  • Chicago community considers ban on eating while driving (calgaryherald.com)
  • Safety board: Ban cell phones for truckers (sfgate.com)
  • Cell Phone and Texting Laws (bespacific.com)
  • “Do As I Say, Not As I Do” Rules Drivers’ Decisions on Cell Phone Use and Texting (prnewswire.com)
  • National Safety Council Answers Distracted Driving FAQ in New Video Series (textually.org)

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Florida Court Provides Some Relief to Builders

09 Thursday Dec 2010

Posted by McIlveen Family Law Firm in law, Negligence, Products Liability

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Tags

2009 Chinese drywall controversy, construction, Damages, Drywall, Florida, Home insurance, Product liability

Chinese Drywall

Image via Wikipedia

A Florida court ruling provides some relief for home builders regarding the use of defective Chinese drywall. In Marlene Bennett v. Centerline Homes, Inc., et al., No. 2009-CA-014458, Fla. Cir., 15th Judicial Cir., Palm Beach Co. (a consolidation of a number of separate lawsuits), the court issued two rulings that limit home builders’ liability for injury or damage caused by defective drywall. First, the court ruled that home builders would not be held strictly liable for the alleged defects in the same way manufacturers and distributors of defective products can be held responsible for damages. This ruling prevents homeowners from establishing liability on the part of the builder merely by showing that a defect exists, and the defect caused damages. Rather, it requires demonstrating another legal basis for liability, such as builder negligence. Second, the court held that the economic loss rule prevents homeowners from filing tort claims that exceed the contractual remedies for economic loss, which will restrict homeowners’ recovery for economic damages (e.g., reduction in market value) to the terms spelled out in the home-purchase contract. It remains to be seen whether the decision, handed down November 10, 2010, will be adopted by other courts hearing cases pertaining to the use of defective drywall.

via http://www.IRMI.com

Related Articles
  • Chinese Drywall Update (homeownersinsurance.org)
  • Court Relieves Builders of Some Chinese Drywall Liability (blogs.wsj.com)

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November’s Tip of the Month

10 Wednesday Nov 2010

Posted by McIlveen Family Law Firm in Negligence, News

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Tags

Cooking, Cookware and bakeware, Emeril Lagasse, Risk management, Thanksgiving, Thanksgiving dinner, Turkey, Turkey fryer, Underwriters Laboratories

Day 18 Hail the Turkey Fryer!

Image by TrevinC via Flickr

Avoid Turkey Fryer Dangers

With Thanksgiving fast approaching, thoughts turn to turkey, dressing, and pumpkin pie. Delicious deep-fried turkey, historically prevalent in the southern states, is growing in popularity around the country, thanks to celebrity chefs such as Emeril Lagasse. The only problem is that the turkey fryers used to create this succulent dish are unsafe and not certified by Underwriters Laboratory (UL).

Turkey fryers are devices, resembling a large commercial coffee pot, that are filled with oil heated to 350 degrees Fahrenheit. Turkeys are placed in this hot oil to fry the birds.  The big problem, though, is that people often fill the fryers too full of oil, and it overflows when the bird is placed inside. This cascading oil hits the heating flames below, causing an instant fire. In addition, the turkey fryers are often quite unstable and easy to tip over. Lastly, many of these fryers lack adequate thermostat controls. Thus, the units have the potential to overheat the oil to the point of combustion. For these reasons, UL does not certify any turkey fryers with its trusted UL mark.

UL and other safety organizations strongly urge people to discard their existing turkey fryers. But for those people who insist on using their turkey fryers, UL offers the following tips:

  • Always use turkey fryers outdoors a safe distance from buildings and any other burnable materials.
  • Never use turkey fryers on wooden decks or in garages.
  • Make sure the fryers are used on a flat surface to reduce the chance of accidental tipping.
  • Never leave the fryer unattended since most units lack proper thermostat controls. If people do not watch the fryer carefully, the oil will continue to heat until it catches fire.
  • Never let children or pets near the fryer when in use. Even after use, never allow children or pets close to the turkey fryer. The oil inside the cooking pot can remain dangerously hot for hours after use.
  • To avoid oil spillover, do not overfill the fryer. Test it beforehand with water.
  • Use well-insulated potholders or oven mitts when touching pot or lid handles. If possible, wear safety goggles to protect eyes from oil splatter.
  • Keep an all-purpose fire extinguisher nearby.

Get more personal lines insurance and risk management tips and ideas from IRMI.

Copyright 2010
International Risk Management Institute, Inc.

 

Related Articles
  • Q&A: Deep frying a Thanksgiving turkey (blogs.consumerreports.org)

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Teen Killed Using Shredder Cannot Meet Standard for Woodson Claim

14 Thursday Oct 2010

Posted by McIlveen Family Law Firm in Liability, NC Court of Appeals, NC Law, Negligence

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Tags

Negligence, Woodson, Workers' compensation

Industrial shredder and granulator with a conv...

Image via Wikipedia

The N.C. Court of Appeals makes clear it takes more than negligence of the employer to meet the standard for a Woodson Claim. In Valenzuela v. Pallet Express, Inc., the Court upheld the trial court’s granting of summary judgment for the defendants, finding that the estate of a teenage boy who was killed while operating a shredder could not state a Woodson claim for negligence against his employer, even though the decedent was too young to operate the heavy machinery and a safety guard had been removed. The Court reasoned that there was no evidence that the employer knew its actions were substantially certain to cause serious injury or death.

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Res Ipsa Proper when Patient Falls From Gurney

04 Monday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, Negligence

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Tags

Hospital, N.C., N.C. Court of Appeals, N.C. Law, res ipsa, Res ipsa loquitur

Medical personnel using a stretcher-type gurney.

Image via Wikipedia

The N.C. Court of Appeals in Alston v. Granville Health System,  recently issued an opinion finding that a claim of negligence where the unconscious patient fell off a hospital gurney is proper under the doctrine of res ipsa loquitur.

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30th IRMI Construction Risk Conference

15 Wednesday Sep 2010

Posted by McIlveen Family Law Firm in Insurance, Insurance Coverage, Negligence

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Tags

conference, construction, Insurance, IRMI

The front of the Orange County Convention Cent...

Image via Wikipedia

I will be attending the 30th IRMI Construction Risk Conference, which is being held in Orlando, FL November 14-18, 2010. IRMI is a great resource for risk and insurance solutions for those in the construction industry. If you haven’t visited their website you are missing out on a wealth of information. http://www.irmi.com

Related Articles
  • CNA Provides Training, Presents Webinar to Demonstrate Commitment to Manufacturing Industry (eon.businesswire.com)
  • Stonegate Agricom Appoints James P. Geyer as Vice President North America; Annual Meeting of Shareholders to be Held on September 23, 2010 (newswire.ca)

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