Jeanne H Washburn
Pedestrian Rights and Responsibilities

Pedestrian Rights and Responsibilities

crosswalkPedestrian Rights and Responsibilities?

In North Carolina, most of the rules governing pedestrians and their rights are common sense that has been codified into the North Carolina General Statutes. There are rules governing who has the right of way at crosswalks and what a pedestrian’s responsibilities are when crossing the street other than at a crosswalk.

§ 20-173. Pedestrians’ right-of-way at crosswalks.
(a) Where traffic-control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at or near an intersection, except as otherwise provided in Part 11 of this Article.
(b) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.
(c) The driver of a vehicle emerging from or entering an alley, building entrance, private road, or driveway shall yield the right-of-way to any pedestrian, or person riding a bicycle, approaching on any sidewalk or walkway extending across such alley, building entrance, road, or driveway. (1937, c. 407, s. 134; 1973, c. 1330, s. 32.)

 

Essentially, that means that pedestrians in crosswalks get the right of way and the drivers must yield. It also means that if one driver has stopped to allow a pedestrian to cross the street, other drivers should take care not to pass or overtake the stopped driver. It would be dangerous for the pedestrian and illegal for the passing car. Additionally, it means that all drivers that are crossing over a sidewalk to enter or exit a building entrance, private road, or driveway must yield to a pedestrian or bicycle.

 

What about crossing the street and not using the crosswalk?

North Carolina’s General Assembly wants to encourage pedestrians to cross at intersections and not in the middle of the block and to use crosswalks. This promotes public safety. The general rule is when possible to cross at the crosswalk. Where there is no crosswalk at the intersection, the pedestrian must yield the right-of-way to the drivers and specifically pedestrians are prohibited from crossing the street in the middle of the block between two crosswalks.

What are the driver’s responsibilities?

At all times, any driver in North Carolina is required to use due caution in driving. This is true whether or not he technically has the right-of-way.

North Carolina DOT has provided a pamphlet more fully outlining the rules of the road. https://www.ncdot.gov/bikeped/download/bikeped_laws_Ped_Laws.pdf. However, if you have been injured in an accident, you should seek the advice of an attorney to help you know your rights and your responsibilities.

Have you been hurt while working through a temp agency?

workerIn a recent North Carolina case, a worker was working through a temp agency with a company called BLW Sona. While working for the temp agency/BLW Sona, the worker was injured. The worker wanted to pursue workers compensation benefits against the temp agency and also wanted to pursue additional benefits against the company. The worker sued the company for negligence in state court. The company defended the case saying that Worker’s Compensation was the exclusive remedy. Also, they argued the claim belonged in the court of the Industrial Commission which handles workers compensation cases.

Generally, it is the rule that if you are injured while working, Worker’s Compensation is your only remedy from your employer. In other words, generally, you cannot sue your employer in civil court for negligence. There are exceptions to this rule. The claimant in this case was hoping an exception would apply. In this case, plaintiff was alleging that his employer was the temp agency and therefore he was able to sue the BLW Sona company in state court for negligence. The Court of Appeals held that:

If plaintiff was an employee of defendant, as well as of the temp agency, plaintiff may only seek compensation for his on-the-job injuries under the Workers’ Compensation Act.

So, in this case the worker was limited to the workers compensation benefits. However, these cases are complex and fact dependent. In this particular case, the Court analyzed a number of factors to reach this conclusion. If you have been injured on the job, call an attorney who can carefully evaluate your facts and determine your best course of action. You can find out what benefits you are entitled to only thorough analysis by an attorney familiar with your particular facts. You can call this office today for a free consultation.

What is a “disability” in the world of workers comp?

KELLY V. RAY OF LIGHT HOMES, COA14-1029: ESTABLISHING DISABILITY

In another recent unpublished opinion out of the Court of Appeals, an issue arose as to whether a claimant adequately established a disability after a work-related injury. This case had quite a few contested issues, however the most informative is the court’s language regarding disability.

In this case, the claimant suffered an injury when she was helping to lift an injured party off the floor at her place of employment. Specifically, she felt a tear in her back. The Industrial Commission awarded the claimant about a year of disability benefits, starting from her date of injury. However, both parties appealed. The claimant asserted that the Industrial Commission erred in only awarding a year of disability benefits. On the other hand, defendants argued that even the year of disability benefits was too much because the claimant had failed to establish she was disabled at all.

Determining the disability of a claimant is a multi-step process. First, disability is statutorily defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (2013). Next, the plaintiff can prove the alleged disability in one of four ways:

(1) produce medical evidence that she is, physically or mentally, as a consequence of a work related injury, incapable of work in any employment;
(2) produce evidence that she is capable of some work, but after a reasonable effort on her part he has been unsuccessful in obtaining employment;
(3) produce evidence that she is capable of some work, but that it would be futile to seek other employment because of other conditions;
(4) produce evidence that she has obtained other employment at a wage less than that earned prior to the injury.

As you can see, the claimant has many avenues in which to prove a disability. In this case, the claimant looked for a job only one time after the accident. Moreover, she had experience in many different types of positions, including clerical positions. The Court also determined that the claimant had failed to promptly seek medical attention after her injury. Finally, medical testimony of multiple physicians who treated claimant failed to show that she was disabled after the accident.

Thus, because of these factors, along with an absence of evidence showing a disability after the incident, the Court of Appeals reversed the Industrial Commission’s award.

Children_playing_tagHORSEPLAY IN WAKE COUNTY MIDDLE SCHOOL TURNS INTO “TERRIBLE ACCIDENT”

A sad story came out of Cary just a few short months ago. At East Cary Middle School in Wake County, one student pushed another who then collided with the 12-year-old victim. As the victim was falling to the ground, he hit his head on a table. According to school sources, the child suffered a “major head injury” as a result of the fall. At the time of this writing, there have been no further updates other than that the child is in good condition at WakeMed.

While not specifically implicated by these facts, people often ask about the potential for negligence claims against minors. It’s not quite as simple as saying whether minors are, or are not, negligent. North Carolina has generally adopted what is known as the “rule of sevens.”

Under the rule of sevens, a child under the age of seven is considered incapable of negligence. A child between the age of seven and fourteen is presumptively considered incapable of negligence, but the presumption can be rebutted with a showing of facts that would indicate the child should be treated like an adult regarding duty of care. Finally, a child between the ages of fifteen to seventeen is considered presumptively capable of negligence, but that presumption can also be rebutted.

Again, there’s nothing here to even suggest that legal action might take place. However, if it hypothetically did, you would probably see a case where the presumption would be applied to children treating them as if they are incapable of committing negligence. It’s not an insurmountable presumption, but it would be very difficult to show that a child in this context should have an adult-like duty of care attached.

If any updates to this story become available, we will be sure to update the post.

[http://www.newsobserver.com/news/local/education/article19960401.html]

Course and Scope of Employment?

Part 1: Holliday v. Tropical Nut & Fruit Co. (COA14-1030)

A recent case out of the North Carolina Court of Appeals addresses multiple hotly contested Worker’s Compensation issues. The case addresses whether an injury arose out of employment, whether the plaintiff suffered a compensable injury, and whether temporary total disability benefits were properly awarded. We will look at each of these issues in separate blog entries.

Today, we will look at whether an injury arose out of the course and scope of the plaintiff’s employment.

Here, a territory manager and sales representative for defendant-employer was at a team-building event in Charlotte, North Carolina. Each employee participated in bowling and/or laser tag at the event. While the plaintiff was playing laser tag, he felt a sharp pain in his leg, which worsened as the game went on. The plaintiff immediately told his superior and iced the knee. Plaintiff eventually had surgery to repair the knee and was laid off from the company in a restructuring the next year.

After the surgery, Plaintiff visited another doctor for a second opinion regarding the pain in his knee. The second opinion doctor determined that plaintiff needed a total knee replacement. Plaintiff eventually had the total knee replacement. As the knee replacement was going to require a 3-6 month recovery, Plaintiff then filed a Worker’s Compensation claim for the injury.

The first issue we will look at is whether the injury arose out of and in the course and scope of plaintiff’s employment. This is an interesting issue given the unique circumstances of the injury.

The Full Commission found that the injury did arise out of the course and scope of employment because plaintiff was at a work function that was almost entirely controlled and planned by his employer. The Court of Appeals agreed, holding that the Full Commission had an adequate basis for finding that the injury was in the course and scope of employment. The Court noted that employees were required to attend the event, they were encouraged to participate in the laser tag, and the employer derived a benefit from the conference as a whole.

This case presents a very interesting issue. Even if you are attending a team-building event or off-site conference, you are still likely covered by the provisions of the Worker’s Compensation Act.

Can I have Second Opinion?

The essence of Worker’s Compensation is that the defendant-employer gets to direct the medical treatment of the employee for a work-related claim. This means that the employee goes to a doctor that is approved by the employer and the employer’s insurance agency. As you could imagine, this tends to create issues in some cases. For instance, an insurance company might send an employee to a doctor that is typically stricter when determining whether work was the cause of a carpal tunnel injury.

The insurance agency’s selection of a medical provider can also be important on the back-end of a claim. For instance, if an employee still has a back injury that has not healed, an employer’s doctor may say that the employee has reached “maximum medical improvement.” This means that there’s really nothing more that can be done to improve the employee’s condition, such as surgical intervention. This can often be a hotly contested point in a Worker’s Compensation case.

In the event that one doctor tells you that further treatment will not benefit you, it is important to note that you have the statutory right under the Worker’s Compensation Act to request a second opinion. This right is limited, and it’s unlikely that you will be able to do it multiple times throughout the life of your claim. However, your attorney can first correspond with the insurance agency to schedule a second opinion. If the insurance company is not willing to grant a second opinion appointment, your attorney can file a motion with the Industrial Commission to force the insurance company to grant the second opinion.

This can be a very powerful tool in your Worker’s Compensation claim. It could mean the difference between having a claim at all, as well as whether you will continue to receive treatment in the future.

Speeding in Work Zones is the leading cause of car crashes

Wake County drivers may notice a lot of construction on one of our busiest roads, Interstate 40. The North Carolina Department of Transportation announced that starting today and continuing for more than a year they will close some lane on I-40 in order to rebuild the roadway. http://www.newsobserver.com/news/traffic/article29890144.html
Safety in a work zone is of utmost importance. The leading cause of crashes in a work zone is speeding. Being caught speeding in a work zone, even without a crash, can lead to significant financial penalties. If speeding causes a crash in a work zone very serious criminal charges could be filed . As always, if a driver is negligent by speeding, or in other ways, and causes a wreck, then he is responsible for the injuries that he causes.
accident-850469_640
NCDOT has provided a helpful website to educate the driving public about safety and work zones. In particular they post the following tips:
 STAY ALERT: Dedicate your full attention to the roadway.
 PAY CLOSE ATTENTION: Signs and work zone flaggers save lives.
 TURN ON YOUR HEADLIGHTS: Workers and other motorists must see you.
 DON’T TAILGATE
 DON’T SPEED: Note the posted speed limits in and around the work zone.
 KEEP UP WITH THE TRAFFIC FLOW
 DON’T CHANGE LANES IN THE WORK ZONE
 MINIMIZE DISTRACTIONS: Avoid changing radio stations and using mobile phones while driving in the work zone.
 EXPECT THE UNEXPECTED: Keep an eye out for workers and their equipment.
 BE PATIENT: Remember the work zone crew members are working to improve your future ride.

http://www.ncdot.gov/programs/workzonesafety/motorists/

WHEN CAN A BITE BRING YOU INTO COURT?

ANIMAL LIABILITY: WHEN CAN A BITE BRING YOU INTO COURT?

Lawyers are often asked about liability for the actions of clients’ animals. We all love our pets and can’t imagine a situation where they could hurt someone else. However, in many occasions it does happen, and it’s important to know your legal position at that time.

At the outset, there are two main categories to know regarding animal liability: strict liability, and knowledge. Strict liability means that the owner of the animal will be held liable for the damages caused by the animal, regardless of the facts and circumstances. The requirement of knowledge requires more from the animal owner, that the owner actually knew of the dangerous propensities of the animal.
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Generally, strict liability will be the applicable standard where the animal is considered a wild animal. For cases like these, the most typical animal would be an undomesticated animal such as a lion or a bear. Regardless of whether they are kept as pets, the owners will be held strictly liable for any damages caused by the animals.

The more common scenario is with domestic animals. Where the owner of a domestic animal, including farm animals, has knowledge of the particular animal’s dangerous propensities, the applicable standard will be strict liability. Thus, the easiest way to think about it is that strict liability is always the applicable standard. However, in cases of domestic animals, the plaintiff must first prove that the defendant had knowledge of the dangerous propensities of the animal.

For example, if a wonderfully behaved Wake County poodle suddenly snapped and bit a neighbor, it’s very likely that the dog would be treated as having dangerous propensities. Thus, if a second event were to occur where the lovely poodle bit a neighbor, the Wake County owner of the animal would likely be held strictly liable for the injuries caused.

These situations can become very difficult and fact intensive without the assistance of an attorney experienced in this area. If you think you may be liable, or may have been injured as a result of a wild or dangerous domestic animal, be sure to seek adequate representation.

WHAT IS CONTRIBUTORY NEGLIGENCE?

PERSONAL INJURY 101: WHAT IS CONTRIBUTORY NEGLIGENCE?
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In nearly any negligence case, the parties immediately wish to blame the other for the accident. This “blame game” can occur in a number of ways, but most often it comes in the form of a contributory negligence defense. Across the country, each state tends to treat the negligence of a plaintiff in different ways. The majority of states have adopted the comparative negligence scheme. This means that even if a plaintiff is negligent in the accident, the plaintiff will still be able to recover and will only have to reduce his/her recovery by the amount of his/her negligence.

On the other hand, a rogue minority of states continues to adopt the contributory negligence scheme, including North Carolina. Contributory negligence means that if the plaintiff is at least 1% negligent, at all negligent in causing the accident, the plaintiff’s complete claim is barred.

For example, if a Wake County driver is rear-ended by a Harnett County driver, you would immediately assume that the Wake County driver will be able to recover. However, if the Wake County driver was driving without her lights on, her claim would be barred under contributory negligence if the act of driving without her lights on caused, however slight, the damages that she suffered. As you can see, contributory negligence is a very powerful tool in personal injury actions.

It is important to note that contributory negligence is not a defense to intentional torts. For instance, if a Durham County citizen battered a Johnston County citizen, the Durham County citizen would not be able to plead contributory negligence even if the plaintiff said the worst things possible to provoke him. Each intentional tort has its own elements that must be proved, but contributory negligence is not a defense to an intentional tort.

As these types of issues come up in nearly every case, especially in North Carolina, it always important to consult with your lawyer about how to either raise the defense, or defend against a claim of contributory negligence.

OVER A DOZEN INJURED WHEN DECK COLLAPSES IN EMERALD ISLE

In an event eerily similar to one that occurred only a few years ago, at least eighteen people were injured during the July 4th weekend when a deck collapsed at a beach house in Emerald Isle. This event is very similar to a deck collapse in Ocean Isle in 2009, which sent over twenty vacationers to the hospital. It appears that the family was attempting to take a photo on the deck when it collapsed.
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The legal implications of a tragic event like this have seen consistent evolution over the past fifty years. It used to be the majority rule that a vacation home owner was not liable for incidents such as these. The theory was that the renters are coming in to the homes for long vacations and thus have a duty to inspect the premises themselves for any potentially dangerous circumstances. Moreover, the rule also considered that vacation home owners rarely were physically present at the homes and might not be aware of the condition of the property.

However, eventually the insanity of this legal position was realized. Most states, North Carolina included, have adopted vacation home rental acts. These statutory schemes place an ordinary duty of reasonable care upon vacation home owners. It is always a good idea to inspect the premises when you arrive to determine if there are any obviously dangerous conditions. It is also important to keep in mind that using the property in a way that is not foreseeable could also create a danger that would not be compensable. It is unclear whether dozens of people on a deck taking a group picture would be unforeseeable, but the liability of a vacation home owner is not absolute.

Cases like these can be very fact intensive and require an acute awareness of the specific law. Lets hope that we don’t see another repeat of this accident for a long time.

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