Jeanne H Washburn
OVER A DOZEN INJURED WHEN DECK COLLAPSES IN EMERALD ISLE

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.

NEGLIGENCE PER SE OR FAILURE TO SAFELY OPERATE A MOTOR VEHICLE?

POPE V. BRIDGE BOOM, INC.: NEGLIGENCE PER SE OR FAILURE TO SAFELY OPERATE A MOTOR VEHICLE?

The facts of a recent published decision out of the North Carolina Court of Appeals addresses an interesting factual scenario that could conceivably come up in nearly any case. At the outset, it is necessary to define a key term: negligence per se. In its simplest form, negligence per se means negligence as a matter of law. In a typical negligence claim, the plaintiff must prove: (1) duty; (2) breach of that duty; (3) cause in fact; (4) proximate cause; and (5) damages. However, if a plaintiff can prove that the defendant was in violation of a law while performing the negligent act, and that negligent act caused the plaintiff’s injuries, the plaintiff can bypass the duty and breach portion of the analysis. The plaintiff would still have to prove causation and damages, but a lot of the difficult portion of a negligence analysis would be complete.
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In this case, the plaintiff argued that the defendant was negligent per se. The accident occurred in Mecklenburg County on Independence Boulevard, a very heavily traveled road in Charlotte. The defendants operated a street cleaning operation and were conducting those activities at the time. Three trucks belonging to the defendant were cleaning the street when two cars had to stop suddenly and change lanes. The third vehicle, a motorcycle on which the decedent was riding, also had to suddenly stop. However, instead of decelerating, the motorcycle slid on the asphalt. The operator and passenger on the motorcycle were thrown from the bike. The passenger died and the administrator of her estate brought this action.

The negligence per se portion of this case came out at trial. The plaintiff argued that the defendant was negligent per se because they were allegedly in violation of a statute that required the trucks to be on the shoulder of the road. However, the defendant offered expert testimony that suggested that it was the use of too much rear brake in the motorcycle by the operator that caused the accident, not the street cleaning crew.

This case does a fantastic job of highlighting how even a case with apparent negligence per se is never straightforward. Moreover, North Carolina is a contributory negligence state, which means that any negligence on the part of the plaintiff will completely bar recovery. This makes it very difficult on North Carolina plaintiffs without strong representation.

If you’re wondering, the plaintiff ended up losing in this case. The Court of Appeals upheld the jury verdict, finding that the motorcycle rider’s negligent operation of the vehicle was the actual cause of the decedent’s death.

HORSEPLAY 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.”
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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]

ARTSPLOSURE AERIAL DISPLAY INJURES BYSTANDER IN RALEIGH

WEIRD CASE: ARTSPLOSURE AERIAL DISPLAY INJURES BYSTANDER IN RALEIGH

Artsplosure is a very popular festival that occurs on Fayetteville Street each year. Citizens from Wake County and beyond often flock to downtown for fun events, but rarely do they consider the possibility of being injured by a flying acrobat. Unfortunately, this was the case at the most recent Artsplosure event.

An aerial acrobatic duo was performing maneuvers, anywhere from 16 to 30 feet in the air, when part of the structure collapsed. A Wake County man was injured as a result. His injuries did not appear to be life threatening, but he did appear to be in significant pain as he was taken to the hospital from the event.

Accidents like this always bring up interesting legal issues. Thankfully, Raleigh requires that all festival organizers, food vendors, and service providers carry insurance for events like these. However, the aerial group itself was not required to carry insurance because they weren’t using equipment that was available to the public, according to the News & Observer.

At an event like this, where tickets are not sold and people are generally free to come and go as the please, there would certainly be no assumption of risk or waiver of liability defense on the part of the aerial group or the company that oversees them. The most difficult part of this situation is likely going to be determining who to file a claim against, rather than whether the claim will succeed. The man appears to have suffered injuries and should have a solid negligence claim against someone.

We’ll keep an eye on it.

http://www.newsobserver.com/news/local/counties/wake-county/article21240363.html

DEATH OF YOUNG WOMAN RESULTS IN $25 FINE FOR DRIVER

MOTOR VEHICLE ACCIDENT WHICH CAUSED DEATH OF YOUNG WOMAN RESULTS IN $25 FINE FOR DRIVER, AND AN UPSET WAKE COUNTY MOTHER

At times, the justice system produces odd results. It’s an escapable fact that, in many cases, the punishment will not fit the crime.

In a motor vehicle accident, which occurred over two years ago, a young Pitt County woman lost her life after a teenage driver crossed the centerline and crashed head-on into her vehicle. At the time, the driver of the truck was seventeen years old. Immediately after the accident, the district attorney charged the driver with misdemeanor death by vehicle. The charge is appropriate where: (1) the act was unintentional; (2) the person was violating a state law regarding the operation of a motor vehicle; and (3) the violation of the law was the proximate cause of the death.
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This would have seemed like a slam-dunk case, as the facts suggested that the driver was using his cell-phone at the time, in violation of state law. However, after two mistrials, the district attorney was forced to allow the defendant to plead guilty to driving while using a cellphone and pay a $25 fine. This case exemplifies how difficult it can be to prosecute criminally for traffic accidents due to how fact intensive they can be.

On a separate note, the driver would certainly have some liability in tort law for his actions. A negligence action, unlike a criminal case, only uses a preponderance of the evidence standard. This just means that the jury must find that it was more likely than not that the defendant was negligent and caused the death of the woman. However, in many cases involving a defendant teenager, there simply may not be any funds to which a judgment could be attached.

[http://www.newsobserver.com/news/local/counties/wake-county/article30465549.html]

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.
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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.

WHO QUALIFIES AS A “WIDOW”?

EASLEY V. TLC COS., COA15-62: WHO QUALIFIES AS A “WIDOW”?

A recent unpublished opinion out of the North Carolina Court of Appeals addresses a very rare issue: what facts must be present for someone to qualify as a widow?

At the outset, the definition of a “widow” under the North Carolina Worker’s Compensation Act is statutorily defined. Under the act, a widow must be “living with or dependent for support upon him at the time of his death; or living apart for a justifiable cause or by reason of his desertion at such time.” N.C. Gen. Stat. § 97-2(14)(2013).

With that definition in mind, let’s take a look at the facts. The couple married in January of 2003. In 2009, the couple separated. The wife (now claiming death benefits) claims that the husband forced her to leave. On the other hand, the husband’s son claims that they separated my mutual agreement. There are facts present that also suggest the wife had mental infirmities. Furthermore, there was no financial support exchanged between the parties after the separation took place.

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The Industrial Commission awarded all death benefits to the husband’s son because the wife did not meet the aforementioned definition of a widow.

The Court of Appeals affirmed. The Court held that nearly every fact agreed with the Industrial Commission’s findings. First, nothing in the facts suggests that the wife was depending on her husband for care or support. They were completely financially independent from each other. Second, there were no facts indicating foul play on the part of the deceased husband. He did not desert or abandon his wife. Furthermore, the Court held that even if he had deserted her, he would have likely done so based on a justifiable reason because of evidence showing various mental infirmities. Finally, the widow testified that she had not even spoken with her husband for nearly a year preceding his death.

All of these facts, under a totality of the circumstances analysis, led the Court of Appeals to affirm the Industrial Commission.

COURT OF APPEALS UPHOLDS DENIAL OF COMPENSATION DUE TO LACK OF “ACCIDENT”

BATTLE V. MEADOWBROOK MEAT COMPANY, COA14-1059: COURT OF APPEALS UPHOLDS DENIAL OF COMPENSATION DUE TO LACK OF “ACCIDENT”

 

In a recent unpublished opinion, the Court of Appeals upheld the Full Commission’s denial of Worker’s Compensation to an employee because his injury was not caused by an “accident.” This case is a great example of why facts matter in Worker’s Compensation cases. It also does a great job of highlighting why there is rarely a straightforward and clear-cut Worker’s Compensation case.

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At first glance, the facts of this case would seem rather ordinary for a successful claim. However, there is an underlying distinction that is important for claimants and their attorneys to be aware of.

In this case, the employee-claimant was a truck driver for Meadowbrook Meat Company. His primary duties consisted of unloading the trucks and placing the product in the restaurants of the customers. While unloading the materials on a truck at a Golden Corral, the employee felt a “pull” in his arm. The injury occurred when employee-claimant was trying to move product off of a pallet that was stuck on debris in the truck. As the employee-claimant and a colleague moved the product from the stuck pallet to an empty pallet, he was forced to lay on his stomach to reach some boxes on the far side of the stuck pallet. When pulling the third of four boxes, he felt the injury. Employee-claimant finished his work for the day and notified his employer of the injury at the end of the day and the next morning. The injury eventually resulted in shoulder surgery.

At hearing, the primary contention by employer-defendant was that the injury did not occur as a result of an “accident” in the course and scope of employment. The Deputy Commissioner agreed. Subsequently, the Full Commission affirmed.

On appeal, the Court addressed the narrow issue of whether an “accident” was the cause of employee-claimant’s injury. The Court of Appeals agreed with the Full Commission and affirmed due to lack of accident.

The Court used the North Carolina Supreme Court’s interpretation of an accident: “. . . an unlooked for and untoward event which is not expected or designed by the person who suffers the injury.” While much more expansive than the previous sentence, the definition generally comes down to whether the injury was caused by performing an act that is normal and a part of the employee’s duties.

Thus, on appeal, employee-claimant’s primary contention was that he was not performing a normal act in the course and scope of his employment because he was on work restrictions at the time, due to a previous knee injury.

The Court, looking at the findings below, agreed with the Full Commission that employee-claimants injury did not occur as the result of an accident. Relevant factors to the decision were that: (1) the employee was, at times, capable of pulling the pallets off of the truck and placing them in the restaurant; (2) the employee-claimant testified that his regular job duties sometimes included leaning on to pallets to pull the product. Therefore, the Court of Appeals affirmed.

WOULD A VOLUNTEER FIREFIGHTER BE COVERED BY THE WORKER’S COMPENSATION ACT?

The answer is yes! Most of the time. The Worker’s Compensation Act is traditionally thought to cover injuries of conventional employees, those in an employer-employee arrangement. However, odd cases often pop up where employees get injured in volunteer scenarios. It is easy to imagine how a volunteer firefighter could get injured in that line of work. The Act does not allow these firefighters to go uncompensated for their injuries.

Under N.C. Gen. Stat. 97-2(5), volunteer firefighters are specially mentioned as compensable under the Act. The harder question is determining on what basis they will be compensated. The Act allows for volunteer firefighters to be compensated based upon the average weekly wage the person was earning in their principal employment on the date of the injury. Thus, if a volunteer firefighter’s principal job is on a construction site, he or she will be compensated based on that rate of pay.

For instance, in Brown v. Walnut Cove, 71 N.C.App. 409 (1984), a volunteer firefighter was injured on the job. He had recently been laid off from his principal job at Roadway Express. The Court held that his compensation should be calculated based upon his earnings at Roadway Express because that was his principal job and the one that he expected to eventually return.

Therefore, even if you believe that your status as a “volunteer” makes you unable to recover compensation from an employer, please consult an attorney. There are many exceptions throughout the Worker’s Compensation Act that take care of someone who may not be a conventional employee.

WHAT HAPPENS IF A MINOR IS INJURED ON THE JOB?

Minors are not excluded from compensation under the Worker’s Compensation Act. Tens of thousands of minors work in jobs throughout the state, from amusement parks to fast food restaurants.

In the event that a minor is injured while on the job, the compensation rate could be determined in two different ways. The compensation is first calculated by the average weekly wage paid to adult employees employed by the same employer at the time of the incident doing similar work as the minor was doing. Second, the minor’s compensation could be determined by a wage sufficient to yield the maximum weekly compensation benefit.

This is one area of the Worker’s Compensation Act where the policy is heavily in favor of the employee. While an adult would end up being compensated only for his or her actual wages when the injury occurred, minors are given the benefit of other avenues of calculating the wage. For instance, if a minor is being substantially underpaid in his position, and adults at the same employer are making much more, the minor’s compensation is going to mirror that of the adults.

Therefore, it’s critically important to contact an attorney if you are a minor, or if a minor in your family was involved in a workplace incident. While uncommon, minors do fall under the act and can be compensated for their injuries.

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