Articles Posted in Negligence

steakhouse fareBuilding a case of negligence against a person or business that one believes caused an accident (such as a car wreck or a slip and fall at a restaurant) is a multi-step process. The first step is establishing that the party from whom the plaintiff seeks to recover money damages owed a legal duty of care to the plaintiff. Whether or not a duty exists is usually a legal question that revolves around the relationship between the parties. The second step of a negligence claim is proving that the defendant breached the duty of care that was owed to the plaintiff; this is usually a factual question. The remaining elements are harm to the plaintiff and causation between the defendant’s breach of duty and the harm to the plaintiff.

When the parties disagree about whether the plaintiff has produced sufficient evidence of these elements to proceed to trial, the trial court may be called upon to decide (via a summary judgment motion) whether the defendant is entitled to judgment as a matter of law, even if all of the plaintiff’s allegations are construed in the light most favorable to him or her. A party aggrieved by a trial court’s decision on a motion for summary judgment has a right to appeal the court’s order to a higher court.

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bar and loungeEveryone who drives an automobile should have liability insurance to pay medical expenses, lost wages, and pain and suffering to a passenger, motorist, or pedestrian who is injured as a result of the driver’s own negligence. Otherwise, any judgment in a negligence lawsuit brought against the driver could be collected from his or her personal assets.

There are many types of liability insurance in addition to automobile liability polices. You might be interested to know that various types of businesses have special liability insurance policies to cover business-specific negligence claims. This includes businesses that sell or serve liquor. Bars and nightclubs may purchase this insurance to cover a judgment against them as a result of a “dram-shop” action based on the negligent sale or over-serving of alcohol that results in injuries or death to a third party.

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Those who own and operate places of business have a duty to keep their premises reasonably safe for customers and other business invitees. This includes the duty to protect guests from criminal activity in some situations. However, the burden is on the injured person to prove that the property owner acted negligently.

The issue in such cases is often whether the attack was reasonably foreseeable, given such factors as the location of the establishment and any history of violence in the area.

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wooden gavel

Nursing home owners do not like jury trials. In fact, the idea of a jury comprised of everyday men and women determining whether a nursing home neglected a patient and, if so, awarding damages to a patient or the patient’s family is so distasteful to many nursing home owners that they require a patient or his or her representative to sign an arbitration agreement – a contractual promise to arbitrate, rather than litigate through the court system, any disputes that arise between the parties – prior to admission.

When negligence lawsuits and other nursing home cases are determined through arbitration, the patient and the patient’s family lose the right to have a jury decide the case. Often, the family does not fully understand the implication of this distinction at the time the papers are signed.

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school busEvery driver should know that South Carolina state law requires a motorist to stop when he or she is meeting or overtaking a school bus with its flashing red lights activated.

For obvious safety reasons, a driver is simply not allowed to pass a stopped school bus, nor is he or she allowed to drive past such a bus from the opposite direction. This much is clear from the plain language of the statute.

However, there can be other, less obvious situations involving a driver’s obligation to stop in the presence of a school bus with its lights flashing. In a case recently considered by the South Carolina Court of Appeals, one driver apparently assumed that it was safe to make a left turn when the bus was stopped, but another driver passed the bus and struck the first driver’s car in the side.

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Do you have insurance on your home? Do you know what it covers?

As a recent case shows, if you have homeowner’s liability insurance, you might think you are covered for more situations than you actually are. It’s always a good idea to review your policy from time to time so that you understand exactly what is – and is not – covered.

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Cruse ship leaving port.

The litigation of a personal injury case can be protracted and sometimes complex. Many issues can arise, and the parties may disagree at every possible juncture. It is then up to the trial judge to decide the various pre-trial, trial, and post-trial issues that arise.

A recent federal case sheds some light on some of the pre-trial issues that may come up in a personal injury case.

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Negligence and personal injury lawsuits can arise in a variety of circumstances, including an accident in a home. Regardless of the location of the accident, the statute of limitations for injury cases must still be complied with.

In the case of McAlhany v. Carter, the plaintiff brought suit in the Bamberg County Circuit Court, asserting a claim of negligence against the defendants and seeking both property damages and compensation for personal injuries he sustained due to an alleged failure to inspect a home in a reasonably prudent manner in 2007.

Facts of the Case

According to the plaintiff, he purchased a home from the defendant “flipper,” who had contracted with the co-defendant inspector to perform a termite inspection on the subject property in 2007. In 2009, the plaintiff was allegedly injured while painting an interior wall in the home. According to the plaintiff, his paint roller penetrated the wall, thereby releasing mold spores, which he breathed. As a result of breathing the mold spores, the plaintiff said that he became ill, suffering from nosebleeds, burning eyes, sores, and sinus problems.

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ford truckIt is unsettlingly common these days to hear of a large recall of cars, trucks, or SUVs, often as part of a settlement agreement between the manufacturer of the vehicles and the federal government as a result of findings that certain product defects have resulted in numerous injuries and deaths.

Recalls, unfortunately, do little if anything to compensate those whose lives have been shattered by defective or dangerous products. To do that, the injured party or the family of a deceased consumer must file a product liability lawsuit against the maker, wholesaler, or retail seller of the vehicle. Unfortunately, such cases may take years to reach trial and even longer to make their way through the appellate process.

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railroad crossingThe right to a jury trial is very important to our civil justice system. That said, jury trials can be complex and lengthy because of all of the procedural safeguards that are in place to make sure that the jury, presumably made up of laymen, considers only admissible evidence and is instructed accurately concerning the law.

It is not uncommon for appellate courts to review jury verdicts on appeal and come to the conclusion that the trial judge tainted the jury by an erroneous ruling or instruction. When this happens, the case must be remanded for a new trial, basically starting the process anew.

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