Articles Posted in Negligence

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There are many scenarios through which a claim for uninsured or underinsured motorist (UM/UIM) insurance benefits may arise. Typically, such a claim happens as a result of a South Carolina car accident in which the negligent driver either had no insurance at all or had only minimum coverage.

However, UM coverage can also apply in other situations, including an occasion in which the claimant is struck by another vehicle while walking as a pedestrian.

Facts of the Case

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When a South Carolina personal injury lawsuit is filed, it can be resolved in several different ways. The plaintiff’s claim may be dismissed – either voluntarily, or by the court – thus ending the litigation. The matter may proceed to trial, and a judge may enter judgment upon a jury’s verdict. Of course, the majority of cases are ultimately settled out of court (and many others are settled without formal litigation ever having been filed). But what happens when a settlement agreement is not honored? What recourse does someone have when they don’t get the benefit of the bargain into which they entered?

Facts of the Case

In a recent case, the plaintiff originally filed suit against the defendant back in 1998. Although the court’s opinion did not disclose the exact nature of the dispute between the parties, the dispute was apparently settled through some type of mediation that occurred in 2002. As part of the settlement, the defendant signed a “confession of judgment” in the amount of $350,000 plus post-judgment interest. In exchange, the plaintiff released all of his claims and dismissed his case with prejudice.

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South Carolina medical malpractice cases can arise in a number of contexts, including not only obvious mistakes, such as leaving an instrument inside a patient’s body or surgically removing the wrong organ, but also more complicated situations, such as a failure to make a timely diagnosis of lung cancer.

While the physician may not have caused the underlying medical condition (such as cancer), if it can be said that his or her failure to make a diagnosis in accordance with the applicable standard of care caused ultimate harm to a patient, there is a possibility that a medical malpractice claim may lie against the doctor.

Of course, each case is fact-specific, and there must be competent evidence from expert witnesses – other doctors – to explain to the jury exactly what should have happened, what went wrong, and how the error ultimately affected the patient. Without expert testimony, most medical malpractice cases fail regardless of how seriously the patient was injured (or even if he or she passed away due to the alleged mistake).

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In a South Carolina personal injury case, the plaintiff must be able to prove negligence in order to recover damages. This requires proof of four distinct elements:  duty of care, breach of duty, actual/proximate causation, and damages.

In negligence cases, the jury typically resolves factual issues, but the trial court judge has the task of resolving questions of law. Whether or not a defendant owed a duty of care in a particular situation is usually a legal question for the court to resolve. If the court finds that there was a duty of care owed to the defendant by the plaintiff, the issue of whether that duty was, in fact, breached falls to the jury in most cases.

Facts of the Case

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When someone is a victim of medical malpractice, he or she may incur substantial medical expenses because of his or her injuries. When the injured person is a minor child, it is usually the parent who bears the financial responsibility for those expenses. The state’s highest court entertained a South Carolina medical malpractice case earlier this month in which the issue was whether a minor had the right to sue for his or her medical expenses or whether only a parent had that right.

Facts of the Case

In a recent case under consideration by the South Carolina Supreme Court, the plaintiff was the mother of a minor child who allegedly suffered an injury during her birth in 2007. The mother, acting as the child’s next friend, brought two separate medical malpractice actions in York County, one in 2009 against the doctor and medical group and one in 2012 against the medical center.  The lawsuits were consolidated.

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Suppose that three people are involved in an automobile accident, and the parties agree that one of the three was completely faultless with regard to the cause of the crash.

How should the issue of fault be resolved between the remaining two drivers? What if the innocent party settles his negligence claim with one of the drivers but not the other?

The state’s highest court was recently called upon to rule in a case involving such a situation.

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sale signWhen members of the general public think about lawsuits in which a person has been injured or killed due to another party’s negligence (such as a South Carolina premises liability case), they may envision the case going to trial and a jury deciding whether the defendant was negligent and, if so, the amount of compensation to which the plaintiff is entitled.

However, not every plaintiff gets to have a jury decide his or her case. Often, the defendant in a personal injury or wrongful death case will file what’s known as a “motion for summary judgment.” In reviewing such a motion, the trial court judge is called upon to decide whether, in viewing the evidence in the light most favorable to the nonmoving party, there are genuine issues of material fact. Only if the answer is “yes” does the case proceed to a jury trial.

Facts of the Case

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When an employee is hurt at work, he or she is usually limited to benefits available under the workers’ compensation laws. Such benefits typically include past and future medical care, temporary disability, or permanent disability payments. Under the “exclusive remedy doctrine,” the employee cannot file a traditional negligence lawsuit against his or her employer.

However, when a worker is hurt due to a third party’s negligent conduct, he or she has the option of proceeding in tort against the responsible party. (The employee may be required to repay amounts received from workers’ compensation if the third-party claim is successful.)  Such cases can be complex, especially if the employer also contributed to the cause of the accident. A recent case is illustrative.

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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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