Articles Posted in Negligence

Most issues arising in a South Carolina automobile accident case can be handled in state court. Sometimes, however, a case is filed in federal court. When this happens, a state court may be asked to weigh in on a particular issue of South Carolina law.

This is especially likely in cases involving issues which have not previously been addressed specifically by the state courts.

Facts of the Case

In a recently considered declaratory judgment case, the defendant was a man who, along with his late wife, had been involved in an automobile accident caused by a drunk driver. At the time of the accident, the couple was traveling in a car owned by the late wife’s mother. After the wife passed away from injuries suffered in the accident, the drunk driver’s automobile liability insurance company tendered policy limits to the man as compensation for his personal injuries and his late wife’s injuries and wrongful death. The mother’s uninsured/underinsured motorist carrier also paid policy limits to the man. The man’s own UM/UIM carrier tendered UIM bodily injury limits, but it refused the man’s request for additional funds (to be paid from property damage coverage of the “split limits” policy) for potential punitive damages against the drunk driver. Continue reading

Most South Carolina medical malpractice lawsuits revolve around the issues of whether the defendant health care provider breached the applicable standard of care and, if so, the amount of compensation due to the victim.However, sometimes there are other issues, such as in a recent case in which the malpractice action was settled, but a dispute arose as to who was entitled to share in the monetary proceeds paid by the allegedly negligent medical providers.

Facts of the Case

In a recently decided appellate case, the plaintiff was the mother of a minor child who died an hour after she was born. The mother brought a wrongful death and survival action against the child’s medical providers, seeking damages for medical malpractice. The mother named the defendant and another man (who was later dismissed from the case) as putative fathers. After the lawsuit was settled, the mother petitioned the trial court to deny the defendant any interest in the wrongful death proceeds, relying on South Carolina Code § 15-51-40. The probate court agreed with the mother that the defendant had failed to provide reasonable support and was thus not entitled to share in the proceeds of the settlement.

A popular idiomatic phrase goes something like, “Don’t make a federal case out it!” Generally, “making a federal case” out of something means that it has been built up or exaggerated beyond what is reasonable, but, like most common phrases, there is a nugget of truth behind the words.

For instance, a lawsuit arising from a South Carolina truck accident will tend to be more expensive, more time consuming, and more difficult than a similar action filed in state court. For this reason, it is not unusual for a defendant to “remove” a state case to federal court if the federal court has concurrent jurisdiction. Under certain circumstances, the plaintiff may ask the federal court to remand the case to state court.

As one might expect, all of these legal shenanigans can add months, or even years, to the time it takes the plaintiff to recover fair compensation for personal injuries or a loved one’s wrongful death caused by the negligence of the defendant(s).

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While most people understand that they “need insurance” for certain situations, such as car accident, a house fire, or a slip and fall accident on their premises, few individuals or business owners truly understand all of the different types of insurance that are available, how they differ from one another, and what the best choice may be for a particular situation.

Accordingly, it is not unusual for those who are not insurance professionals themselves to rely heavily on their insurance agent to provide appropriate coverage. When the agent does not provide reliable advice, a South Carolina negligence lawsuit may be possible against the agent or the agency that employed him or her.

Facts of the Case

In a recent (unreported) case from the South Carolina Court of Appeals, the plaintiff was a woman who purchased a policy of commercial automobile insurance for her daycare business in April 2010. After a parent drove a car through the wall of the plaintiff’s business, causing personal injuries to the plaintiff, the plaintiff sought coverage for her injuries. According to the plaintiff, she thought that she had purchased coverage “for every person who went in and out of the building, including herself.” The defendants, the insurance agent and agency from whom the plaintiff purchased her policy, denied her claim.

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It is not unusual for one or more of the defendants in a South Carolina product liability lawsuit to seek federal bankruptcy protection. This is especially true if a particular product has been accused of causing numerous serious personal injuries or wrongful death.

The effects of the bankruptcy can vary, depending upon the particular situation at hand. In some cases, a bankruptcy can effectively terminate a pending state court lawsuit, forcing the litigant(s) to pursue their claim along with other creditors in the bankruptcy case.

Facts of the Case

In a recent South Carolina Court of Appeals case, the plaintiffs were the mother and guardian ad litem of a five-year-old child who allegedly suffered severe burn injuries during the November 2010 explosion of a portable gasoline container manufactured by one defendant and sold by the other. The plaintiffs’ filed respective lawsuits against the defendants, the maker and a retail seller of the container, in Hampton County Circuit Court in November 2013, asserting claims for product liability, strict liability, breach of warranty, and negligence. (The suits were later consolidated.)

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Those who have been hurt by someone else’s negligent or reckless conduct should receive fair compensation for their medical expenses, lost wages, and pain and suffering. Unfortunately, not every South Carolina personal injury lawsuit arising from an act of negligence goes smoothly.

Not only is liability often denied (many defendants try to put the blame on the injured person or a third party), but insurance coverage issues can also crop up, making it harder to collect a settlement or judgment even when liability can be proven. In such situations, a bad faith claim against the insurance company is a possibility.

Facts of the Case

In a recent (unreported) appellate court case arising from the Circuit Court of Greenville County, South Carolina, the plaintiff was a limited liability company that operated a saloon. After one of its patrons filed suit against it claiming that she was injured by an unknown person playing a boxing arcade game inside the saloon, the plaintiff sought coverage from the defendant insurance company, from which the plaintiff had purchased a comprehensive general liability insurance policy. (According to the saloon patron, her injuries occurred when she was inadvertently struck and knocked unconscious by an unknown person playing the arcade came.)

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In a South Carolina automobile accident case, the plaintiff has the burden of proving that the defendant was negligent – that is, that the defendant’s failure to act in a reasonably prudent manner resulted in damages to the plaintiff.

Once this has been done, the defendant may seek to reduce the jury’s verdict by pointing the finger back at the plaintiff, accusing him or her of also being negligent in causing the accident. It is ultimately up to the jury to decide which side to believe and how much money to award the plaintiff if it finds in his or her favor.

Facts of the Case

In a recent case (unreported), the plaintiff was a woman who was struck by a vehicle as she walked alongside the road. She filed suit against the defendant sheriff department and its employee (who was driving the vehicle that struck her), seeking compensation for her injuries. The Marion County Circuit Court dismissed the employee from the case after finding that he was acting within the course and scope of his official duties as a reserve officer with the defendant sheriff’s department at the time of the accident.

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In a South Carolina personal injury lawsuit, the plaintiff has the burden of proving, by a preponderance of the evidence, that the defendant owed him or her some type of legal duty and that the defendant either acted in a manner that breached this duty or failed to take an action that a reasonably prudent person would have taken under the circumstances, thus causing harm to the plaintiff.

The plaintiff must also show that there was a link of proximate causation between the defendant’s breach of duty and the damages about which the plaintiff complains. Unless the plaintiff can present credible, legally admissible evidence of his or her allegations, his or her case will be dismissed by the court.

Facts of the Case

In a recent unreported case arising in the Anderson County Circuit Court, the plaintiff was a man who filed suit against the defendants, asserting that they were negligence and seeking monetary compensation for his resulting damages. The defendants filed a motion to dismiss the plaintiff’s case pursuant to South Carolina Rule of Civil Procedure 12(b)(6). The trial court granted the motion, and the plaintiff appealed.

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Under South Carolina law, a property owner can be held legally liable for injuries suffered by visitors and others who are legally on the owner’s premises, if the injured person can prove that the property owner was negligent. Of course, the property owner will likely attempt to avoid liability in a South Carolina injury accident if at all possible.

Evidence can be subject to spoliation in any lawsuit, but this is especially so in premises liability cases. This can make proving liability more difficult later on. (If you find yourself injured after a slip and fall in at a business, even a quick cellphone picture of the scene taken by you or a friend may prove useful later on.)

If you have been hurt on another’s property, it is important to talk to an attorney as soon as possible regarding your potential claim. Gathering evidence sooner, rather than later, can make recovery of fair compensation much more likely.

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When a loved one’s death is caused by another’s negligence or wrongful death, a South Carolina wrongful death lawsuit is a possibility for those left behind.

Unfortunately, proving a wrongful death claim against the defendant may be only a part of the process of the decedent’s family receiving fair monetary compensation.

In some cases, obtaining a payout from the defendant’s insurance company may be as problematic as obtaining the verdict or judgment against the defendant.

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