Filing a Medical Malpractice Claim on Behalf of the Injured Party Incapacitated/disabled adults generally cannot file their own legal claims, which is why their guardian or designated power of attorney needs to act on their behalf to recover damages when they are the victim of medical malpractice. Guardian vs. Power of Attorney A guardian ad…
Policing Police Departments The internal affairs (IA) division of a law enforcement agency is an in-house investigative agency. The IA investigates allegations of misuse of public office, use of force by officers, accusations of criminal wrongdoing by law enforcement officers, and violations of agency policy. In other words, the IA’s role is to investigate and find…
What is informed consent? Mostly all surgeries and procedures come with some type potential risk. For example, when having a hernia repair surgery, there is the possibility of permanent nerve damage that may cause pain and discomfort post operation. Informed consent is simply being aware of all potential and known risks associated with a surgery…
Rideshare accident liability and insurance protection In our ever growing and advancing society, it appears that companies such as Uber and Lyft have taken over traditional cab services. So, what exactly is Uber and Lyft? Uber and Lyft are ridesharing services that arrange shared rides on very short notice, through a smartphone app. https://rideshareapps.com/ride-sharing-companies/. Are…
Fetus Found on American Airlines Plane It seems standard for a cleaning crew at an airport to discover unusual things once a plane is pulled into a hangar for cleaning and prep for the next flight. Items that may be expected to be discovered include be bags, money, credit cards, hygiene products and maybe even…
Subrogation Rights & Liens Did you know that the federal and state government, as well as health insurance companies and hospitals, may have the right to assert a lien against any personal injury settlement you may receive? The insurance company has the right to be reimbursed for any money they paid on your behalf when…
Understaffed Nursing Homes Nursing homes are notoriously understaffed. Studies have shown that residents who live in understaffed nursing homes are at a greater risk of malnutrition, weight loss, bedsores, dehydration, infections, and pneumonia. Furthermore, as the patient to staff ratio increases, neglect and abuse occur more frequently. The neglect and abuse suffered by patients can…
Man’s Best Friend Most of us have seen service dogs at one time or another assisting the blind, or individuals with other disabilities. There are approximately 500,000 service dogs in the Unites States assisting the disabled so that they can live independently and manage the challenges of everyday life. shareamerica.org. Under the Americans with Disabilities…
Medical Malpractice in the Emergency Room More than one hundred thirty-six million (136.9) people visit hospital emergency rooms in the United States each year. The number of injury-related visits: 39.0 million; number of visits per 100 persons: 43.3; number of emergency department (ED) visits resulting in hospital admission: 12.3 million; number of ED visits resulting…
Filing a Personal Injury Claim: Step-by-Step Suffering a personal injury can be devastating regardless of the severity of your physical and emotional injuries. Hiring an attorney to help you recover for your losses is the first step to getting your life back, to the extent you can, and move forward. To that end, it can…
Gallbladder Removal: A Routine Surgery Gone Bad The gallbladder is a pear-shaped organ located under the liver on the right side of your abdomen. The function of this organ is to store bile, which contains bile acids that are vital for the digestion and absorption of fats and fat-soluble vitamins in the small intestine. One…
Maternal-Fetal Infections Perinatal infections account for 2%-3% of all congenital anomalies. Some common maternal infections, such as the flu, the common cold, or a stomach virus, will most likely not have any impact on the pregnancy, but there are a few maternal-fetal infections which can result in serious health consequences for your unborn child (NIH).…
Is Debtor’s Prison Making a Comeback? It is unconstitutional to impose a fine as a sentence and then automatically convert it into “a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” Tate v. Short, 401 U.S. 395 (1971). Tate was an indigent man convicted of traffic offenses…
Is a Hospital Liable for a Doctor’s Medical Malpractice? If you have ever been to a hospital for a procedure—or an emergency room visit? If the answer is yes, then you know the bills come in quickly and usually from more than one medical provider. For example, you go to your local emergency room for…
North Carolina’s Disclosure of Body Cam Footage Laws Transparency in law enforcement is at the forefront of public policy issues now more than ever. Disclosing body cam footage worn by law enforcement is at the center of it all. Does the government’s need to closely guard the use of force and the conduct of its…
Carbon Monoxide: The Silent Killer Carbon monoxide (CO) is a toxic flammable gas which is formed by the incomplete combustion of carbon. Incomplete combustion occurs when there is not enough oxygen for the fuel to react completely to produce carbon dioxide and water. Instead, the carbon releases soot, unlike carbon monoxide, which releases an odorless,…
Medical Care: A Crisis in America According to recent studies, among all physicians, obstetricians/gynecologists and surgeons are most likely to be the subject of a medical malpractice claim. Psychiatrists and pediatricians are least likely to be sued, while primary care physicians fall somewhere in between. Inpatient care accounted for 48% of paid medical malpractice claims,…
The Eggshell Plaintiff: Taking the Victim as you Find Him If you are injured in an accident and you were already suffering from a medical condition or an injury from a previous incident, you may have a bit of a fight on your hands when it comes to collecting for the damages you sustained. You…
When is Failure to Timely Diagnose and Treat a Stroke Medical Malpractice? What is a stroke? When the blood supply to part of your brain is cut-off, or restricted, the brain tissue is deprived of oxygen and nutrients, and as a result, the brain cells begin to die. This occurs rapidly, within minutes. A stoke…
Workplace Sexual Harassment and What You Should Know Sexual Harassment Sexual harassment is a hot topic in today’s headlines. Hollywood’s elite, politicians, athletes, journalists, musicians, and sports figures alike are under fire amid allegations of inappropriate behavior and unwanted sexual conduct. These are public figures so their salacious behavior makes the news. Sexual harassment doesn’t…
Jury Selection Process in Criminal Trials The United States Constitution (6th & 14th Amendments) guarantees a right to a trial by a jury of your peers in criminal prosecutions. The jury is charged with finding the facts of the case after reviewing the evidence and then decides if the defendant is guilty or not. Prospective…
Medical Records and Your Rights Following a car accident or some other personal injury action an individual will eventually find themselves being treated for their injuries. In order to substantiate your injuries and pursue your case, your lawyer needs to obtain a copy of your medical records. The process is relatively simple—we will send a…
Hospital Acquired Infections A hospital is where you go to get better, but did you know it is also a hot bed for infections. Hospital Acquired Infections (HAI) are one of the leading causes of patient deaths in the United States. According to the Centers for Disease Control, 1.7 million patients will get a HAI…
When Should You Settle Your Personal Injury Case? Following a car accident, slip and fall or some other event, eventually the claimant will be confronted with the possibility of settling their case. A settlement can take anywhere from a few weeks up to a few years depending on the injury. There are many moving parts in…
What is a Tort? A tort is an act or omission (breach of duty), whether intentional or accidental, which gives rise to an injury or harm to another. The injured party can recover economic and non-economic damages in a lawsuit against the person (tortfeasor) who caused the harm or loss. Torts include, among other things, motor…
Fourth Amendment Rights The Fourth Amendment of the U.S. Constitution provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.…
Whiplash, Fact or Fiction? Whiplash is very real, and it can be painful and debilitating. Whiplash is a soft tissue injury to the neck (cervical spine) caused by a sudden motion, usually by force, which causes movement beyond the normal range of motion. It strains or tears the neck muscles and it is commonly sustained…
Medical Malpractice and Its Staggering Statistics What do heart disease, cancer, infections, medical malpractice, and accidents have in common? If you answered causes of death you are correct. It wasn’t that difficult to figure out, right? If I asked you to list the top three causes of death in the United States, what would your…
Nursing Home Neglect & Abuse According to the Stanford School of Medicine, 20% of Americans die in acute care hospitals and 20% die in nursing homes. The Centers for Disease Control (CDC) reported that there were 15,600 nursing homes deaths in 2014. More than three years later, we can presume those numbers are on the…
Distinction Between DUI and DWI DUI designates driving under the influence, while DWI refers to driving while intoxicated. However, North Carolina’s Safe Roads Act of 1983 repealed previous laws on drunk driving and placed all drug and alcohol related driving laws under a single offense, which is driving while impaired (DWI). BAC Blood alcohol concentration—or…
Social Media There is a plethora of information, among other things, on the world wide web, including the popular and ever growing phenomenon of social media, such as, to name a few, Facebook, Twitter, YouTube, Snapchat, Instagram, Pinterest, and Google. According to a 2014 survey by Pew Research Center, 74% of adults frequently use social…
As unfortunate as it may be, people die every day. Some die of illnesses, health complications, unforeseen occurrence such as accidents, and others die from the hands of others, which is murder. Many times we see on the news how people have been murdered and the killer has been identified, yet charges end up getting…
Have you ever been driving on the highway and suddenly something flies into your windshield? Or better yet, when a tire from another vehicle suddenly blows and comes into your traveling path? The feeling can be very scary, even when something soft and non-damaging hits your windshield such as a stray plastic bag that came…
In life there are certain occasions that most people look forward to such as graduation, landing your first career, getting married, and starting a family. However, sometimes things don’t go as planned due to no fault of your own. Finding out that you are expecting a child is one of the greatest feelings in the…
Have you ever had a conversation with someone and later down the line, they denied something that they said? Or has there ever been a situation where you were not able to be present during a conversation or event, but you wanted to know what was said, which some refer to as being “a fly…
It seems like every day when you turn on the news, or pick up a newspaper, there is some type of violence going on and someone or multiple people who have been killed by a gun. Although scary, the thought of randomly being gunned down while in a public location may cross the minds of…
Have you ever heard the saying, “bad things happened to good people?” Well unfortunately the saying is very true. In fact, bad things happen to bad people also, but it doesn’t necessarily make it right. There are many instances where there has been a mistake by a doctor or a healthcare professional where it appears…
Going to the doctor naturally causes many people to feel uneasy. Whether you are sick or if you are simply going for an annual or semi-annual preventative care visit, many people are uneasy because of various reasons such as being afraid of getting shots or having blood work done, afraid of procedures that are done…
It is no secret about all the controversy that has been going on within the past months surrounding the removal of confederate statutes. Under our Constitution, everyone is entitled to First Amendment freedoms. Everyone is entitled to have their own beliefs and what they believe in, and how they view historic events and structures that…
Years ago, many older homes and apartment buildings contained lead-based paint. However, lead paint is very toxic and hazardous to humans, especially younger children. Typically, one can detect lead-based paint if chipping, flaking or peeling paint is observed. Lead can be ingested by small children by them eating paint chips and/or touching lead based paint…
Have you found yourself injured while on the job? Well, you may be wondering what to do now. Hopefully, you informed your employer and were treated immediately by your physician or went to an emergency room. If not, that may be a big mistake. Workers’ compensation claim can be difficult and stressful to deal with,…
Wearing a seatbelt can be annoying, but we must remember that it can save your life. Also, it is important to think about all the possibilities that could result if you make the decision to not wear a seatbelt. Moreover, it is just as important to wear a seatbelt properly as it is to generally…
Workers’ Compensation Best Practices Have you found yourself injured while on the job? Well, you may be wondering what to do now. Hopefully, you informed your employer and were treated immediately by your physician or went to an emergency room. If not, that may be a big mistake. Workers’ compensation claim can be difficult and…
Seatbelt 101 in North Carolina As annoying at seatbelts can sometimes be, there are consequences associated with failing to wear your seatbelt. Consequences can range from monetary penalties if you’re stopped by the police, serious bodily injuries if you are involved in a collision, or even death. It is likely that at some point in…
What is clemency? Clemency is when an executive member of the government extends mercy to an individual who has been convicted. Clemency is granted by the governor for state crimes and by the president for federal crimes. Clemency is a general term for reducing penalties and does not clear an offender’s record. Therefore, if the…
As you likely know from registering your car with the Department of Motor Vehicles (DMV), North Carolina law requires that every vehicle maintain continuous liability coverage. The minimum coverage requirements are $30,000 bodily injury coverage for each person, $60,000 total bodily injury for all persons involved in an accident and $25,000 for property damage. In…
In tort law, strict liability is when liability is imposed on a defendant without the finding of fault, which is typically required. The only thing that the plaintiff is required to prove is that a tort occurred and that the defendant is responsible for the occurrence of the tort. Strict liability most commonly occurs when…
Technology is the new way that people communicate with one another. Today people take pictures and videos of themselves and others and share them for the viewing pleasure of their virtual followers. However, there have been negative instances where pictures have been shared publicly without the consent of someone in the picture. With text messages…
As mentioned in another informative article, there are multiple damages that may be available to a plaintiff and/or an immediate family member of an injured plaintiff. Negligent infliction of emotional distress (NIED) is a claim that an immediate family member of an injured plaintiff may bring against a defendant. Usually, for a successful NIED claim…
When you are injured, it is usually expected that you will either receive a settlement from the at fault party, the insurance company of the person or entity who is at fault or that you will win a civil lawsuit for damages and injuries. However, most people only focus on getting compensated, but don’t truly…
One of the most inconvenient things that you may ever encounter in your life is a hit and run accident. Not only may you be injured, but your vehicle may require repairs. Even if the repairs are considered minor, more than likely you will still have to come out of pocket and pay your deductible…
Medical malpractice is something that unfortunately seems to occur more often than it should in hospitals and doctors’ offices and other healthcare facilities. Although ultimately it is negligence on behalf of a healthcare facility or health professional, having a successful medical malpractice claim is not as easy as many assume. First, it must be proved…
In order to be entitled to the defense of entrapment, the defendant must show evidence of: (1) acts of persuasion, trickery, or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime, and (2) the criminal design originated in the minds of the government officials, rather than…
Under the Fourth Amendment of the Constitution, each person has the right to be “secure in their persons, house, paper, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the…
It may seem like common sense when thinking about what happens to a personal injury settlement when a married couple separates and files for a divorce. Your initial thought may be that its marital property and you may have reached that conclusion for a variety of reasons. However, it is not quite that simple.…
Understanding Worker’s Compensation Many times when you get a new job, you may be excited about the new position and possibly the benefits package that comes along with the new position. However, many people likely do not inquire if their new employer has workers’ compensation insurance and assume that if they are injured while on…
Arbitration agreements are very common. More than likely, you have signed an arbitration agreement at some point in your life. Whether it was a requirement after accepting an employment offer or included in your contract with your cell phone or cable provider. Many people overlook arbitration agreements because they are contained in lengthy contracts and/…
Generally, when an insurance company denies an insured policy benefits, the insured may be entitled to compensatory and/ or punitive damages depending on the circumstances warranting the denial. There is an abundance of cases that demonstrate damages that may be available to a beneficiary after benefits have been denied. Without a legitimate reason for denying…
The relationship that a client has with his client is one of the most important relationships that one will have in his life. Most importantly, the relationship is built upon trust. Even when an attorney is representing a client with criminal charges, and the client is hesitant to reveal all details to his attorney initially,…
Contributory negligence has many different layers, and should be understood so that one will not find himself contributorily negligent when an unfortunate circumstance occurs. North Carolina is one of the few jurisdictions that still adheres to the contributory negligence doctrine. To be clear, contributory negligence bars a plaintiff or claimant from recovering from a defendant…
Do you have a pool, trampoline, piles of junk, a construction site, etc on your land? If so, you should be cautious of areas on your property that may attract children, because if they hurt themselves while trespassing, you may be liable. In North Carolina, a landowner and/ or occupier will be liable for harm…
Memorandum In Re: ERISA and Subrogation in North Carolina North Carolina personal injury law is complex. Not only do plaintiffs have to deal with the laws of negligence (premises liability, motor vehicle, medical malpractice) you have to deal with HIPPA, Medicare, Medicaid, as well as the state and federal laws dealing with health insurance Subrogation,…
Our personal injury lawyers have handled numerous cases, which have been denied by the insurance company, when the plaintiff was intoxicated. Many insurance adjusters assert, incorrectly, that intoxication, standing alone, is evidence of contributory negligence. However, intoxication alone is not grounds for a jury instruction of contributory negligence if it is not a proximate cause…
Although expert testimony can touch on ultimate issues of fact, see N.C. Gen. Stat. § 8C-1, Rule 704, experts cannot testify on ultimate issues of law: [A]n expert may not testify that a particular legal conclusion or standard has or has not been met, at least where the standard is a legal term of art…
Losing someone you love is by far one of the most devastating, if not the most devastating occurrence that could happen in any person’s life. At Rosensteel, Fleishman, PLLC, our mission is to help family members find and hold accountable those persons who caused the death of their loved ones and for the ongoing grief…
Following a bad car accident, which results in serious injuries, eventually someone is going to pose the question regarding who is going to pay for the medical treatment. Initially, money is the furthest thing from peoples’ minds following an accident but sometime after the ambulance, the emergency room and meetings with doctors, reality hits regarding…
“What is the value of my case?” Eventually, during every initial meeting following a car accident this question is raised by the prospective client. You can’t turn on the television or click on the website of a personal injury lawyer without someone saying they can tell you the value of your case. The fact of…
TRAFFIC VIOLATIONS From time to time we are all faced with challenges that we are not expecting. Being on the receiving end of a traffic violation ticket in North Carolina is no exception. If you find yourself in need of an experienced attorney to handle your traffic violation offense, then look to the highly…
There is an old saying among personal injury lawyers that where you get hurt is just as important as how you get hurt. In other words getting hurt in a car accident in New York City, all things being equal, will result a higher settlement offer compared to getting hurt in a car accident in…
You can’t turn on the television or radio today without someone discussing the incident at the Cincinnati zoo wherein a child fell into the gorilla enclosure resulting the death of Harambe the gorilla. This article does not discuss or take a position of the ethical issues regarding the decision to shoot the gorilla. However, this…
In previous articles I have written about the law of North Carolina personal injury damages. To recap, historically when someone was injured in a personal injury in North Carolina (car accident, slip and fall, wrongful death) and they incurred medical expenses for the treatment of their injuries, the at-fault (liability) insurance company was responsible for…
The Court of Appeals issued an opinion today which involved the issue of retrograde extrapolation and expert testimony. The court applied the Daubert standard for expert testimony under the amended Rule 702. However, its conclusion in allowing the expert testimony did not differ significantly from the standard previously used under Howerton. In State v. Turbyfill,…
Earlier this month, the North Carolina Court of Appeals issued an unpublished opinion in an automobile accident case involving the issue of medical causation. Fields v. Fields involved a plaintiff who sued on her own behalf and as administrator of the estate of her deceased husband. The husband was injured in an automobile accident which…
In July, a Florida appeals court upheld a 2013 law which requires medical malpractice plaintiffs to authorize ex parte communications between the health care provider’s lawyer and the plaintiff’s other doctors who are not parties to the lawsuit. Last week, attorneys challenging the law filed a notice of appeal to the state supreme court. Ex…
A Mothers Against Drunk Driving activist in Asheville is advocating for harsher penalties for those convicted of DWI while driving with a child in their car. Although people who are charged with impaired driving while driving with a child in their car are also often charged with misdemeanor child abuse, the activist argues that this…
Fourteen people were arrested for impaired driving at a checkpoint in Raleigh this weekend. The checkpoint was held from 11 p.m. Friday night until 2 a.m. Saturday morning. In addition to the 14 arrests for DWI, there were also 4 driving-while-license revoked charges, 2 other traffic charges, 5 drug charges, and 2 DWI-related vehicle seizures.…
Last month, a Florida appeals court upheld a Florida law which requires medical malpractice plaintiffs to authorize ex parte communications between the health care provider’s lawyer and the plaintiff’s other doctors who are not parties to the lawsuit. To protect health care providers against frivolous lawsuits, many states have enacted some sort of tort reform…
Last month, the Raleigh News & Observer saw a battle of editorials relating to the bills in the North Carolina General Assembly that would require all people convicted of DWI to use an ignition interlock for a period of time. An editorial on July 23rd by the News & Observer Editorial Board argued for the…
An accident yesterday left two drivers injured after a car struck a feed truck in Union County. The driver of the car hit the feed truck after going through a stop sign. Both drivers were injured in the accident, although the driver of the feed truck suffered only minor injuries. Unfortunately, the driver of the…
Today, the North Carolina Court of Appeals issued an opinion today which examined the extension of a traffic stop to conduct a dog sniff in a post-Rodriguez world. Prior to the U.S. Supreme Court’s issuing of Rodriguez v. United States in April of this year, the officer would have been able to use a de…
On Friday, a jury found a Raleigh couple not guilty of aiding and abetting underage drinking, which led to a fatal car accident. The couple was hosting their daughter’s wedding at their house. Their son invited some of his friends to celebrate with the wedding guests. One of these friends left the house later that…
Usually when we think of newsworthy medical malpractice cases, we think of patients who suffer serious physical injuries to their bodies, like a patient whose doctor left a sponge in his body after surgery or a patient whose left, instead of right, leg was operated on. Last month in Virginia, however, a man was awarded…
The Charlotte Observer reported last week about a rather unusual encounter with a man who was arrested for impaired driving. The York police found the man trapped in his truck after he was involved in an accident on Friday night. Emergency responders had to force the doors of truck open to get the man out…
The Charlotte Observer reports that a law enforcement campaign over the Fourth of July weekend resulted in the arrest of 42 impaired drivers in a nine-county area around and including Mecklenburg County. There were also many citations issued for driver’s license violations, seat belt violations, and registration violations. During this campaign, more than 400 drivers…
The Fourth of July is a time for celebration. Many people celebrate with fireworks. In this area, people also celebrate by spending time on the water in their boats, and it is not unheard of to also celebrate with alcohol. Unfortunately, mixing boating and alcohol can be not only illegal, but also dangerous. The Charlotte…
The Charlotte Observer reports that there are bills in the North Carolina General Assembly that would require all people convicted of DWI to use an ignition interlock for a period of time. An ignition interlock device has been described by the North Carolina Court of Appeals as a device which requires a driver to pass…
In New York last week, a bill called Lavern’s Law died in committee. The bill had been passed by the assembly and was approved by the governor. However, the majority leader in the house refused to bring the bill to the floor for a vote. Named after Lavern Wilkinson, a woman who died as a…
In the 2014 case State v. Smathers, the North Carolina Court of Appeals formally recognized the community caretaker doctrine as a basis for making a traffic stop without reasonable suspicion. Prior to that, the community caretaker doctrine was used only in the context of impounding abandoned vehicles in North Carolina. With the Smathers decision, North…
Yesterday, a train hit a car on Thermal Road, near Monroe Road. No one is believed to be injured in the accident, and, in fact, no one was in the car when the police arrived to investigate the accident. The police believe the driver of the car “took off.” The collision caused the car to…
A man was found guilty last week of involuntary manslaughter in connection with an accident that occurred in 2013 as a result of the man racing another man on Highway 51 in Pineville. During the racing, the other man lost control of his car and it struck the car of a third person who died…
The Charlotte Observer reports that a woman was arrested early Sunday morning for impaired driving, as well as other charges, after being involved in a car accident which killed her 3-year-old son. Shortly after midnight on Sunday morning, the woman was traveling south on Billy Graham Parkway when she drove off the left side of…
The North Carolina Supreme Court recently affirmed an appeal from the court of appeals in a case which involves a common traffic scenario. Car #1 approaches wants to turn left at an intersection with a traffic signal but no left turn signal. It enters the intersection and comes to a complete stop waiting for a…
WSOC-TV reports that a woman who caused a fatal accident in northwest Charlotte has admitted to texting and driving prior to the accident. The accident occurred on Mount Holly Road just before midnight on Sunday night. In addition to the admission of texting and driving, police also found various drugs on the woman following the…
When a person refuses a breath test after being arrested for DWI in North Carolina, his driver’s license is automatically revoked for one year. The defendant can contest this revocation in an administrative proceeding (separate from the criminal trial for impaired driving) with the DMV. G.S. 20-16.2(d) provides that the hearing is limited to the…
The North Carolina Court of Appeals issued an opinion today that held that a voluntary encounter became a seizure for purposes of the Fourth Amendment when the police officer took the defendant’s driver’s license to the police car to run a check on it. The trial court in State v. Leak had held that any…
The Washington Post reports that Tracy Morgan settled with Walmart in connection with his suit filed after being injured in an accident with a Walmart truck driver almost a year ago. Last June, Morgan and several others were travelling in a limo bus on the New Jersey Turnpike when the limo bus was rear-ended by…
Last week, a longtime Oscar director, Marty Pasetta, was killed in what has been called a bizarre car accident. The driver of the car had stopped to let Mr. Pasetta and another passenger exit the vehicle. The driver then got out of the car while the car was still in drive, and the car hit…
A study out of Michigan was released today and showed that the use of ignition interlock helps to reduce drunk driving. The North Carolina Court of Appeals has described the ignition interlock device as requiring a driver to pass an alcohol test by blowing into the device. The results are then recorded as logged events. If…
One argument raised against changing from a contributory negligence standard to a comparative negligence standard is the increased liability costs. A defendant in a negligence action might raise the defense that the plaintiff was either contributorily or comparatively negligent. North Carolina is one of a handful of states which still employs the doctrine of contributory…
The Charlotte Observer reports that officers of the Wildlife Resources Commission and the State Highway Patrol announced the “On the Road, On the Water, Don’t Drink and Drive Campaign” today. As the weather warms, not only are more boaters expected, but more motorists are expected as well. According to the commander of the State Highway…
Recently, a study examined the prevalence of nondisclosure clauses in medical malpractice settlement agreements involving physicians at the University of Texas and the effect of tort reform legislation on the language in those clauses. The study looked at settlement agreements before and after tort reform in Texas, spanning a time period of about ten years.…
Today, the governor of Missouri signed a bill creating legislation which will reinstate a cap on non-economic damages in medical malpractice claims. The legislation will cap non-economic damages at $400,000 in most cases, but will allow for a $700,000 cap in cases of “catastrophic” injuries (such as paralysis, loss of vision and brain injuries) and…
The Charlotte Observer reports that last week’s “crossover” deadline killed hundreds of North Carolina bills filed this year. The “crossover” deadline requires that all non-budget bills must have passed either the House or the Senate to be considered by the other chamber during the remainder of the legislative session. Although hundreds of bills were killed…
The Charlotte Observer reports that alcohol was a factor in a deadly boating accident on Lake Norman early this morning. The driver of the boat was killed when the boat hit a dock, causing him to be ejected from the boat. Two other passengers in the boat suffered minor scrapes and bruises but were not…
Earlier this week, the U.S. Supreme Court issued an opinion in the case of Rodriguez v. United States and held that, without reasonable suspicion, a police officer may not extend a traffic stop for crime-related purposes beyond what is reasonably required to complete the traffic-related purposes of the stop, even for a de minimis amount…
Today, the United States Supreme Court issued its opinion in the case Rodriguez v. United States and held that, without reasonable suspicion, a police officer may not extend a traffic stop for crime-related purposes beyond what is reasonably required to complete the traffic-related purposes of the stop, even for a de minimis amount of time.…
Early this morning, a car traveling at an estimated 100 miles per hour rear-ended a tractor-trailer on I-77. The collision occurred around 1:45 a.m. and with such force that the car was pinned under the back of the tractor-trailer as a result. The driver of the tractor-trailer did not realize that there had been accident…
Last Friday, a state district judge in Texas ruled that an injury sustained by a plaintiff in a car accident involving a retired doctor’s cows in the road did not constitute medical malpractice. The accident occurred when the car the plaintiff was traveling in hit several of the loose cows. The plaintiff claims to have…
A mother in New Burn, North Carolina has been charged with DWI after being involved in an accident on Sunday which killed her 9-year-old daughter. The accident occurred around 11:30 a.m. in New Burn after the mother ran off the road, then returned to the road, and crossed the center line into the path of…
The Charlotte Observer and WBTV report that a pedestrian was severely injured after walking into the path of an oncoming car early this morning in Gastonia. Around 3:15 a.m., the pedestrian reportedly walked into the travel lanes of East Long Street, at the intersection of North Broad Street, and was struck by a car. The…
The North Carolina Court of Appeals issued an opinion yesterday in a case involving the search-incident-to-arrest exception after the defendant was stopped on suspicion of an open container violation. In State v. Fizovic, the court held that the search was justified, although it took place prior the defendant’s arrest, because it was reasonable for the…
WSOC-TV reports that a woman was killed on Saturday night in Gaston County after a 17-year-old driver fell asleep while driving, according to officials. The woman was driving home with her three daughters when the car driven by the 17-year-old crossed the center line and collided head-on with the woman’s car. Two of the daughters…
Earlier this week, Gerald McRath, a graduate assistant football coach at the University of North Carolina, was arrested in Durham for DWI. According to news reports, McRath was charged with DWI after Durham police found him early Monday morning in an idling car stopped on a service road. The police spokesperson said that McRath appeared…
The Charlotte Observer reports that a driver was charged yesterday in an accident which occurred Saturday night and resulted in the death of a moped rider. Shortly after 8:00 p.m. on Saturday night, a man was riding his moped on South Boulevard. He stopped his moped, while waiting to turn into a shopping center. While…
Last weekend, North Carolina released the numbers from its most recent Booze It and Lose It campaign, which was held from March 13 through March 17 and meant to encourage those out celebrating St. Patrick’s Day to do so safely. The numbers of DWIs in both the whole state and in Mecklenburg County were down…
In 2011, the North Carolina legislature enacted tort reform for medical malpractice liability. Part of this tort reform limited the amount of damages a plaintiff can receive for noneconomic damages to $500,000. The tort reform doesn’t limit the amount that a plaintiff can receive for actual damages such as medical bills but it limits the…
The North Carolina Court of Appeals issued an opinion earlier this week which shed further light on the multiple claimant exception and the stacking of UIM policies. In Integon National Insurance Co. v. Maurizzio, the court held that “the multiple claimant exception is not triggered simply because there were two injuries in an accident” but…
Yesterday, the North Carolina Court of Appeals issued an opinion in the case State v. Wainwright, which involved the issue of using an observation of weaving as reasonable suspicion for a traffic stop in a DWI case. The court held that the officer who made the stop had reasonable suspicion to stop the defendant after…
WSOC-TV and the Charlotte Observer report that a man trying to catch a bus in uptown Charlotte was injured when he tripped and fell and the bus ran over his arm. Around 10:45 p.m. on Saturday night near a bus stop on East Trade Street, the man was running alongside the bus and banging on…
Last month, WSOC-TV did an investigation piece on the use of confidentiality agreements in medical malpractice cases. The piece highlighted the case of a woman who underwent a partial hysterectomy in Elkin, North Carolina 20 years ago. During that surgery, a surgical sponge was left in her body. The woman knew something was wrong, but…
A Charlotte Mecklenburg Police Department officer was minorly injured in a car accident tonight. According to authorities, the police officer was on duty and driving an unmarked police car on the Billy Graham Parkway just after 7:30 p.m. when another vehicle drove across the median and hit the driver’s side door. The police officer was…
Today, the North Carolina Court of Appeals issued an opinion in the case State v. McDonald which set out the appropriate framework under which to determine the constitutionality of a checkpoint. The court determined that the trial court did not conduct the necessary analysis and remanded the case for appropriate findings. On March 11, 2010,…
The Charlotte Observer reports that a man involved in a “fiery head-on wreck” earlier this month had consumed up to 20 beers before getting into his car prior to the collision. On February 7, the man’s Suburban crossed the median and collided head-on with a pickup truck. The Suburban burst into flames as a result…
A person charged with a DWI who was driving with a child in the car at the time of the violation faces a significantly more serious punishment than he would have if the child had not been in the car. After a person is convicted of DWI in North Carolina, his sentence is determined based…
Two Charlotte-area residents have died in recent months as the result of a superbug known as carbapenem-resistant Enterobacteriaceae, or CRE. Carolinas HealthCare Systems has reported 18 cases, three of which were contracted during hospital stays. CRE is a virus which is highly resistant to antibiotics, and it has appeared in all but three states. CRE…
Periodically, the cases of individuals are highlighted to demonstrate the difficulties which sometimes arise as a result of the non-economic damages cap which exist in many states. Just last month, the case of a South Dakota woman was written about for this reason. The woman went to the hospital to undergo a procedure which would…
A Florida attorney has been receiving some press recently because of a flyer he designed. The flyer is intended for people to hold up in their windows as they pass through DWI checkpoints. Its message states “I Remain Silent; No Searches; I Want My Lawyer” and contains specific citations to relevant state law. The Florida…
Typically, car accidents result in filing a claim under one or more auto insurance policies. Sometimes, the policy coverage of the person at fault in the accident does not cover all of the damages. In this case, you might be able to collect additionally under your own underinsured motorist coverage. This was the scenario in…
Since the US Supreme Court issued its opinion in the case Missouri v. McNeely in 2013, there has been discussion about how its application will affect states’ implied consent laws. The Fourth Amendment protects us against unreasonable searches and seizures and a breath test or a blood test is considered a search. Warrantless searches are…
Bruce Jenner, former Olympic athlete turned reality TV star, was involved in a fatal car accident over the weekend. The details of the accident are still being investigated, but CNN.com reports that the accident occurred shortly after noon on Saturday. The chain of events began when a Toyota Prius suddenly slowed down or stopped, which…
WSOC-TV recently investigated repeat drunk drivers who remain on the roads and the effectiveness of legislation passed in 2011 known as Laura’s Law. Laura’s Law was named after a 17-year-old girl from Gastonia who was killed in a car accident with a drunk driver. The drunk driver had three prior convictions for DWI. Laura’s Law…
The North Carolina Court of Appeals issued an opinion this morning which it stated served “as a reminder that, unless our Supreme Court holds otherwise, the Fourth Amendment’s exclusionary rule does not apply in civil proceedings such as driver’s license revocation hearings, even if those proceedings could be viewed as quasi-criminal in nature.” In Combs…
On Wednesday, we looked at last weekend’s fatal accident which involved unexpected black ice on I-85. Yesterday, the Charlotte Observer reported that inspectors are studying the portion of I-85 on which the accident occurred. The man who died in Sunday’s early morning accident was not the only one who encountered the unexpected ice that morning.…
The Charlotte Observer reported that black ice was a factor in a fatal accident on I-85 last weekend. Early Sunday morning, around 2:30 a.m., a man was driving on I-85 in Gaston County. Troopers believe that after hitting black ice, the man lost control of his car and ran off the road. The car then…
The Fourth Amendment protects people from unreasonable searches and seizures. Traffic stops are considered seizures under the Fourth Amendment and require that the officer making the stop has reasonable suspicion of criminal activity. In certain instances, a driver’s evasive actions can support an officer’s reasonable suspicion. However, for a driver’s actions to be considered evasive,…
Yesterday, the U.S. Supreme Court heard oral arguments in Rodriguez v. United States, the case from the 8th Circuit that involved the issue of whether a police officer could cause a de minimis delay for a dog sniff in an already completed traffic stop. The defendant was stopped by the officer and issued a warning…
A DWI arrest all starts with a traffic stop. But an officer does not have unlimited discretion as to who he may stop. The Fourth Amendment protects us against unreasonable searches and seizures and requires that an officer must have “reasonable suspicion” that the driver has committed a crime or infraction to make a traffic…
The oral arguments in Rodriguez v. United States are scheduled for next Wednesday. Rodriguez is a case from the 8th Circuit involving the extension of a traffic stop for 7-8 minutes to conduct a dog sniff after issuing a warning. The 8th Circuit held that this extension was a de minimis delay. But other states…
It’s that time of year when winter weather can appear in our usually mild Charlotte. WSOC-TV forecasts a drop in temperatures over the course of the day, with temperatures falling below freezing overnight. With the light drizzle occurring today, along with forecasted freezing rain for early Wednesday morning, this weather might make for some difficult…
Yesterday, the Supreme Court of Connecticut ruled that the state could require a 17-year-old girl named Cassandra to continue chemotherapy treatment. Cassandra was diagnosed in September with a type of cancer called Hodgkin’s lymphoma. Experts in Cassandra’s case gave her a life expectancy of two years if she did not receive treatment but estimated her…
In North Carolina, a defendant who attempts to introduce evidence of money received by an injured plaintiff from a source collateral to the defendant violates the collateral source rule. The North Carolina Supreme Court has explained that the collateral source rule requires that a plaintiff’s recovery may not be reduced because a source collateral to…
Over the years, many groups and people have attempted to reduce the problem of drunk driving, especially among young people. A defense attorney in Colorado Springs, Colorado recently proposed a new effort to reduce drunk driving among high school students. The attorney announced an essay contest (the First Step Scholarship), the winner of which will…
Just as in other negligence-based torts, a patient’s contributory negligence can bar him from recovering damages in a medical malpractice claim in North Carolina. When North Carolina courts have examined the issue of contributory negligence in a medical malpractice claim, they have held that the patient’s negligence must join with the negligence of the health…
The North Carolina Court of Appeals ended 2014 by issuing a number of opinions last Wednesday. Among them was Wright v. Wakemed, which involved a medical malpractice claim not certified pursuant to Rule 9(j). The plaintiff argued that the doctrine of res ipsa loquitur applied and the Rule 9(j) certification was unnecessary. The court of…
The North Carolina Court of Appeals capped off 2014 by issuing a number of opinions. Among them was State v. Sisk, which involved a defendant convicted of habitual impaired driving and challenging the admissibility of his blood test results. In Sisk, the defendant was driving a motor home around 5:10 p.m. A trooper on patrol…
Yesterday’s post discussed the underage buying sting being conducted by the Cary police on New Year’s Eve. That post focused on the liability of the sellers of the alcohol. However, underage buyers of alcohol also face consequences. G.S. 18B-302(b) states that Purchase, Possession, or Consumption. – It shall be unlawful for: (1) A person less…
The Raleigh News & Observer reports that police in Cary are making well-known their plans to operate a New Year’s Eve sting targeting people selling alcohol to underage customers. Called Operation Blackjack, the sting uses high school volunteers who team with police officers and test whether sellers of alcoholic beverages are checking the buyers’ identifications.…
On Friday, we discussed the Christmas day accident on I-85 involving a man who suffered a heart attack while driving. The man was driving his car on I-85 North when his car ran into the median barrier. After the accident, a good Samaritan woman found the man slumped over in his car. Because the doors…
The Charlotte Observer reports that a good Samaritan woman stopped and gave CPR to a man who was involved in a Christmas day car accident on I-85. The man was driving his car on I-85 North when his car ran into the median barrier. After the accident, the good Samaritan found the man slumped over…
After a person is convicted of DWI in North Carolina, his sentence is determined based upon the balancing of grossly aggravating factors, aggravating factors, and mitigating factors. North Carolina statute G.S. 20-179(c) states that “[a]t the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in…
Last Friday, the North Carolina Supreme Court issued an opinion in the case Lunsford v. Mills, in which it held that a party injured in a car accident where there is more than one at-fault driver is not required to exhaust liability policies of all of the at-fault drivers before collecting under his uninsured motorist…
Earlier this month, the North Carolina Court of Appeals issued an opinion in the case Mohr v. Matthews, which involved the issue of social host liability. In Mohr, the deceased was a 19-year-old man who attended a cookout at the home of his grandparents, the defendants. The father and stepmother of the deceased were also…
Last night, an 88-year-old man in Lenoir was killed while crossing the street to get to his mailbox. According to troopers, the man looked both ways before crossing the street and saw the car heading north on Hartland Road but did not see the car heading south. He walked directly into the path of the…
The North Carolina Court of Appeals issued an opinion in the case State v. Shaw yesterday which involved a defendant arrested for DWI. The court held that the officer who made the stop had reasonable suspicion to justify the stop based on statements from other officers that the defendant was weaving in her lane. Under…
Yesterday, the United States Supreme Court issued its opinion in Heien v. North Carolina, the broken brake light case from North Carolina that we have discussed in our posts a few times. In an 8-1 ruling (only Justice Sotomayor dissented), the Court held that because the officer’s mistake of law was reasonable, there was reasonable suspicion to…
Earlier this year, the North Carolina Court of Appeals held that Level Four sentences are not presumptive in the DWI case, State v. Geisslercrain. The defendant argued that the trial judge’s (instead of the jury’s) finding of an aggravating factor which led to the imposition of a Level Four sentence enhanced the defendant’s sentence beyond…
We have previously discussed the use of retrograde extrapolation in DWI cases in North Carolina. The North Carolina Supreme Court described retrograde extrapolation as follows: a mathematical analysis in which a known blood alcohol test result is used to determine what an individual’s blood alcohol level would have been at a specified earlier time. The…
We’ve discussed the North Carolina state crime lab backlog in previous posts. Because of the backlog, it takes longer and longer to receive the results of a blood draw in a DWI case, which might lead some prosecutors to proceed to trial before receiving the results. If there is sufficient evidence even without the blood…
Yesterday afternoon, around 12:30 p.m., a truck driven by the Carolina Panthers’ Cam Newton and another car collided, leaving Cam Newton with two fractures in his back. The accident occurred when Cam Newton was driving his truck south on Church Street. A driver of a sedan was headed west on Hill Street, and the car…
Last week, the North Carolina Court of Appeals issued an opinion in the case Wheeless v. Maria Parham Medical Center, Inc. As part of the opinion, the court held that the plaintiff could not bring a medical malpractice claim against the defendant because a physician-patient relationship did not exist. In Wheeless, the plaintiff was a…
Last night, in Florida, a black bear was involved in a car accident which killed three people. A woman driving an SUV hit the 300-pound black bear on a dark, remote road in the Everglades. A passing car with three people stopped to help the woman in the SUV. After the second car stopped to…
The past two days, we have discussed the North Carolina Court of Appeals opinion in the case State v. Roberts, issued Tuesday. But Roberts was not the only DWI case to come out of the court of appeals on Tuesday. In the case State v. Chavez, the defendant argued that he had a right to…
Yesterday’s post examined the gross impairment discussion in the North Carolina Court of Appeals’ opinion State v. Roberts, issued Tuesday. However, this was not the only argument raised by the defendant in Roberts. Today, we will look at the argument the defendant made regarding the failure of the trooper to meet the observation period requirement…
Yesterday, the North Carolina Court of Appeals issued an opinion in the case State v. Roberts, a DWI case which dealt, in part, with the aggravating sentencing factor of a blood alcohol content of 0.15 or more. The defendant argued that the statutory provision stating that the chemical results presented at trial are conclusively sufficient…
Yesterday, several new laws became effective in North Carolina. Among those new laws is a law that makes it easier to determine whether a person convicted of DWI will serve time in jail or in prison. The new law, S.L. 2014-100, applies to sentences for misdemeanor impaired driving which are imposed on or after January…
The Thanksgiving holiday weekend is over. For some people, holidays can be a stressful time due to family pressures and overindulging. One man’s overindulgence led to a whole other level of stress. WSOC-TV reports that, last night, a man who was driving a white van while drunk unsuccessfully turned left at an intersection and ran…
The Thanksgiving holiday is this week, and the Governor’s Highway Safety Program announced yesterday that during this increased travel time, it will be hold a “Click It or Ticket” program. AAA Carolinas estimates that 1.2 million people will travel the roads of North Carolina this week, which is an increase of 50,000 people from last…
The Charlotte Observer reports that 10 DWI arrests were made at a DWI checkpoint held late Friday night and early Saturday morning. The checkpoint was located in the 9200 block of South Boulevard and took place from 11 p.m. Friday night until 3 a.m. Saturday morning. In addition to the 10 DWI arrests made, police…
Earlier this week, North Carolina Public Radio reported on the backlog at the state crime lab and solutions proposed by a working group to deal with this backlog. The report cites two causes of this backlog – the first being a difficulty in finding and paying qualified staff. The second cause has to do with…
WSOC-TV reports that this morning a Good Samaritan forced a woman to get out of her car stuck on train tracks, just before the train collided with the car and pushed it about a quarter mile down the tracks. The woman had missed her turn onto I-85 in Gastonia and was making a U-turn on…
WSOC-TV reports that a drunken bicyclist was arrested at a Taco Bell drive-through in Florida after employees would not serve him. The bicyclist placed his order at the drive-through window just after 3 a.m. as the restaurant was closing. When the employees would not serve him, the bicyclist refused to leave the window, so the…
The North Carolina Court of Appeals issued an opinion in State v. Ricks today which discussed the issue of whether a cut through across a vacant lot was a “public vehicular area” under the DWI statute. The court held that the area did not meet the definition and reversed the defendant’s conviction. In Ricks, an…
In North Carolina, courts have found a nursing facility to be liable for failing to adequately treat a patient’s pain. In Estate of Henry James v. Hillhaven Corp. (NC Super Ct., Jan. 15, 1991), the patient, Henry James, was 74-years-old. He was a retired house painter who had been diagnosed with prostate cancer. His doctor…
The Charlotte Observer reports that the town of Chapel Hill is attempting to make it safer for pedestrians to cross the street in mid-block crosswalks. The town is replacing the perpetually blinking lights on five mid-block crosswalks with bigger lights that will only blink when a pedestrian pushes a button to activate them. The lights…
If you have a North Carolina driver’s license and are convicted of DWI, you are eligible for limited driving privileges under G.S. 20-179.3 if a. At the time of the offense he held either a valid driver’s license or a license that had been expired for less than one year; b. At the time of…
Usually when we think of a police officer trying to stop DWIs, we think of traffic stops and checkpoints that might lead to field sobriety tests and breathalyzers. The Charlotte Observer reports that Mecklenburg County ABC law enforcement have been trying a new tactic over the past year to prevent DWIs. It is as simple…
The Charlotte Observer reports that a deer was involved in a car accident that occurred yesterday afternoon around 4 p.m. A truck rear-ended an SUV after the SUV stopped to let a deer cross the road in eastern Mecklenburg County. The deer was not hurt but three people were taken to the hospital with minor…
In Washington, D.C., a bill was slated for a committee vote today that would make it easier for bicyclists to recover damages when they are injured in motor vehicle accidents. The bill was postponed until Wednesday, which might be the last time to advance the bill before the end of the year. Proponents of the…
Over the past month, there has been lots of news about the right of a terminally-ill person to end their own life. Currently, only five states have legalized aid-in-dying – Oregon, Washington, Vermont, Montana and New Mexico. Some concerns people have voiced concerning this type of law relate to medical malpractice, namely potentially increasing medical…
Yesterday, the North Carolina Court of Appeals issued an opinion in the case State v. Shepley, which involved the issue of whether a blood sample taken from a DWI defendant pursuant to a search warrant (after the defendant refused a breath test) had to comply with the requirements of G.S. 20-16.2. The court of appeals…
Last month, the United States Supreme Court granted certiorari in the case Rodriguez v. United States, which came out of the 8th Circuit and involved the de minimis delay in a traffic stop to conduct a dog sniff. In Rodriguez, the 8th Circuit held that extending the stop for 7-8 minutes after the issuance of…
As part of an NCDOT “Booze It and Lose It” campaign this weekend, the Charlotte Mecklenburg Police Department conducted a DWI checkpoint from 11 p.m. Thursday night until 3:30 a.m. Friday morning in the 2400 block of Park Road. Twenty-two total charges were issued in connection with the checkpoint, including 10 DWI charges, 6 expired…
In many DWI cases, a law enforcement officer will testify that after making certain observations of the defendant, he formed an opinion that the defendant had consumed a “sufficient amount of alcohol” that the defendant was “appreciably impaired.” Sometimes a defendant will argue that this opinion should not be admissible. However, North Carolina courts typically…
In 1983, the North Carolina legislature passed the Dram Shop Act, which, among other things, created a claim for relief for damages against permittees who sell alcohol to underage people. G.S. 18B-121 states that An aggrieved party has a claim for relief for damages against a permittee or local Alcoholic Beverage Control Board if: (1)…
An establishment which serves alcoholic beverages can incur liability for damages resulting from an intoxicated patron driving if an injured party can show that “(1) that the patron was intoxicated and (2) that the licensee or permittee knew or should have known that the patron was in an intoxicated condition at the time he or…
The Raleigh News and Observer reports that a teenage boy was hit and killed by a state trooper’s cruiser last night in Fayetteville. A little before 8:00 p.m., the boy ran into the road in front of the cruiser. The trooper had responded to an earlier accident and was on his way to the hospital…
A new bill passed last month extends the option of conditional discharge to a wider range of crimes than was available before. A conditional discharge is when a defendant is found guilty by a judge or jury but is placed on probation without the judge entering a judgment in the case. If the defendant successfully…
The Charlotte Observer reports that a man was hit and killed by a freight train near uptown Charlotte around 6:40 p.m. last night. The man was walking along the tracks and did not get out of way of the train, even after the train sounded its warning horn and bell. The train applied its emergency…
WSOC-TV reports that two people were killed after the car they were riding in collided with a tractor-trailer last night. Four people were riding in a Honda going east on Kings Mountain Highway, when the driver tried to make a U-turn to head west. When the car entered the intersection, it was hit by a…
The North Carolina Court of Appeals issued an opinion in a DWI warrantless blood draw case yesterday, State v. McCrary. The court remanded the case to the trial court for additional findings regarding whether exigent circumstances existed. First, let’s look at the detailed facts that are included in the court’s opinion. A deputy went to…
North Carolina statute requires that breath tests in connection with impaired driving offenses be given at least two times and sequentially. The applicable statute, G.S. 20-139.1(b3), provides that Sequential Breath Tests Required. – The methods governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples.…
The Charlotte Observer reports that two bicyclists were seriously injured yesterday morning when they collided with a car in Waxhaw. The bicyclists were traveling northbound and the car was traveling southbound. According to police, the car made a left turn from Waxhaw-Marvin Road onto Exbury Gardens Drive right into the path of the bicyclists. The…
If an officer stops a driver for reasonable suspicion of impaired driving, but then the officer subsequently determines that the driver is not impaired, must the officer immediately let the driver go? It depends on whether there is a drug-sniffing dog on the scene. The Fourth Amendment protects us against unreasonable searches and seizures and…
Earlier today, a man driving a horse-drawn buggy was hit by a tractor-trailer while traveling on Highway 601 in Union County. Although the buggy was demolished and its contents spread over the highway, the driver and the horses escaped the accident without serious injury. The buggy driver was sent to the hospital immediately after the…
“Never events” in surgery are so-termed because they are events for which there is general professional agreement that they should never happen. Surgical never events include leaving a foreign item (like a sponge or towel) inside a patient’s body after surgery, operating on the wrong body part, and operating on the wrong patient. A 2012…
A typical DWI scenario might be a police officer observes a car repeatedly cross the center line, and then the officer stops the driver based on reasonable suspicion of impaired driving. However, what if instead the police officer observed a more minor traffic infraction such as a seatbelt violation or a burned out headlight and…
In case you’ve missed the news, the first person to have contracted Ebola in the United States has been diagnosed. The new patient is a nurse who treated the hospital patient, Thomas Eric Duncan, in Dallas, Texas. Duncan contracted the virus in Liberia but did not show symptoms until after he arrived in the United…
We’ve talked about the doctrine of res ipsa loquitur before, in the medical malpractice context. However, North Carolina courts have also applied this doctrine in very limited circumstances to motor vehicle accidents. Typically, in an action seeking damages for injuries arising out of a car accident, a plaintiff must allege the elements of negligence: (1)…
WSOC-TV reports that a pedestrian woman was killed early this morning while crossing Brookshire Boulevard in northwest Charlotte. The woman was headed to catch a bus on her way to work when she crossed Brookshire Boulevard at the intersection of Hoskins Road. There is a traffic signal at that intersection, and the car that hit…
Earlier today, a Hickory woman was convicted of her fourth impaired driving offense in less than ten years. She was first convicted of DWI in Catawba County in July 2005 and July 2007. She was later convicted of DWI in Alexander County in March 2010. The latest conviction stems from an offense back in December…
The US Supreme Court had a busy day yesterday to begin its new term. Not only did they send the media into a frenzy by declining to review several same-sex marriage cases, effectively legalizing gay marriage in potentially 11 more states, they also heard oral arguments in the case Heien v. North Carolina. Heien is…
WCNC.com reports that two Catawba County students were killed in a car crash late Friday night. The two boys who died were both fifteen-year-old sophomores. There were also three other people in the car at the time of the accident – two senior girls and a nineteen-year-old man who graduated from high school last spring.…
If you’ve checked the weather report, you know that fall is in the air this weekend. And with fall comes the start of a new term of the United States Supreme Court. On Monday, the Supreme Court will begin its new term by hearing arguments in the case Heien v. North Carolina, which I discussed…
What happens when you’re involved in an accident in North Carolina but you live in another state, which is where your auto insurance policy was entered into? The “general rule” stated by the North Carolina Supreme Court in Fortune Ins. Co. v. Owens (2000) “is that an automobile insurance contract should be interpreted and the…
The Raleigh New and Observer reported that a man with four DWI charges was in court again on Monday. The man’s name is Rabah Samara, and his first DWI charge occurred in 2003 when he drove a friend’s car away from an accident which resulted in the death of Stephen Gates, a Tar Heels Sports…
The New York Times reports that Walmart claims that injuries sustained in a June car crash involving a Walmart tractor-trailer truck and a van carrying comedians including Tracy Morgan could have been prevented if the passengers were wearing their seatbelts. Tracy Morgan and two other passengers were injured when the tractor-trailer truck rear-ended the van…
WSOC-TV reports that a thirteen-year-old boy was hit by a van while crossing the street in Concord on Friday night. The thirteen-year-old had just left a high school football game and was jogging across the street in a crosswalk. The driver of the van was sixteen years old, and there is no indication that the…
The Charlotte Observer reports that nine people were arrested for impaired driving at a checkpoint on Albemarle Road last night. The checkpoint was set up by the Charlotte Mecklenburg Police Department and its DWI Taskforce and took place from 11 p.m. last night until 3:00 a.m. this morning. In addition to the nine arrests made…
Last week, the North Carolina Court of Appeals issued an opinion in a medical malpractice case which involved a sponge left in a patient after surgery. In Nicholson v. Thom, the patient went to the defendant doctor for a surgery to have a cancerous tumor removed from her rectum in June 2005. After the surgery,…
The Charlotte Observer reports that there was a head-on crash in Ballantyne early this morning. Some time before 2:30 a.m., a pickup truck was travelling eastbound in the westbound lanes of Ballantyne Commons Parkway near Community House Road, when it collided with a Toyota Prius travelling westbound. The drivers of both vehicles were taken to…
Last week the North Carolina Court of Appeals issued an opinion in the case State v. Shaw which held that a defendant who pleads guilty to impaired driving does not have a statutory right to appeal the sentence imposed when the State fails to to give notice of its intent to seek a grossly aggravating…
The Charlotte Observer reports that a portion of westbound I-40 in Burke County was closed for several hours after a pickup truck collided with a construction worker in a work zone early this morning. Three construction workers were working on repaving a bridge on I-40 shortly before 2:30 a.m., when the pickup truck left its…
On Tuesday, the North Carolina Court of Appeals issued an opinion in the case State v. Townsend. Although the court of appeals had originally issued an opinion in the case back in August (discussed here, here and here), that opinion was subsequently withdrawn and replaced with the one issued Tuesday. The content of the opinion…
Yesterday, the North Carolina Court of Appeals issued an opinion in the case State. v. Overocker, in which the defendant was involved in a minor car accident after coming out of a bar and subsequently arrested for impaired driving. The court held that a minor accident combined with evidence of alcohol consumption (a positive result…
This week is national Child Passenger Safety Week. As part of this campaign, there will be child seat checking events throughout the week across the state of North Carolina. Yesterday morning, CMPD conducted a seatbelt checking station at North Tryon and 11th Streets. 40 tickets were issued for seatbelt violations at the checking station, and…
In most cases involving a person charged with impaired driving, that person is stopped while in the act of driving by a law enforcement officer in a patrol car. However, sometimes police officers are not in a car, but on a bicycle or on foot. The 2013 North Carolina Court of Appeals case, State v.…
Earlier this summer, the North Carolina Court of Appeals issued in an opinion in the case Goodman v. Living Centers-Se., Inc. which looked at the difference between medical malpractice and ordinary negligence in a nursing home setting. We have previously looked at the difference between medical malpractice and ordinary negligence, and this case adds to…
After a person has been convicted of DWI, that person’s license may be revoked as a result the conviction for a period of time. Once that revocation period is up, the person’s license is not automatically reinstated. Instead, the person must complete a substance abuse treatment school or program. G.S. 20-17.6 provides that for a…
Automatism or unconsciousness is a defense to a criminal charge when a person is unconscious at the time that he commits the criminal act. The reasoning behind this defense that the a lack of consciousness means that the criminal act was not voluntary and therefore there is no criminal liability. Does this mean that when…
The Charlotte Observer reports that two 16-year-old high school students, who were hit by cars on Beatties Ford Road during the first week of school, are recovering. In separate incidents, each student was crossing the street outside of a marked crosswalk when the student was hit by a car. In the first accident, the driver’s…
The Charlotte Observer reports that a fatigued driver caused an accident on Independence which killed a woman and sent her two small children to the hospital with life-threatening injuries. The woman was stopped at a stop sign, waiting to turn right onto Independence from a side street, when the fatigued driver crossed from the far…
The doctrine of avoidable consequences is a defense in North Carolina which can lessen the damages that a plaintiff may recover because that plaintiff did not exercise reasonable care in avoiding certain consequences of the defendant’s negligence. The North Carolina Supreme Court has stated that The rule in North Carolina is that an injured plaintiff,…
The sudden emergency doctrine is a defense that may be raised in a negligence action which lowers the duty of care a person owes when he is confronted with a sudden emergency which was not brought about by his own negligence. North Carolina courts have summarized the sudden emergency doctrine as follows in automobile cases:…
Yesterday, the North Carolina Court of Appeals issued an opinion in the case, State v. Armstrong. Armstrong involved the search of the defendant’s automobile, and the court held that, although it did not meet the exceptions to the warrant requirement set out in Arizona v. Gant, the search was allowed under the “automobile exception.” In…
The North Carolina Court of Appeals recently looked at whether the sudden emergency doctrine should be applied in the context of a medical malpractice action, in Wiggins v. East Carolina Health-Chowan, Inc. (2014). There is plenty of case law discussing the sudden emergency doctrine in common law negligence actions in North Carolina. However, the court…
Violating a traffic law can provide reasonable suspicion for a traffic stop, but sometimes driving behavior that does not violate any traffic law can provide reasonable suspicion to make a traffic stop for DWI. A common example of such behavior is weaving within one’s lane, but another example is a delayed reaction at a green…
A 2012 North Carolina Court of Appeals case addressed the issue of “normal” driving in connection with its analysis to determine whether the officer who stopped the defendant for impaired driving had reasonable suspicion to make that stop. Although certain driving patterns can be considered “normal,” this cannot be the only factor considered when determining…
The Charlotte Observer reported that a man from Conover, North Carolina was convicted of habitual driving while impaired and sentenced to at least one year and three months in prison, but not more than two years and three months in prison. The man’s most recent DWI charge, which led to his habitual DWI offender status,…
The Charlotte Observer reported yesterday about a federal lawsuit which has been filed by six North Carolina drivers with disabilities against the North Carolina DMV. The drivers allege that the DMV’s Medical Evaluation discriminates against them because of their disabilities, even though they are safe drivers. The statutory provision pursuant to which the DMV has…
Yes, you read the title of this post correctly – failure to yield at a green light. Does that mean that you have an obligation to let other people go when you have a green light? How could that be – every preschooler knows that green means go. Well, it’s not quite so simple in…
The last two days we’ve looked at the recent North Carolina Court of Appeals decision, State v. Townsend, and its discussion of Knoll motions and checkpoint evidence. Today we’ll look at the opinion one more time to see how it addressed the issue of probable cause for a DWI arrest. To briefly review the facts…
On Tuesday, the North Carolina Court of Appeals issued an opinion in the case State v. Townsend. To briefly review the facts, the defendant in Townsend was arrested for DWI after being stopped at a checkpoint. Yesterday, we discussed the part of the opinion dealing with Knoll motions. In addition to filing a Knoll motion,…
Yesterday, the North Carolina Court of Appeals issued an opinion in State v. Townsend which gives further guidance on the issue of Knoll motions. The court of appeals defined a Knoll motion as a motion which is based on State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), [and] alleges that a magistrate has…
Yesterday, we discussed the authority of campus police as state universities, such as UNCC, and community colleges, such as CPCC. However, private universities are also permitted to have campus police pursuant to the Campus Police Act in Chapter 74G of the North Carolina General Statutes. The purpose of the Act is to provide police protection…
It’s back to school time, with both UNCC and CPCC starting classes this week. Back to school not only means new books for classes but also celebrating with old and new friends, and unfortunately, sometimes that celebrating can lead to impaired driving. Most people have seen campus police but let’s consider what their authority is…
We talked recently about the negligence of emergency vehicles in motor vehicle accidents which causes injury to another person, but in some cases an emergency responder is injured in an accident and the defendant raises the defense of the emergency vehicle’s contributory negligence. In these cases, North Carolina courts have held that, while the driver…
Retrograde extrapolation has been described by the North Carolina Supreme Court as a mathematical analysis in which a known blood alcohol test result is used to determine what an individual’s blood alcohol level would have been at a specified earlier time. The analysis determines the prior blood alcohol level on the bases of (1) the…
Until recently, North Carolina courts required that weaving within your lane, by itself, is not sufficient to provide reasonable suspicion for a traffic stop, but it could contribute to reasonable suspicion under the totality of the circumstances. To provide reasonable suspicion, at least one other factor had to be present, such as driving at an…
Yesterday, we talked about Saturday’s accident where Tony Stewart hit and killed another driver, Kevin Ward, who had gotten out of his car on the track. There continues to be much discussion and speculation surrounding this tragic incident, but we will pick up our discussion where we left it yesterday. We imagined a fact scenario…
The Charlotte Observer, and various other news outlets, have reported about an incident which occurred on Saturday night and involved a car driven by Tony Stewart hitting and killing another driver, Kevin Ward, Jr., who was standing on the track. There has been some speculation about the details of the accident and an investigation is underway.…
Typically, when a motorist is involved in an accident and was going above the speed limit, that person is negligent per se, meaning that they have violated a statute designed to protect the public and proof of the violation is equal to proof of negligence. In that case, an injured party must only show proximate…
Typically, to prove a claim in negligence, a plaintiff must prove that (1) the defendant had a duty to exercise reasonable care, (2) the defendant failed to meet that duty, (3) the plaintiff suffered injuries, and (4) the defendant’s failure to exercise reasonable care was both the actual and proximate cause of the plaintiff’s injuries.…
Anyone who has seen a movie or television show involving a person being arrested has heard a police officer recite the Miranda warnings: “You have the right to remain silent. Anything you say can and will be used against you in a court of law…” These warnings originated in the United States Supreme Court case,…
When most people imagine a person charged with impaired driving in North Carolina, they think of a person who has a blood alcohol content (BAC) at 0.08 or above, as determined by a breath or blood test. However, a person can be charged with DWI with an unknown BAC, as well as with a BAC…
Typically when a person is charged with DWI, they submit to a breath or blood test soon after they have been driving so that the test indicates their blood alcohol content (BAC) at the time of their driving. However, what happens when there is a delay between the time the person is driving and the…
Yesterday afternoon, authorities say a man stole a dump truck from his employer after being fired, committed a robbery and then led police on a chase on I-77, north of Charlotte. After pulling into a rest area, he was involved in a three-hour standoff. The man surrendered peacefully, and fortunately, no one was injured. However,…
Under North Carolina law, if you are charged with DWI and at the time of the violation (1) have a revoked license as a result of a prior DWI or (2) do not have a valid license and are not covered by auto liability insurance, then the vehicle you are driving can be seized. G.S.…
WSOC-TV reports that 300 people were hit by cars last year in the Charlotte-Gastonia-Concord area. A recently released report found that the Charlotte-Gastonia-Concord area is the tenth worst in the country for danger to pedestrians. One of the authors of this report explained that when city planners were expanding roads in the area years ago,…
In North Carolina, the statute of limitations for a medical malpractice action is generally three years from the date of the last act of the defendant contributing to the plaintiff’s injury, pursuant to G.S. 1-15(c). However, like many other states, North Carolina follows the continuing course of treatment doctrine which tolls the statute of limitations…
For medical malpractice actions, the statute of limitations is generally three years from the last act of the defendant giving rise to the injury. However, where a foreign object has been left in a person’s body, that person might not be aware of his injury within this time limit. North Carolina statute recognizes this issue…
Eight people were charged last night with DWI at a checkpoint set up on South Boulevard. The checkpoint was conducted from 11 p.m. until 3 a.m. by the Charlotte Mecklenburg Police Department, although officers from the Matthews and UNCC police departments assisted. Including the 8 DWI charges, there were 73 total charges issued at the…
There have been various news reports over the past year about the backlog that exists in the North Carolina state crime lab. Unlike the results of a breath test, which are available relatively quickly for a person charged with DWI, the results of a blood test can take several months, if not years, to obtain…
A plaintiff in a medical malpractice action must show that the defendant health care provider failed to meet the relevant standard of care, which failure caused injury to the plaintiff. G.S. 90-21.12(a) requires that in any medical malpractice action as defined in G.S. 90-21.11(2)(a), the defendant health care provider shall not be liable for the…
As of yesterday, the woman arrested last Thursday afternoon for drunk driving in York County was still in jail. The woman initially stopped her car at a stranger’s house to ask about a car she wanted to look at. During the conversation, the stranger suspected that the woman was drunk and called the police after…
A plaintiff’s claim in a car accident is based in the law of negligence. To successfully recover damages in a negligence claim, a plaintiff must be able to show that 1) the defendant had a duty to exercise reasonable care, 2) the defendant breached that duty, 3) the plaintiff suffered physical harm, 4) the defendant’s…
Getting your learner’s permit is an exciting rite of passage on your way to adulthood. In North Carolina, anyone under the age of 18 drives with a provisional license subject to the terms of G.S. 20-11. These provisional licenses are divided into three categories: Levels 1, 2 and 3. Level 1 is referred to as…
In North Carolina, motorists and their passengers are required to wear seatbelts, and if the passengers are young children, those children must ride in child restraint seats. The same North Carolina statute provisions which contain these requirements also provide that the failure to wear a seatbelt or ride in a child restraint system is not…
The recent cold snap has led to some recent discussion about a polar vortex this summer. And although there was not actually a summer polar vortex, the talk about it pulled me out of my happy summer frame of mind and got me thinking about last winter’s ice and snow and cold. Ice and snow…
The North Carolina Court of Appeals issued an opinion today dealing with the topic of warrantless blood draws. The case, State v. Granger, is only the second court of appeals case on this topic since last year’s U.S. Supreme Court case Missouri v. McNeely, which held that the dissipation of alcohol in the bloodstream does…
The Charlotte Observer reported that a man who was involved in a scooter accident in June died on Friday. The man was driving his scooter around 5:30 a.m. on June 24th in the University City area, when he ran the scooter off the right side of his road and crashed. He was taken to the…
It was just another busy Thursday night at the popular BBQ restaurant Mac’s Speed Shop in South End, when the patrons and employees were disrupted by a car crashing into the side of the restaurant building. The car was driven by a 15-year-old boy who had recently received his learner’s permit. The boy’s father was…
Many people could identify a potential impaired driver they might see on the road by pointing to signs such as weaving while driving, driving with headlights off, or driving particularly slowly, especially when that driver is doing so late at night in the vicinity of bars. A concerned citizen might make a 911 call to…
If you are injured in a car accident in North Carolina, your claim against the other involved party will be based in negligence. One defense that the defendant may raise is that you were also negligent. In most states, your own negligence will not keep you from receiving damages, but it might reduce the damages…
The Fourth Amendment protects against unreasonable searches and seizures. The North Carolina Supreme Court has held that “[a]n investigatory stop must be justified by ‘a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.’” For a stop to be justified by reasonable suspicion, the stop must be based on specific…
Yesterday, the North Carolina Court of Appeals decided the case State v. Cottrell and held that an officer is strictly limited to the original purpose of a traffic stop and may not extend the stop, even briefly, without either the defendant’s consent or reasonable and articulable suspicion of criminal activity. In Cottrell, the defendant was…
In North Carolina, a DWI conviction will result in a revocation of your driver’s license. G.S. 20-17(a)(2) provides that the DMV must revoke a driver’s license for Either of the following impaired driving offenses: a. Impaired driving under G.S. 20-138.1. b. Impaired driving under G.S. 20-138.2, if the driver’s alcohol concentration level was .06 or…
A North Carolina man was killed Saturday afternoon while riding his motorcycle in South Carolina. According to news reports, the motorcycle ran off the right side of the road, hit a road sign and then a tree, and finally threw the man from the motorcycle. The motorcyclist was pronounced dead at the scene. He was…
Rule 9(j) of the North Carolina Rules of Civil Procedure requires a heightened pleading for complaints alleging medical malpractice. Under Rule 9(j)(1), any complaint that alleges medical malpractice must be dismissed unless: (1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the…
A pedestrian was killed early this morning on a rural Rowan County road. As the pedestrian was walking along the road, he was hit and killed by a tractor-trailer somewhere between 4:30 a.m. and 5:30 a.m. WSOC-TV reports that the pedestrian was intoxicated and walking down the middle of the road. Few other details have…
Today the U.S. Supreme Court issued its opinion in the cases Riley v. California and U.S. v. Wurie, unanimously holding that “[t]he police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” We looked at the issues in these cases back in April…
A person who has committed three impaired driving offenses and commits a fourth within 10 years violates the North Carolina habitual impaired driving statute. G.S. 20-138.5(a) states that A person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more…
Late Sunday night, a bicyclist was hit and killed by a driver in southwest Charlotte. The Charlotte Observer reports that both the driver and the bicyclist were traveling south on South Tryon Street, when the bicyclist was struck by the driver’s Jeep. The bicyclist hit the Jeep’s windshield and was then thrown to the ground.…
We’ve all heard of radar detectors set up to catch speeding cars on the roads. But could something similar be used to detect impaired drivers? Science Daily reports that there is a new laser device which can be used to detect alcohol vapors in passing vehicles. The article describes the use of the device as…
Typically, in medical malpractice suits, plaintiffs are awarded damages based on their injuries suffered. However, when a defendant has acted with fraud, malice or willful or wanton conduct, a jury may award punitive damages to a plaintiff. The purpose of punitive damages is not to compensate for injuries to the plaintiff but to punish the…
The North Carolina Court of Appeals decided yesterday that when a law enforcement officer wants to administer multiple chemical analysis tests to a person suspected of impaired driving, the officer must advise the person of his implied consent rights prior to administering each new test. In State v. Williams, an officer was called to the…
Typically, a health care provider is held liable for damages if the care provided was not “in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged…
If you are lawfully arrested for DWI in North Carolina, you have the right to refuse to submit to a Breathalyzer test. However, refusing to submit to a Breathalyzer comes with serious consequences, including a one year suspension of your driver’s license by the DMV. This suspension occurs when the law enforcement officer and chemical…
On Wednesday, we discussed what is required to reasonably expect an expert to qualify under Rule 702, as required by Rule 9(j) for medical malpractice case. Rule 9(j) also requires that the expert be “willing to testify that the medical care did not comply with the applicable standard of care” and under G.S. 90-21.12 the…
A police officer cannot stop cars whenever he wants because the Fourth Amendment protects us against unreasonable searches and seizures. In order for an officer to conduct a traffic stop under the Fourth Amendment, he must have “reasonable suspicion” that the driver has committed a crime or infraction. But what if the flashing lights and…
Rule 9(j) of the North Carolina Rules of Civil Procedure requires a heightened pleading for complaints alleging medical malpractice. Under Rule 9(j)(1), any complaint that alleges medical malpractice must be dismissed unless: The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff…
Driving while impaired is an implied consent offense in North Carolina, which means that when a person applies for their driver’s license with the DMV they give their implied consent to submit to chemical analysis upon arrest for DWI. However, G.S. 20.16-2(a) requires that before an officer conducts any chemical analysis, he must informed the…
A driver involved in a car accident in North Carolina is liable for damages if that driver is negligent. However, one defense to liability in a car accident is the sudden incapacitation of the driver. Examples of such sudden incapacitation are a seizure, heart attack or stroke. To rely on this defense, the North Carolina…
A police officer cannot stop cars whenever he wants because the Fourth Amendment protects us against unreasonable searches and seizures. In order for an officer to conduct a traffic stop under the Fourth Amendment, he must have “reasonable suspicion” that the driver has committed a crime or infraction. But how does this change if, instead…
On Tuesday, I discussed the difference between medical malpractice and ordinary negligence when making a claim against an individual health care provider. What is the difference when making a claim against a corporation or hospital? First, let’s review why it is important to determine whether a case involves medical malpractice or ordinary negligence. Rule 9(j) of…
On Tuesday, former Charlotte mayor Patrick Cannon pleaded guilty to a federal corruption charge. The official title of the charge is “honest services wire fraud,” which basically means that Cannon accepted bribes in exchange for his political influence. You can see us debating Cannon’s plea deal on a local news station in the video clip…
When does a claim constitute medical malpractice and when is it ordinary negligence? And why do we care? It’s important because Rule 9(j) of the North Carolina Rules of Civil Procedure requires a heightened pleading for complaints alleging medical malpractice. Specifically, it states that Any complaint alleging medical malpractice by a health care provider pursuant…
The Charlotte Observer reported that 16 DWI arrests were made on late Friday night and early Saturday morning at a checkpoint on Park Road. The checkpoint was set up on Park Road, near Archdale Drive, and was conducted from 11 p.m. until 3 a.m. There were 3 under-21 drivers charged with DWI and 13 over-21…
One type of medical malpractice claim in North Carolina is based on the failure to obtain a patient’s informed consent to medical treatment. North Carolina statute contains an informed consent requirement in G.S. 90-21.13. It states, in part, that (a) No recovery shall be allowed against any health care provider upon the grounds that the…
Can an officer search your vehicle if you are arrested for DWI in North Carolina? The US Supreme Court held in Arizona v. Gant (2009) that the police may search your car incident to an arrest only if either 1) the arrestee is unsecured and within reach of the passenger compartment of the vehicle at…
Yesterday, Corey Rosensteel looked at the potential criminal charges involved in Monday’s jet ski accident. Today, I’m going to examine the civil remedies available to the injured parties. First, let’s briefly go over the facts again. Two men in their 20’s were riding jet skis on Lake Norman on Monday. According to officers, they were…
Another Memorial Day has come and gone. It was a beautiful weekend, which led many people out to the water. Unfortunately, two people did not enjoy the water without incident this weekend. News reports indicate that two men in their 20’s were injured when their jet skis collided on Lake Norman yesterday. One of the…
The statute of limitations for a medical malpractice claim in North Carolina is generally three years from the last act of the defendant giving rise to the injury. However, there are a few exceptions to this general rule. Let’s begin by looking at the applicable statute provision. North Carolina statute G.S. 1-15(c) states Except where…
In North Carolina, impaired driving in a commercial vehicle is governed by a separate statute from impaired driving in a non-commercial vehicle. While a blood alcohol content (BAC) of 0.08 will violate the driving while impaired statute for non-commercial vehicles, a commercial vehicle driver with a BAC of 0.04 will violate G.S. 20-138.2(a). That section…
Yesterday, police charged a van driver in connection with an accident that occurred on May 4th and ended up killing the other driver involved. Obviously, punishment assigned or money awarded will not take the place of a loved one lost, but how would the deceased driver’s loved ones go about collecting money to deal with…
The Highway Patrol, the Wildlife Resources Commission and the Alcohol Law Enforcement Division announced yesterday that they will be conducting an effort this summer focused on both the roadways and the water. Among other things, they will be conducting DWI checkpoints near recreational boating areas. However, in order for the evidence obtained during checkpoints to…
In North Carolina, a social host can be liable for injuries caused by a person if “he (1) served alcohol to a person (2) when he knew or should have known the person was intoxicated and (3) when he knew the person would be driving afterwards.” (Camalier v. Jeffries 1995) Historically, in North Carolina, “it…
North Carolina statute contains heightened pleading requirements for medical malpractice complaints. Specifically, G.S. 1A-1 Rule 9(j) states that Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless: (1) The pleading specifically asserts that…
The North Carolina DWI statute G.S. 20-138.1(a) states that A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State: (1) While under the influence of an impairing substance; or (2) After having consumed sufficient alcohol that he…
Last week, we talked about boating while impaired in North Carolina. We compared the statutes relevant to driving while impaired (DWI) and boating while impaired (BWI) and noted their similarities. I also mentioned that one of the differences between the two offenses is that there is no requirement that an officer have reasonable suspicion to…
In 2011, the North Carolina legislature enacted tort reform for medical liability. Part of this tort reform limited the amount of damages a plaintiff can receive for noneconomic damages to $500,000. G.S. 90-21.19(a) contains the relevant statute and states that Except as otherwise provided in subsection (b) of this section, in any medical malpractice action…
A DWI arrest all starts with a traffic stop. But an officer cannot stop cars whenever he wants because the Fourth Amendment protects us against unreasonable searches and seizures. In order for an officer to conduct a traffic stop under the Fourth Amendment, he must have “reasonable suspicion” that the driver has committed a crime…
Typically, a health care provider must act “in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.” The…
The temperatures have been steadily rising and Memorial Day is just around the corner. All of which means that summer is near. Along with summer comes fun on the water, which includes boating. We’ve talked a lot about driving while impaired. What is the law for boating while impaired in North Carolina? G.S. 75A-10(b1) states…
Yesterday we talked about the family purpose doctrine. Today we’ll discuss another way to hold someone besides the driver in a car accident liable for damages – the theory of negligent entrustment. Courts in North Carolina have stated the theory of negligent entrustment as follows: Under the negligent entrustment theory the owner is held liable,…
Suppose you are injured in a car accident with a teenage driver. Is it possible to hold the teenage driver’s parents liable for your injuries? Under the family purpose doctrine, the answer is yes. The family purpose doctrine is an extension of the theory of agency. In order to recover damages under the family purpose…
Usually when we think of someone being charged with a DWI, we think of someone driving a car or truck while impaired. However, the laws governing DWIs in North Carolina are much broader in their definition of a vehicle and include a bicycle, a lawnmower, and a stand-up motorized scooter, just to name a few.…
Earlier this week, five students were injured after one CMS school bus rear-ended another CMS school bus in west Charlotte. The five injured students were taken to the hospital with minor injuries. Fortunately, no one was seriously injured, but what if you were? Who would be liable for damages and how would you go about…
Let’s suppose you are arrested for DWI. Upon your arrest, the police officer conducts a full search and finds your cell phone. Is the police officer allowed to search the information in the cell phone without a warrant? The U.S. Supreme Court will soon tell us. Yesterday, the Supreme Court heard oral arguments in two…
Yesterday we discussed whether punitive damages could be awarded to a party injured in a car accident with an impaired driver and determined that they could. That’s all well and good, but how does an injured party get this money? Car insurance typically pays an injured party for compensatory damages but does it cover punitive…
Let’s suppose that you were involved in a car accident with an impaired driver. Can you recover punitive damages in addition to your compensatory damages? In North Carolina, it’s possible that you can. Punitive damages are addressed by North Carolina statute. G.S. 1D-15 states that: (a) Punitive damages may be awarded only if the…
The Charlotte Observer reports that the driver responsible for multiple car accidents on Idelwild Road on Tuesday evening was subsequently arrested for DWI. During that incident, the driver rear-ended one car, turned around and then hit two more cars, and ended the affair with a head-on crash with a fourth car which caused the fourth…
Can someone other than the driver of the car be held responsible for a car accident? Yes, in North Carolina the doctrine of vicarious liability holds that the actions of a principal’s agent are treated the same as if the principal had acted. However, for this to hold true, the agent must be in the…
What happens if you are driving home, reach down to change the radio station, and swerve so that you almost run another car off the road? Well, under a US Supreme Court case decided yesterday, a witness could make a 911 report of the incident which would provide reasonable suspicion for an officer to stop…
A DWI typically starts with a traffic stop. To lawfully make a traffic stop, an officer must have reasonable suspicion to stop the vehicle. In a DWI case, this includes any traffic violation and can range from speeding, to driving erratically, to having a burned out headlight. If you can show that the officer did…
On Saturday night, a Charlotte woman was seriously injured after being struck by a white Jeep Cherokee while crossing the street at the intersection of Albemarle Road and Sharon Amity Road. The driver of the car did not stop. According to CMPD, the woman was crossing the street outside of a crosswalk. We generally think…
If you are lawfully arrested for DWI in North Carolina, you have the right to refuse to submit to a Breathalyzer test. However, refusing to submit to a Breathalyzer comes with serious consequences. In North Carolina, when you apply for your driver’s license from the DMV, you give your implied consent to submit to breath…
Last night, a tractor trailer truck filled with empty chicken crates veered off the road and crashed into a Rite Aid in Monroe, North Carolina. The fuel tank of the truck ruptured and HAZMAT crews responded to the scene of the crash. Although the store sustained substantial damage, fortunately, the two employees who were inside…
Usually when we imagine someone charged with a DWI, we think of someone getting behind the wheel after drinking one too many. The North Carolina DWI statute, however, is broader than just alcohol and includes driving a vehicle on a highway, street or public vehicular area in North Carolina “While under the influence of an…
If you are in a car accident and want to receive damages for your injuries from the other party, you will have to show that the other party was negligent. One defense that the defendant may raise is that you were also negligent. In most states, your own negligence will not keep you from receiving…
We left off discussing the opinions given by the plaintiff’s treating physicians. By this time in the trial the jury has been selected, they have heard opening statements, heard from the police officer, the plaintiff and now the doctors. Certainly they may have heard from lay witnesses about how the car accident has affected the…
What happens if you have an open container in your car when you are stopped for a DWI in North Carolina? It depends on a few of factors. First, where is the open container located in the car? Second, has the driver had anything to drink? And third, who is in possession of the open…
How is DWI Law in North Carolina Different for People Under the Age of 21? How is DWI law different for people under the age of 21? In short, it’s not. One common misconception about DWI law is that a person who is under the age of 21 can be found guilty of DWI if…
We left off in the last article Charlotte Car accident Jury Trial Part 6 discussing the direct examination of the plaintiff’s treating physician. Today we will continue the discussion delving deeper into the opinions of the doctor and the cross examination of the doctor. One of the most important issues in a Charlotte car accident…
We left off in the last article Charlotte Car accident Jury Trial Part 5 discussing the cross examination of the plaintiff. Today we will discuss the examination of the plaintiff’s doctor. One of the biggest issues in a Charlotte car accident trial is proving that the car wreck caused the injury complained about. Thousands of…
Social media has increasingly become an issue with regard to criminal conduct. There are several ways by which social media relates to the practice of law. There are crimes that are committed through social media, like disseminating obscenity. Sometimes just forwarding a picture or posting it to an account can constitute a crime. Prosecutors are…
We left off in the last article Charlotte Car accident Jury Trial Part 4 talking about the direct examination of the Plaintiff. Today we are going to talk about the cross examination of the plaintiff. Direct exam is where the plaintiff gets to tell their side of the story. You can think of direct exam…
We left off talking about the direct and cross examination of the police officer. Today in this article I will discuss the direct examination of the plaintiff. This is the moment in the personal injury trial when the plaintiff gets to tell his or her side of the story. The jury has been waiting for…
We left off talking about the opening statement in a car accident personal injury trial. This article will focus on the direct and cross examinations of the parties. Direct Examination Direct examination will be the first time the jurors will begin receiving evidence in a case. If you have watched TV or movies you will…
If you’re on our webpage then you’re in the market for a lawyer but it’s very likely that you have already been inundated by letters, you’ve looked at web pages and you’ve talked to friends. But the question is still there: How do I decide which lawyer to hire? Here are some do’s and don’ts:…
We left off talking about Charlotte Car accident Jury Trial Part 1 talking about jury selection. Once the jury has been selected the next step is the opening statement followed by the presentation of the Plaintiff’s evidence. Opening Statement By this time the jury has a basic understanding of car accident through jury selection questions. …
After a Charlotte auto accident the victim will face many challenges from dealing with insurance companies, property damage, doctors, employers, family etc. Eventually, after the dust settles the question of “What is my case worth?” is going to be raised. This is a subject that we have brought up and examined in great detail. The…
About 20 times a day a conversation takes place between a personal injury lawyer of Rosensteel Fleishman and a client regarding the value of their injury claim. This conversation will take place multiple times throughout the life of a claim. However, it is after the initial offer is made and settlement is being discussed that…
A bus accident, unlike a car accident, has the potential to injure dozens of people at the same time. When a bus accident involves a school bus the community typically breaths a collective sigh of relief if no or just minor injuries are reported. The law regarding accidents and buses is the same as the…
Hospital Bills, Malpractice, and Insurance Concerns Recently, a couple in North Carolina had to get the husband’s snakebite treated in the hospital. After being handed a heart-stopping bill worthy $89,000 for an 18-hour emergency stay, four vials of anti-venom and other medical costs, their insurance coverage and Medicare eventually reduced the cost to about $5,400.…
On Wednesday March 26, 2014 the citizens of Charlotte learned that their mayor of only five months had been arrested on federal charges of influence peddling. The 42 page criminal complaint filed in federal court outlines an approximate four year investigation into ex-mayor Patrick Cannon. The Complaint outlines an investigation that began with then city…
There is no worse injustice then being convicted of a crime for which you are innocent. North Carolina is one of the states that allows for compensation if your conviction is overturned by pardon. North Carolina allows for payments of $50,000.00 a year to a maximum amount of $750,000.00. Further, the statute allows for tuition…
Health Insurance and Personal Injury Concerns If the signups for private insurance coverage through the health insurance exchange is any indicator, then more people than expected are signing up for insurance coverage. This is due to the deadline at the end of March, after which people will face a penalty. North Carolina is among the…
Recently the attorneys of Rosensteel Fleishman were asked to view a video of a police shooting in South Carolina. The shooting was captured on the officer’s dash cam. The dash cam is a video camera mounted on the dash of the officer’s vehicle. While dash cams differ in some respects many of them automatically come…
With the housing collapse a number of Charlotte homes went into foreclosure. When you combine that with a declining economy you get a situation ripe for squatting. Adverse possession, or squatting as it is commonly known is when an individual, without the legal right, possesses real property as their own. Historically adverse possession occurred when…
North Carolina lakes in the summertime are quite popular. Lakes give people a chance to relax and provide an oppertunity to cool down. However, with an increasing population and higher congestion (combined with increased drinking) boating accidents in North Carolina have increased. Our lawyers have handled cases throughout North Carolina. In the Charlotte area many…
The expansion of North Carolina’s green ways has also result in an increase of biking popularity. Whether more people are riding bikes is attributed to the increasing cost of gasoline for cars or the numerous health benefits of cycling is unknown. Unfortunately, cyclist face a very real danger of getting into an accident with a…
With insurance companies offering less money based on changes to the law more and more cases are having to be tried in front of a jury. This article will address the steps of a lawsuit from start to finish. Remember, ever case is different and fpr a thougough understanding of your rights please contact us. …
Slip and falls are a common occurrence with thousands of claims made each year in North Carolina. The injuries sustained from a fall can be as serious, or life-altering as any car accident. Unlike a car accident which is investigated by an independent police force a slip and fall usually occurs on private property. The first investigation…
Imagine a trial where the defendant is on the stand testifying that they were not drinking the night of the accident. In fact his entire testimony is about he doesn’t drink and at the time of the car accident he was completely sober. He sounds good, sounds believable and seems contrite that the accident took…
Every lawsuit filed in a NC civil superior court is required to go through mediation. The fact that is it mandatory is the first thing people need to know about mediation. In layman’s terms, mediation is where the two parties (plaintiff and defendant) get together prior to trial to discuss the case and see whether…
Recently after a successful car accident trial here in Charlotte I was asked by another lawyer what is the most important factor to get across to a jury. It was a very astute question and the immediate answer I had was confidence. In my humble opinion, after numerous trials in front of juries across North…
One of the oldest questions in personal injury cases is how do people get medical treatment without health insurance? A number of states have No-Fault laws or PIP coverage wherein the at fault parties insurance pays for your medical treatment. In effect, the car insurance acts like health insurance. NC is a liability state. This…
Our car accident lawyers speak with clients everyday about their car accidents and what insurance companies have tried to do before our office became involved in their case. The number one thing insurance companies try to do is take a recorded statement from the injured driver. This is one of the worst things an individual…
As a personal injury attorney I am constantly asked by my clients which car insurance they should get. While I am not a fan of any insurance company there are some that are clearly better then others. This article will focus on which insurance companies people should avoid. First, let me explain how I am…
After arguing about fault, insurance coverage and contributory negligence you eventually argue about the value of your personal injury claim. Unfortunately, there is no book or website which you can turn to which gives you the value of you back, neck, broken leg, or amputation. Valuing your claim is somewhat like real estate in which…
A common phone call to our Charlotte personal injury attorneys deal with a individual injured in a car accident while on the job. In these types of cases the injured party has two distinct claims. The first, a workers compensation claim through their employer. The second a third party liability claim against the car insurance…
One of the defenses used by insurance companies to not pay NC car accident claims is sudden emergency. The argument, many times misused, is that their insured was reacting to an emergency situation which resulted in the accident. As such, it was not their negligence which caused the accident and they should not be held…
Our personal injury attorneys are regularly questioned by other NC attorneys regarding the applicability of NC law to specific fact situations. One of the the most difficult laws for personal injury attorneys in NC is contributory negligence. Contrib, for short, is the most common defense in car accident claims. Many times insurance companies will allege…
Our lawyers are repeatedly asked by younger lawyers how to handle certain situations which inevitably arise thoughout the course of a trial. We were recently asked about how to admit the police report during a car accidnet trial. The accident report is admissible under two hearsay exceptions. N.C. Gen. Stat. § 20-166.1(e) requires law enforcement…
Our personal injury lawyers speak with clients everyday about their cases and what insurance company adjusters tried to do before our office became involved in the case. The first thing insurance companies try to do, before the plaintiff speaks with a lawyer is take a recorded statement from the injured party. We repeatedly tell our…
Many times people are looking for a Charlotte personal injury lawyer after being involved in a traumatic car accident. During the initial consultation with our office the client will discuss feelings of anxiety especially when driving. These feelings are very common after a car accident. For the client the best course of action is to…
When you are out with friends enjoying yourself at a local bar you don’t expect to end the night in the hospital. Unfortunately, because of the negligence of bar owners that is exactly how many people end their night. The typical case occurs when a bouncer takes it upon himself to “restrain” or fight with…
How Rosensteel Fleishman Helps to Deal with Union County Traffic Tickets Drivers everywhere must be educated on the law of the road. There are numerous types of traffic violations that you can commit if you are not aware of the law. Even if you are aware, there are certain technicalities that may get you a…
Traffic Tickets Attorney in Gastonia It’s nearly impossible to maintain clean driving record throughout adult life. When we can literally count the hours in a week we spend behind the wheel, running a red light, or going past the set speed limit is almost inevitable. We are still far from the age of driverless cars,…
Charlotte Traffic Ticket Attorney A moving violation such as running a red light rule or a non-moving traffic violation such as a registration or inspection ticket are seemingly minor infractions. However, said violations can still result significant repercussions for individuals. NC Traffic violations can be expensive and time consuming since many violations require your appearance…
Personal Injury Attorneys in Charlotte, NC Aside from the obvious physical damages, victims also face a myriad of problems such as psychological trauma, emotional distress, and financial difficulties when they are injured as a result of someone else’s negligence or malpractice. This stress is compounded when preparing for a personal injury lawsuit against individuals or…
How to handle Personal injury Claims in Charlotte If you’re living in Charlotte (Mecklenburg County) or you are just passing through, you never know when you might need the services of a personal injury lawyer. Now, if you’ve been talking with some friends over dinner or colleagues near the water cooler, it’s highly possible…
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