Injury

Crashworthiness claims available in NC, as long as you were not at fault

August 26, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What if a loved one dies from the injuries sustained in a serious accident while the case is pending?”

A court battle over legal fees stemming from a deadly 2009 car accident ended last week in Philadelphia, Pennsylvania. Daniel Lopez Ortiz was killed when his car was struck by a box truck in April 2009. Mr. Ortiz’s widow, Maria Fonseca, filed two separate law suits relating to Mr. Ortiz’s death. Ms. Fonseca engaged at least four different law firms to litigate her deceased husband’s claims—one a negligence claim against the driver of the box truck and the second a so-called “crashworthiness” claim against the automaker.

Ms. Fonseca’s counsel obtained significant awards on behalf of the Estate of Mr. Lopez, short of trial. Before the settlements cleared, however, the lawyers and law firms that represented Ms. Fonseca and Mr. Lopez’s estate brought a series of legal actions against each other seeking a cut of the contingency fees earned in the cases. The law firms ended their actions against each other before jury selection began on Aug. 13.

While negligence lawsuits stemming from automobile accidents are common, so-called “crashworthiness” lawsuits may be less familiar to plaintiffs in North Carolina. The “crashworthiness” doctrine was first recognized some 40 years ago.

Public policy ends suit brought by man against skydive-sponsoring Smiling Moose owner

August 21, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What if the accident was my fault?”

Public policy has ended a man’s lawsuit against a bar owner for injuries the man sustained in a skydiving incident.

The man, Stephen Scheuren, was a spectator at The Smiling Moose Saloon & Grill’s 2009 Moosefest, a charity event organized by Smiling Moose owner Cheryl Vogel. At the event, paper plates with numbers written on them were scattered throughout a skydiving landing zone. Skydivers were to pick up plates on landing. Those whose numbers were written on the selected plates won raffle prizes.

Two tandem skydivers, including Manitowoc Mayor Justin Nickel, landed in the landing zone but then slid between two tents into the group of spectators, striking Scheuren and an eight-year-old boy. Scheuren suffered unspecified leg injuries that required surgery.

Mayor Nickel was ultimately dismissed from Scheuren’s lawsuit, but Scheuren obtained a default judgment against one defendant and settled with several others. Only Scheuren’s claims against Vogel remained. She argued that Wisconsin’s so-called “recreational immunity statute” shielded her and The Smiling Moose from liability. A circuit court ruled against Scheuren, so Scheuren appealed.

Government trampling on people’s right to know under Freedom of Information Act

August 19, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question ” If an incident report was filled out, do I have a right to receive a copy?”

What are “White House equities?” No one seems to know. The Obama administration has never defined the term, but it uses it in order to delay “the ability of federal agencies to timely respond to FOIA requests,” according to the Washington Post.

What are FOIA requests? FOIA is an acronym that stands for the Freedom of Information Act. The Act was enacted by Congress in 1966 to, according to the government, “give the American public greater access to the federal government’s records.” In general, the United States was founded as a government by and for the people; FOIA is a means by which the people of the United States can stay “in the know about their government.”

Individual citizens may request information from government agencies, citing FOIA. Many legal and public interest groups use FOIA requests to uncover information that they believe further their causes or prove that their suspicions about government agencies are up to are true.

Some information cannot be disclosed. Information regarding ongoing criminal investigations, criminal informants and the existence of foreign intelligence or counterintelligence are excluded from production pursuant to FOIA. In addition, a range of other types of information is exempted or privileged from production under the Act.

Woman who died waiting for malpractice trial has former Gov. Easley in her corner

August 14, 2014 | AS Personal Injury Lawyers

Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What should I do if I have been injured by another party but I can’t afford a lawyer?”

How long does it take to get a medical malpractice case into the hands of a jury? Eleven years and counting, at least for one North Carolina plaintiff. Sadly, Pamela Justus did not live to see her claims against neurosurgeon Michael Rosner, Park Ridge Health and Adventist Health litigated in a court of law.

Jurors in Henderson County Superior Court viewed Ms. Justus’ video testimony on Monday. The testimony was recorded more than two years ago—before Justus’ death. Justus said she hoped her lawsuit would keep what happened to her from happening to anyone else.

Mrs. Justus has alleged that Dr. Rosner performed unnecessary spinal procedures which failed to correct her medical problems of pain and fatigue and created additional medical problems, including neck and back pain, severe headaches, nausea and a paralyzed vocal cord. Dr. Rosner performed the surgeries in 2000 and 2001. Mrs. Justus died on Sept. 20, 2012.

Dr. Rosner’s medical license has been suspended repeatedly by the N.C. Medical Board. The board found in 2003 that Dr. Rosner had performed unnecessary surgeries on at least eight patients, including Mrs. Justus. In his spinal decompression surgeries, Dr. Rosner would carve away portions of the spine and the back of patients’ skulls in order to treat chronic pain conditions such as fibromyalgia. More than 20 lawsuits have been filed against Dr. Rosner alleging medical malpractice and professional negligence. Mrs. Justus filed her lawsuit in 2003.

Car racer death tragic; contributory negligence rule would rule out death lawsuit in N.C.

August 12, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What exactly is a wrongful death claim?”

No one who has been hurt in an accident wants to hear their suffering was their own fault. No family member wants to hear the death of a loved one was caused by their loved one’s own negligence.

This was exactly the sentiment many car racing fans felt this weekend as they came to terms with the sport’s latest on-track fatality. It was, to be sure, a preventable death. During a race on a dirt track in Canadaigua, New York, something caused 20-year-old racer Kevin Ward’s racecar to spinout. Early reports suggested racer Tony Stewart’s car bumped Ward’s car, causing the spinout; subsequent reports and a review of video of the incident make that conclusion unclear.

What is clear is that after his car spun out, Ward climbed out of his vehicle and walked onto the raceway, appearing to gesture at oncoming racecars, including Stewart’s. In a scene straight out of a horror show, Stewart’s car appeared to collide with Ward, either running him over or sucking him under the car. Ward was then seen lying motionless on the track. The race was immediately called, and emergency technicians could be seen tending to Ward within seconds of the collision, but it was too late. Ward died of his injuries.

The Ontario County Sheriff’s Office continues to investigate the incident. Investigators said a “visibly shaken” Stewart was questioned twice after the incident and fully cooperated with authorities. Sheriff Philip Povero told reporters on Sunday that investigators had no information showing criminal intent, although charges had not yet been ruled out.

Care.com sued by parents of infants killed while under care of nannies

August 7, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What if a loved one dies from the injuries sustained in a serious accident while the case is pending?”

A website that links consumers with caregivers for children, seniors and pets has been sued by a Wisconsin couple who used the website to hire a nanny to care for their infant daughter. The infant—Rylan Koopmeiner—died in 2012 of a head injury. Police have charged the nanny that the Koopmeiners hired through Care.com with murder.

The nanny—Sarah Gumm of Waukegan, Illinois—was caring for infant Rylan at her home when the child “suffered a skull fracture and cranial hemorrhaging and died on July 27, 2012.” The cause of the child’s death, according to an autopsy, was blunt force trauma to the head.

Ms. Gumm had been cited twice for drunken driving and once for battery before the Koopmeiners hired her. They paid for the highest-level background check available on Care.com, but the site failed to reveal Ms. Gumm’s criminal record. The Koopmeiners say they would not have hired Gumm if they had known about her criminal history. They say Care.com was negligent.

Care.com has responded that while it is deeply saddened by Rylan’s death, the company cannot comment on ongoing litigation. Ms. Gumm’s attorney has said that she did not kill Rylan intentionally.

Elder abuse and neglect a growing concern for families and society

August 5, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What will happen after I file my nursing home complaint?”

The population of the United States is getting older, literally. While in general the modern elderly are more active, independent and healthy than at any time in recorded history, the sheer number of elderly persons needing basic and extraordinary care is growing. As the so-called Baby-Boomer generation nears and enters retirement, the number of persons needing basic and extraordinary care is expected to continue to increase.

Many elderly persons are outliving their retirement. Many have few opportunities for gainful employment, even if they can work, and face struggles to generate enough income to cover basic expenses, not to mention soaring medical costs. Inevitably these persons turn to their families for help. Families are faced with footing the bills for nursing homes or finding people to care for loved ones.

Unfortunately, many families are unequipped to deal with the expenses associated with caring for elderly loved ones. The American Psychological Association estimates that some 4 million older Americans fall victim to abuse or neglect every year. Observers report, however, that for every reported case of abuse or neglect, as many as 23 go unreported. Most instances of elder abuse or neglect do not occur in nursing homes. Sadly, most instances of elder abuse and neglect occur at home. Most often, family members, household members or paid caregivers are the abusers. Continue Reading

Pet killings leave pet owners with a lot of grief, little to recover in damages

July 29, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What does the “one-bite rule” mean in NC dog bite cases?”

A killer is on the loose in Union County. On Saturday, a pet owner in the county notified law-enforcement authorities that his two Great Danes had been shot by arrows.

An officer responding to the call found one dog lying near the back corner of the man’s property, while a second dog was found under a shed. An arrow was still stuck in the first dog. The officer could not find a second arrow, but observed what appeared to be an arrow wound to the second dog’s neck. Both dogs died of their injuries.

This followed the fatal shooting of a dog in Union County last week. In that case, a woman found her husky mix dead under her storage building, with four gunshot wounds. The storage building also was riddled bullet holes, according to the Union County Sheriff’s Office. The dog’s owner said the husky was valued at $500.

Last month, two dog owners in Union County reported that their pets had been poisoned with antifreeze. The dog owners theorized that hunters had put out antifreeze to ward off dogs or coyotes. The Union County Sheriff said an investigator was working on those cases, and that using antifreeze to get rid of dogs was illegal.

North Carolina treats cruelty to animals as a criminal matter, and the state routinely prosecutes those who commit cruel acts upon or who are neglectful toward animals. But what recourse does a pet owner have against one who is found responsible for the death of a beloved animal?

Believe it or not, the North Carolina courts have answered this question, but pet owners may not like the answer.

Death of man after cop’s chokehold leads to retraining for 35,000 officers

July 24, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What if a loved one dies from the injuries sustained in a serious accident while the case is pending?”

Images of a man being subdued by at least five New York City police officers flashed across media outlets around the world last week after the man—a 43-year-old father of six—died in custody.

The man—Eric Garner—was placed in a chokehold by Officer Daniel Pantaleo before other officers joined in to take Garner down. Sgt. Kizzy Adonis said she believed she heard Garner trying to notify officers that he was having difficulty breathing after being taken down.

Officers first approached Garner because they alleged he was selling untaxed cigarettes. After approaching him, they said, he resisted arrest and failed to obey instructions as police tried to handcuff him. After Garner became unresponsive, a witness could be heard on video of the incident asking officers why no one was performing CPR. An officer answered that Garner was breathing, so he didn’t need CPR.

An initial investigation into Garner’s death did not mention Pantaleo’s chokehold, claimed Garner was not in “great distress,” and said he did not “get worse” while being held down by officers. Video footage of the skirmish, however, appears to show Garner struggling on the pavement and repeatedly saying “I can’t breathe” before losing consciousness.

Pistol whipping leads to discovery of massive brain tumor, inadvertently saves man’s life

July 22, 2014 | AS Personal Injury Lawyers

Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What can you sue for in a personal injury case?”

Strange things were afoot at the Circle K store in Phoenix, Arizona where Jeremy Willey worked. He thought he was having one of the worst days of his life on May 24 when a masked robber entered the store, tied Willey up and administered a brutal pistol whipping.

Turns out the pistol whipping saved Willey’s life.

Willey’s cuts required stitches; to be on the safe side, doctors took X-rays of his skull. The X-rays showed the robber hadn’t inflicted any serious damage, but doctors discovered something far worse: a massive tumor growing in Willey’s brain. Willey had been asymptomatic and likely would have remained so, doctors said. The tumor would have progressed to the point at which Willey would have gone to sleep one night and would not have woken up again. Doctors said they caught the slow-growing tumor just in time.

The tumor is benign—meaning its cells will not spread to other parts of Willey’s body—but it may take as many as three surgeries to fully remove it due to its size. Willey has undergone one of the surgeries already. The first surgery has left Willey partially paralyzed.

Willey’s wife, Alisha, said it was difficult to feel thankful towards someone who had violently attacked her husband. Security footage captured images of the robber. The images showed the man striking Willey across the back of his head with a gun. The robber has not been caught.