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truckIn a recent North Carolina appellate case, a woman appealed from an order in favor of several defendants, including a contractor and a seafood company. A driver of a rollback commercial truck had delivered a propeller in Virginia on his way to a newspaper company. On the same day, a driver of a pickup truck who was employed by a seafood company drove for his employer to the newspaper company. The driver of the rollback met up with him for the purpose of taking possession of a scallop dredge and getting a crane to load it onto the commercial truck.

Neither the driver of the rollback nor the driver of the pickup operated the crane. Once the crane left the dredge and was put on the commercial truck, the dredge was strapped down by the defendant and the driver of the rollback. The two decided the rollback driver would drive the pickup truck back, and the defendant would drive the commercial truck with the dredge.

About five minutes later, the defendant began backing out of the gate and felt the dredge shift. He pulled over. The rollback driver got out of the pickup and went over to his truck. They made sure the straps were fastened, but when the defendant got next to him, the dredge crushed the rollback driver, killing him.

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operating roomIn a recent North Carolina appellate decision, the court considered an appeal dismissing a plaintiff’s complaint against a doctor, health care system, and physician group. The plaintiff had sued the defendants, asking for money damages for medical negligence after the defendant doctor performed heart surgery on the plaintiff. During surgery, the doctor didn’t control or monitor the plaintiff, and while she was open with surgical tools inside her, she fell from the surgical table. Her head and body hit the floor.

She suffered a jaw injury, bruises, and a concussion and was battered on the side of her body. Later, she’d have nightmares about the fall. A process server served the physician group by serving its registered agent in September 2015. Ten days later, the doctor was served. Five days later, the health care system was served by delivering the complaint to its CFO.

The doctor and physician group answered and moved to dismiss. They denied the allegations and raised various defenses. The health care system moved to dismiss. The CFO provided an affidavit, explaining he was just the CFO, rather than the registered agent.

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basketballIn a recent North Carolina appellate case, the court considered injuries to a basketball referee. The case arose while the plaintiff was hired to referee a high school basketball game. The tournament was created by a basketball club, but the high school was managed by the Education Board. The club paid the Board a fee to use their basketball court as the site of the tournament.

Before the day he was injured, the plaintiff hadn’t refereed at that particular gym. As a ref, he had to run along the court while monitoring the participants’ play. He claimed that while running alongside the game, he stepped on a warped part of the floor next to the court. He fell down and experienced an injury to his knee. The plaintiff also claimed that after taking the spill, the other officials advised him they ran around the warpage so that they wouldn’t fall.

The plaintiff sued the club and the Board, as well as the club owners, alleging he’d suffered a ligament tear and fracture, for which he needed surgery and incurred more than $300,000 in expenses. The Board denied the allegations and defended on the basis of failure to state a claim, and then it moved to dismiss. The judge granted the motion to dismiss with prejudice.

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pregnant womanIn a recent North Carolina appellate case, the plaintiffs appealed from a judgment in favor of a women’s center and two health care providers. According to their complaint, one of the plaintiffs had come under the medical care of the defendants to manage her pregnancy. In March 2007, she was admitted for the medical induction of labor after her pregnancy progressed a week past her expected delivery date. Seven days after admission, there was a notation that a Pitocin induction was planned and would continue with increasing dosage throughout the day.

A couple of days later, the defendant doctor assumed responsibility for her obstetrical care during labor, while the defendant midwife assumed responsibility for midwifery care during that time. The midwife made a record in the woman’s chart that Pitocin would be administered again to the woman. An hour and a half later, she’d ordered that the dosage should stay at six mu/min. About an hour later, the midwife conducted a vaginal exam and found that the woman’s cervix was six cm dilated and consulted with the defendant doctor.

Almost an hour later, the defendant doctor performed a vaginal exam and found she was fully dilated at 10 cm. They stopped the Pitocin administration, and the midwife was paged. The woman started pushing, but a little over an hour later, she was only making slow progress.

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planeIn a recent North Carolina appellate decision, an aircraft company appealed from a denial of its motion to dismiss. The plaintiff was the executor of a couple’s estates. He sued the aircraft company as well as four other companies. Two of the defendants were North Carolina corporations, known as the AirCare defendants.

The case arose when the couple was flying in an aircraft piloted by the wife. The engine lost oil pressure and failed to make power, and then it lost power. The aircraft went through a forced landing, in which it crashed into trees and caught fire. The couple was killed. According to the complaint, the engine was defective, but this was not detected by the decedents before they took off, and the engine suffered from starvation of oil to its rotating components.

The other defendants, known as the CMI defendants, and an aircraft company had supplied parts to be installed during the maintenance of the aircraft by the AirCare defendants. These parts included a starter adapter gear, which could result in this type of failure if it was improperly installed. The plaintiff sued on the basis of negligence, breach of express and implied warranties, strict liability, and negligent misrepresentation against various combinations of the parties.

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babyIn a recent North Carolina appellate decision, the defendants appealed from a motion to dismiss on the basis of public official immunity. A child and his mother sued the defendants for negligence, gross negligence, negligent infliction of emotional distress, medical malpractice, and punitive damages. They alleged that after the child was born, the defendants, who were employees of the North Carolina Department of Health and Human Services, followed screening procedures for newborns that they knew wouldn’t be sufficient for older infants. As a result, they missed diagnosing a metabolism error in the child that later resulted in an emergency that caused him permanent, severe brain damage.

The defendants moved to dismiss and strike, claiming that the court couldn’t hear the lawsuit because they were being sued as government employees, and the State hadn’t waived sovereign immunity, so as public officials, they were entitled to immunities provided to public officials.

On the hearing date, the plaintiffs argued that they’d amended the complaint to show they were suing the defendants as individuals rather than as public officials. The court granted the plaintiffs’ amended motion to amend their complaint again. It denied the motions to dismiss. The plaintiffs amended their complaint, and the defendants answered. They appealed the orders denying the dismissals.

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cheesecakeIn a recent North Carolina appellate case, the court considered parents’ claims related to the negligent injury of their minor daughter. The parents had sued a major chain restaurant in Durham County, alleging that it was incorporated in California but engaged in commerce within North Carolina under a Certificate of Authority and did business with the public in counties in North Carolina.

The parents claimed they ordered half a regular cheesecake and half an ultimate red velvet cheesecake from the defendant’s restaurant at a mall. The plaintiff told the defendant that her daughter was severely allergic to nuts and was told that the type of cheesecake the plaintiff ordered didn’t have nuts. However, an employee made a mistake and gave the plaintiff half a low carb cheesecake instead of a regular one. The low carb version had nuts. The minor daughter became violently sick due to the nuts and needed to be hospitalized.

The defendant moved to dismiss on the ground that the county where the complaint was filed was not the proper venue, since its registered office was in Wake County rather than Durham. The trial court denied the motion to dismiss but did transfer the case. The plaintiffs appealed the change in venue. It argued that this was a reversible error.

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dump truckIn a recent unpublished North Carolina appellate decision, the plaintiff appealed the dismissal of an insurer in his motorcycle accident case. The case arose while he was operating the motorcycle on a state road, and a large truck going too fast around a curve in the road swerved and dumped gravel around him. The spray of debris hit the plaintiff, who lost control of the vehicle and crashed it. The truck didn’t stop, and they couldn’t identify either the driver or the truck’s owner. The plaintiff was injured.

At the time of the accident, the motorcyclist was insured under an automobile policy with Progressive and another one with USAA General. He sued both insurers, seeking uninsured motorist coverage. The claims were denied. Progressive claimed that uninsured motorist coverage wasn’t triggered because there was no physical contact between the plaintiff and the uninsured vehicle or the dump truck and the plaintiff. The insurer claimed that the object that hit the plaintiff had to be part of the equipment on the hit and run vehicle in order for uninsured motorist coverage to be triggered.

The plaintiff sued Progressive and USAA General, asserting numerous claims, including breach of contract and bad faith. He submitted an eyewitness’ affidavit, stating that she saw the debris from the dump truck make direct contact with the plaintiff and his motorcycle, which would other wise not have crashed. She also stated that it appeared there was nothing the plaintiff could have done to avoid the accident.

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paintIn a recent North Carolina appellate case, the plaintiff appealed after summary judgment was granted for the defendant, the City of Gastonia. The city owned a commercial building within a downtown revitalization district. The building wasn’t used to house a municipal or government office or department.

Starting in 2013, the city leased the building to an art guild, which wasn’t affiliated with the city or the county. The city leased the building in order to fill a vacancy and remove blight from the vacant downtown buildings. The purpose of the lease wasn’t profit, and the city kept its responsibility to inspect the building and maintain its exterior.

The art guild was limited to using the location as an art gallery, studio, and gift shop under the lease terms. The art guild had to provide compensation in the form of 90% of all of the rent money it got from subtenants, 30% of the gross sales receipts received for art sold in that location, and 15% of its gross sales receipts, and the subtenants had to provide at least 15 hours of volunteer time at the gallery as well as performing other tasks.

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playgroundIn a recent North Carolina appellate case, a two-year-old child sued several individuals and the executrix of an estate that was doing business as a childcare center. The child was going to the childcare center in 2010 on the date in question. While running on the daycare property, she was hit by another kid who was also attending the center. She suffered serious injuries, including a leg fracture.

Through her guardian ad litem, she sued, claiming that various individuals who ran the daycare were negligent and thereby legally caused her injuries. She argued that they failed to keep the premises reasonably safe, failed to properly supervise the kids, failed to enforce rules, and failed to keep kids on the premises from running, among other things.

The defendants responded. The parties filed a consent order subsequently, dismissing three individual defendants without prejudice. The only defendant left was the executrix of the estate, which was doing business as the childcare center. The defendant filed a motion for summary judgment, which was denied. At trial, the director of the childcare center testified at a videotaped deposition that the plaintiff was one of the kids at the center on the date of the incident. There were four staff members and 18 kids on the playground. Each staff member took 1/4 of the playground so that the kids were carefully supervised.

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