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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soccer-5-1437147-e1490375417501You should consult an attorney as soon as you know you’ve suffered injuries, or you risk facing the loss of your ability to recover for damages based on the statute or limitations as well as the statute of repose.

In an unpublished North Carolina appellate case, the plaintiff appealed from orders that granted a college’s motion for judgment on the pleadings. The case arose from an alleged sexual assault of the plaintiff by the college’s soccer coach. According to the plaintiff, the college was aware of other sexual assault claims against the soccer coach, but didn’t take any measures to stop further sexual assaults and didn’t let the police know.

The plaintiff claimed law enforcement officers first contacted him in 2012 and told him that his mother had complained to the college in 1990 about the sexual abuse he’d suffered. He first knew that the college was aware of pre-1990 allegations while meeting with law enforcement officers in 2012.

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pain-1366480In an interesting 2016 North Carolina appellate case, the plaintiffs appealed a dismissal of their complaint against a hospital and university health care system. The case arose when a man was admitted to the hospital complaining of abdominal pains. He was married to the plaintiff and was the father of two children who were also plaintiffs. He was an active, healthy person.

While at the hospital, the man’s condition got worse and he was transferred to the ICU, put on a ventilator and died. His body was transferred to the university health care system, but it was later unclear from the plaintiff’s complaint whether this was before or after he died. The defendants’ responsive pleadings stated that his deceased body was transferred.

A few years later, the plaintiffs sued the hospital and health care system. They claimed that the decedent had screamed and called out loudly for his wife and kids, but the hospital staff refused to permit them to see him. The wife told staff she had waited too much time to see her husband and staff had sat with her in the waiting room but refused to let her see the man. The plaintiffs also alleged that neither the man nor his wife had given permission for him to be removed from the ventilator.

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i-haul-1450942-2-e1490314702756In February of 2017, a man was killed in an accident involving two tractor-trailers and a car on North Carolina 11 between Pink Hill and Deep Run. The accident happened just after 1:00 pm. Investigators determined that a tractor-trailer driver tried to enter the highway when he hit another tractor-trailer traveling north on 11. The trailer that was hit drove off the road and hit a passenger car that was stopped on a nearby road. The car spun out, and the trailer overturned onto it.

A 68-year-old man sitting as a passenger inside the car was killed while the car’s driver was injured and taken to a medical center. The drivers of the tractor-trailers were also taken to the hospital. The tractor-trailer driver who caused the accident was charged with misdemeanor death by vehicle.

The criminal charges brought against a tractor-trailer driver who causes an accident are independent of any civil charges that may be brought by the accident victim or his family if he dies. There is a higher burden of proof for criminal cases. Guilt must be proved beyond a reasonable doubt in criminal cases, while liability must be established by a preponderance of the evidence in a civil suit. Liability in the civil suit is expressed through money, whereas guilt in a criminal case can subject the defendant to imprisonment, fines, or other penalties.

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bicycle-1443865-1-e1490129796451Recently, a 55-year-old bicyclist was killed when he rode through a red light in Raleigh before 7 a.m.. He was struck by a North Carolina police officer who was driving a marked SUV.

The bicyclist was bicycling southbound at about 23 mph and trying to cross the street against a red light. The police officer wasn’t injured in the accident, and he wasn’t cited.

All bicyclists in North Carolina are required to follow traffic signals, including red lights. They are also subject to other laws that are exclusively applied to bicyclists. For example, bicyclists must have both a front and rear light when riding in the dark, and these lights need to be visible from 300 feet. In some cases, reflective clothing may be worn instead.

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that-hurt-1450455-1-e1489534365557A recent North Carolina appellate case considered the effect of a workers’ compensation claim on an employee’s recovery in a lawsuit against a third party. The plaintiff was hurt in a car crash while driving in a company truck on a highway. The defendant rear-ended him, and the force caused the truck to hit another vehicle. The plaintiff’s neck was seriously injured.

The unnamed defendants, the employer, and its workers’ compensation insurer accepted the plaintiff’s workers’ compensation claim and paid him $7,432.13 in workers’ compensation medical benefits and indemnity payments.

He sued the defendant, claiming that the defendant negligently caused the accident. At the trial, evidence was presented on the issue of the workers’ compensation benefits paid to the plaintiff. The judge reduced the recovery by the benefits so that judgment against the at-fault party was $3,576.87 plus interest. This judgment was in compliance with N.C. Gen. Stat. § 97-10.2(e). However, the judge entered an amended final judgment providing for a judgment in favor of the employer in the amount of $7,423.13. In the first judgment, the amount of benefits was deducted from the plaintiff’s recovery, but in the second, a sum was specifically awarded to the employer. The plaintiff’s damages stayed the same.

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