In Trivette v. Yount the defendant, a middle school principle, had a fire extinguisher removed from a classroom after a student had removed the safety pin and discharged the extinguisher.  The fire extinguisher was brought to the front office to avoid any further incident.  The following day the defendant placed the fire extinguisher on or around the plaintiff”s desk in the front office.  The plaintiff alleged that he was joking around with the fire extinguisher and when asked to stop joking “before it went off” said to the plaintiff, “Oh, you’re being such a baby, nothing is going to happen.”  The fire extinguisher discharged and sprayed the plaintiff’s body and face aggravating her preexisting neuro-muscular condition and causing extensive injury.

At issue in this case is the plaintiff’s attempt to seek damages from the defendant directly in a personal injury action under the Pleasants exception.  The defendant contends that he was Ms. Trivette’s employer and thus her relief is limited only to the Workers’ Compensation Act.  The Court of Appeals affirmed the trial court’s decision, stating that though the defendant was Ms. Trivette’s immediate supervisor and an administrator, he is not given the authority to “employ” any person as outlined in N.C. Gen. Stat. §115C-288.  Therefore, the defendant was a co-employee and not the employer.  The Court also found sufficient evidence that he acted in a willful, wanton and recklessly negligent manner because he knew that there was a risk of the extinguisher accidentally discharging and was asked not to joke around with it, but continued to do so causing harm to the plaintiff.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Labor and Employment, NC Court of Appeals, North Carolina, Personal Injuries, Workers' Compensation

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

Categories: Judicial Decisions, Results Tags: Appeals, Briefs, Burton Craige, Case Commentary, Industrial Commission, NC Court of Appeals, NCAJ, North Carolina, Personal Injuries, public duty doctrine, Results

Burton Craige addressed another bill passed in the North Carolina General Assembly this session with his paper entitled “SB 33: The Brave New World of Malpractice Litigation” where he summarizes Senate Bill 33, shows its evolution and addresses some of the possible constitutional challenges that it may face.  He spoke about his paper at a CLE hosted by the North Carolina Advocates for Justice in Raleigh on August 31, 2011.

Introduction:

On July 25, 2011, the North Carolina House of Representatives, by a vote of 74-42, overrode Governor Perdue’s veto of the medical malpractice bill (SB 33). The enactment of SB 33 culminated an intense six-month legislative battle.

When the Act becomes effective on October 1, 2011, a new era of malpractice litigation in North Carolina will begin. Injured patients, who already face formidable barriers, will find it harder to find a lawyer, pursue their claims, and recover adequate compensatory damages. Lawyers and judges will be forced to decipher complex new statutory language.  Courts will confront constitutional challenges to the bill’s most controversial provision, the $500,000 cap on noneconomic damages.

Categories: News of the Firm Tags: Articles, Burton Craige, CLE, Constitutional Law, Legislation, Medical Malpractice, NC Legislature, NCAJ, Personal Injuries, Presentation

Burton Craige authored a paper this month titled “Billed v. Paid: Present, Past, Future”.  Burton presented his paper this month at the North Carolina Advocates for Justice CLE, “Bill v. Paid: Counting the True Cost.”  His paper discusses the way the “Billed v. Paid” issue is handled in other states and how North Carolina’s law has changed over the years.

Introduction:

In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

Categories: News of the Firm Tags: Articles, Burton Craige, CLE, Constitutional Law, Damages, Medical Bills, NC Legislature, NCAJ, North Carolina, Personal Injuries, Presentation

Burton Craige recently submitted an amicus brief with attorney Andrew J. Schwaba on behalf of the North Carolina Advocates for Justice in Jenkins v. Hearn Vascular Surgery P.A., addressing the question: “Is a child injured by prenatal medical malpractice barred from bringing a cause of action if the negligence occurred early in the pregnancy?”  A copy of the brief may be viewed here.

Summary of the Brief:  “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.

The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence.  When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury.  This duty does not depend on whether a fetus has reached the stage of viability.  Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”

Categories: News of the Firm Tags: amicus brief, Briefs, Burton Craige, Medical Malpractice, NC Court of Appeals, NCAJ, Negligence, North Carolina, Personal Injuries

A civil rights complaint has been filed in federal court on behalf of Plaintiff Gregory Flynt Taylor against Peter Duane Deaver and other former employees of the North Carolina State Bureau of Investigation seeking damages for his wrongful incarceration.  The complaint may be viewed here.

In April 1993, Mr. Taylor was wrongfully convicted and sentenced to life in prison for a murder two years earlier which he did not commit.  The Defendants worked in the SBI Crime Lab and wrote a deliberately misleading report about evidence collected from the crime scene.  Because this report misrepresented the facts and the findings of the laboratory tests, Mr. Taylor was convicted of a crime he did not commit and spent the next 17 years in prison.  On February 17, 2011 a three-judge panel unanimously found that Mr. Taylor was innocent of the charge of murder and ordered his immediate release.  Mr. Taylor was given a full Pardon of Innocence by Governor Beverly Perdue on May 21, 2010.

Mr. Taylor’s complaint brings claims under the federal constitution, North Carolina Constitution, and North Carolina common law.  Mr. Taylor is represented by Burton Craige and Narendra Ghosh, as well as Spencer Parris and Christopher Olson at Martin & Jones.

Categories: News of the Firm Tags: Burton Craige, Civil Rights, Complaint, Constitutional Law, EDNC, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

The following briefs opposing defendants’ motion to dismiss have recently been filed in Dail, v. City of Goldsboro, et al.: Plaintiff’s First Response Brief and Plaintiff’s Second Response Brief.  Mr. Dail was convicted of a crime he did not commit and subsequently imprisoned for 18 years.  He was exonerated in 2007 when DNA evidence proved his innocence.  This evidence – which was later recovered – had been improperly handled and allegedly destroyed in 1995 by the City of Goldsboro.  The case is now before Judge Boyle in federal court (EDNC). Mr. Dail is represented by Burton Craige and Narendra Ghosh of Patterson Harkavy, as well as Spencer Parris and Christopher Olson at Martin & Jones.  More on the case can be found here.  This a summary of Plaintiff’s argument:

Dail has properly stated cognizable claims for relief arising from his wrongful incarceration. Dail has stated a valid claim for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), because Defendants had a policy or practice of failing to properly inventory and safeguard evidence, including the evidence that ultimately exonerated Dail. Defendants’ unconstitutional conduct arbitrarily denied Dail’s liberty interest and resulted in his continued wrongful incarceration. Unlike the plaintiff in District Attorney’s Office for Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009), the principal case upon which Defendants rely, Dail has not impermissibly used § 1983 to seek access to potential evidence, but instead properly invokes § 1983 to redress Defendants’ unconstitutional failure to reasonably maintain evidence.

Dail has also properly brought state law claims for negligence and obstruction of justice, which are not time-barred. Those claims did not accrue until August 27, 2007, when Defendants first notified Dail of the results of the DNA testing, or on August 28, 2007, when Dail was finally released from custody, and thus were timely filed on August 26, 2010. Finally, Dail has stated valid claims under the North Carolina Constitution based on Defendants’ violations of his rights to procedural due process and entitlement to exculpatory evidence.

This case presents weighty issues of constitutional significance in an evolving area of law. Consideration of the merits of the claims asserted in this action should follow development of a full factual record.

Categories: News of the Firm Tags: Briefs, Burton Craige, Civil Rights, Constitutional Law, EDNC, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

On Monday, December 6, firm partners Leto Copeley (Chapel Hill) and Ann Groninger (Charlotte) obtained a $250,000.00 verdict in Forsyth County Superior Court on behalf of their client, Thomas M. Sprinkle, against Hammaker East Emulsions, LLC, an asphalt manufacturing company.

Mr. Sprinkle was working for his employer Blythe Industries as a tack distributor truck driver on December 3, 2008, the day of his injury.  That morning his truck was empty and he drove to Hammaker East to have the truck loaded with tack.  After directing him to the loading dock and inserting the pipe into his truck, a Hammaker employee told Mr. Sprinkle that the pipes were clogged and it would be a little while before the tack started flowing.  Mr. Sprinkle remained on top of his truck, as he normally did, waiting for the tack to flow.  What he did not know, because Hammaker employees failed to tell him, was that, when the clog loosened, it would come out with a big “kapow.”  He also did not know that, in addition to blowing air through, and heating the pipes, the Hammaker employees left on the valve that allowed tack to flow from their system into Mr. Sprinkle’s truck.  When the clog finally loosened, the pipe came bursting out of the truck, spraying tack all over the truck and Mr. Sprinkle and knocking Mr. Sprinkle more than 10 feet to the ground.

Mr. Sprinkle’s knee was “pulverized” according to his doctor.  He had a complicated surgery to reconstruct his knee, a long period of recovery, and will likely need knee replacement surgery in the future.  After knocking him off his truck, Hammaker employees left Mr. Sprinkle sitting outside in the below-freezing temperature, until his supervisor arrived and called 911.  There was testimony that Hammaker’s plant manager, Bryan Miller, was slurring his words and reeked of alcohol immediately after Mr. Sprinkle’s fall.

Attorneys Valerie Johnson and Narendra Ghosh and paralegal Elizabeth Weatherspoon provided valuable assistance throughout the trial.

Categories: News of the Firm, Results Tags: Ann Groninger, Forsyth County, Industrial Accident, Leto Copeley, Narendra Ghosh, Negligence, Personal Injuries, Premises Liability, Results, Valerie Johnson

The North Carolina Court of Appeals published two decisions on workers’ compensation this month.  The first case, Kingston v. Lyon Construction, concerns workers’ compensation liens and third-party recoveries.  The plaintiff was exposed to asbestos on the job and developed illness as a result.  He was awarded workers’ compensation benefits, and brought and settled tort cases against manufacturers of the asbestos.  He then brought a motion to determine the workers’ compensation liens under N.C.G.S. § 97-10.2(j).  The Court of Appeals affirmed the trial court’s conclusions that the motion was proper even though only some of the third-party cases had been resolved, and that the workers’ compensation lien should be eliminated entirely because the third-party recoveries were reduced due to bankruptcies.

The second case, Nobles v. Coastal Power & Electric, concerns an issue of suitable employment.  The Industrial Commission had awarded temporary total disability benefits up to the time of the plaintiff’s maximum medical improvement, but did not find him disabled afterward.  The primary issue regarding disability concerned the defendant’s offer of a new position to plaintiff to accommodate his injury.

“The Workers’ Compensation Act provides that an injured employee is not entitled to compensation if he unjustifiably ‘refuses employment procured for him suitable to his capacity.’” N.C.G.S. § 97-32.  “Suitable employment is defined as any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills, and experience.”  However, “employers may not avoid paying compensation merely by creating for their injured employees makeshift positions not ordinarily available in the market.”  In this case, the Court upheld the Commission’s findings that the position offered to the plaintiff was suitable, and was not make-work because it had been offered previously and subsequently to others.

Categories: Judicial Decisions Tags: Asbestos, Case Commentary, Disability Benefits, Industrial Commission, Liens, NC Court of Appeals, Personal Injuries, Suitable Employment, Third-party Suits, Workers' Compensation

Burton Craige and Leto Copeley are speaking this weekend at the North Carolina Advocates for Justice Mountain Magic Conference.  Burton is leading a panel entitled “Collateral Attack on the Collateral Source Rule.”  He will lead a discussion about the national trend to allow defendants to introduce evidence of the amount actually paid for medical expenses, rather than limiting the evidence to the amount billed.

Leto will be speaking about employment law issues that workers’ compensation practitioners should be aware of, such as the ADA and FMLA.  Wage and hour issues are also important ones to consider.  As this short paper prepared by Leto and Narendra Ghosh states, “Workers’ compensation practitioners should remain vigilant for potential wage and hour violations as they pursue claims for their clients. When getting information on a client’s average weekly wage, for instance, it is important to at least consider whether your client is getting paid fully, including for overtime, under the wage and hour laws.”

Categories: News of the Firm Tags: ADA, Articles, Average Weekly Wage, Burton Craige, FMLA, Labor and Employment, Leto Copeley, Narendra Ghosh, NCAJ, Personal Injuries, Presentation, Wage and Hour, Workers' Compensation