Most people think that ANY injury at work gives them workers’ compensation benefits – WRONG!

In order to have a compensable worker’s compensation claim in NC, you MUST suffer what’s called an “injury by accident.” There are some exceptions to this rule (back injuries, hernias, occupational diseases, and a few more) but that’s for later posts.

Or course, there are also other elements necessary to constitute a valid worker’s compensation claim, but once again, those are for later posts.

How do you define “Accident?”  Try this: definite event which can be fixed by time and place.  It’s NOT something that gradually develops over time.

Case law states that accidents”…occur when the work routine has been interrupted and unusual conditions are created, which are likely to produce unexpected consequences.”

It’s NOT the usualness that’s important, but the UNEXPECTEDNESS of the event that helps to make it deemed an accident.

Swindell v. Davis Boat Works, Inc.is a big case in this vein.  Its rule is that normal work (even if strenuous) doesn’t  make an accident.  In this case, a man working on a factory floor was walking and sidestepped an employee and his knee was injured.  This was held eventually to not be an accident.  This was just a normal thing that he does at work and outside of work, it wasn’t unexpected or unusual.

Unusual conditions help. In Gaddy v. Cranston Print Works Co. an employee was injured doing the routine job of another employee, NOT his job.  This was held to be compensable because doing someone else’s job, not your own, is unusual/unexpected.

I like to use this example as further illustration:

• Walking up stairs, knee gives way = NOT an accident because nothing unusual about walking up stairs at work (or at home, or at the mall…)
• Walking up stairs and STAIR gives way = accident because it’s UNEXPECTED that the stairs would give way.

Clients are often blindsided by this because they think comp covers EVERYTHING at work.  It DOESN’T!!!!

When reporting your claim, it is VERY important that you make sure the incident is described as an accident (assuming it was in fact an accident).

Of course, there are exceptions to every rule:

• Back injuries = specific traumatic incident
• Hernias = same
• Intentional assaults – not accident, but as long as dispute is over work, OK.

 

As I mentioned earlier, we’ll talk about this stuff in a future post.

 

Thanks again for looking at this. And remember, if you have a work injury claim, call me! I’ll do what I can to help.

 

North Carolina allows the arcane and silly defense of Contributory Negligence in negligence claims (car accidents, slip and falls, pharmacy errors, etc.).

Only 4 states and one District recognize this: NC, Maryland, Virginia, Alabama, and DC.  The fact that not many others follow this (not to mention that Alabama is on board with it) should probably clue us into the fact that it’s not a good thing, but what can I say?  The insurance lobby is strong in our state.  Alas.

What does Contributory Negligence mean?  I’m so glad you asked!

BLACK’S LAW DICTIONARY – Contributory Negligence = “The act or omission amount to want of ordinary care on part of complaining party, which , concurring with defendant’s negligence, is proximate cause of an injury…”

Lemme break it down with some simplified definitions:

Negligence: acting unreasonable (not acting as a reasonable person would in that situation) in light of what will keep everyone safe.

Contributory Negligence: when BOTH of you are acting unreasonable in those circumstances.

The effect of this doctrine is to completely bar recovery when the person complaining of the other person’s negligence was contributorily negligent.

Example: Night time, country road, you are walking WITH traffic, wearing black, on the road.  Other guy is speeding around a corner and whacks you. Other guy is probably negligent – speeding, not keeping a proper look out.  You might be negligent, too – dark clothing, on the road at night, wrong side of the road.

Both parties’ negligence might be a proximate cause of your resulting injuries.  If the judge or jury find both are negligent, neither can recover from the other. In NC, if you have an accident caused by some other party’s negligence, and the defendant claims contributory negligence (we say “contrib,” btw), and if the jury finds you even 1% at fault, you can’t get ANYTHING from the person who is 99% at fault.

Yeah, I know, sounds kinda iffy when you put it like that.  There are some situations where it makes sense, but there are many situations where it doesn’t.

THE VAST MAJORITY of states in our Union have a variation of Comparative Negligence, where under the previous example the person who was 1% at fault could get 99% of their damages from the other guy.  There are variations of this doctrine that we’ll talk about someday, maybe, if NC ever adopts one, but not today.

What’s the upshot?

Contrib is dangerous and can keep a deserving person from recovering.  Watch those tricky insurance companies!

In the meantime, if you have an injury claim, make sure you call me and I’ll do what I can to help.  Thanks for joining me again.

I have practiced personal injury law in Chapel Hill, North Carolina since 2001.  In that time I have worked on hundreds of cases involving automobiles and other automobiles, automobiles and pedestrians, and automobiles and bicycles, automobiles and horses; you name a combination of conveyances, and I have probably seen a case that dealt with that.

Automobile v. bicycle cases can be particularly challenging.  Given the physics involved the injuries are often horrific. What’s more is that often the accidents result from one or more of the parties involved simply not knowing their rights and responsibilities while driving/riding.    Add that to the fact that insurance companies tend to use everything an injured person says against them to limit their recovery, and these cases can get ugly really quickly.

All of that being said, I thought the public, particularly the bike-riding public, but also anyone who drives a car, would benefit from a brief and simple explanation of North Carolina statutes regarding bicycle operation and safety on our roads.  Ideally, this will help everyone avoid future accidents and keep all of us safer.   Of course, the reality is that accidents will still happen, and that being the case I hope that injured victims can use the information found herein to protect themselves and their claims against insurance company depredations, and maybe, just maybe, make that entire experience a little less painful.

I hope that everyone finds this information helpful, and maybe interesting.  Read on

1. Where to ride?

Where should you ride on the street? On the right side of the road, as far over to the right as possible.  If there are two lanes, you have to be in the far right lane, and as close to the shoulder as is practical.

There are a few exceptions to this:  If you are passing another vehicle, avoiding a dangerous obstruction, riding on a one way street, or preparing for a left turn, then you can deviate as necessary.   The rule of thumb should be ride on the right side of the road in the direction of traffic (not against traffic).

 

2. What signs do you have to heed while riding a bicycle on the road?

All of ‘em!  Bicyclist when riding on the roads have the same rights AND responsibilities (we tend to remember the former, but forget the latter) while operating their conveyances on the road.

That means you have to stop at Stop Signs.  You also have to stop at Stop Lights. Here’s a big one – just because you stop, doesn’t mean you can then go before the light turns green!  You have to stop and remained stop until the light turns green – just like a car – when you stop at a Stop Light.  The exceptions to this duty to remain stopped are when a) you can safely turn on red, and b) you are stopped at a flashing red light (as opposed to a steady red light).

With Green Lights, you once again have the same duties as a car driver.  You can proceed, but you should still not assume you can proceed without keeping a proper lookout and making sure it’s safe.  This can be a HUGE issue with civil claims, so keep a proper lookout and proceed with caution.

In summary, if there is a sign that drivers have to obey, bicyclists should obey it, too.

3. How to make turns safely and legally.

When making a right hand turn, you should be as far to the right in the road as possible.  When making a left hand turn, you should use the far left lane for that direction of travel, and use the designated left turn lane if there is one.

Bicyclists must signal their turns and stops using hand signals (you know what these are, and if you don’t, you can see how they are described in the statutes at Chapter 20-154(b)) or mechanical signals if they have them.  This should be done at least 100 feet before the turn is made.  Bicyclists must also give clearly audible signals to any pedestrian that might be affected by the desired action.

Essentially, if you want to ride on the roads, you must follow the same rules that drivers do.  At an intersection not controlled by a light you should yield to the vehicle on the right.  When making a left turn yield to vehicles coming in the opposite direction.

 

4. Where can you race bicycles legally?

Where is it legal to race? You shouldn’t!  NC law prohibits bicycle races unless they are organized under the law.  Here is a website you can look at if you are interested in setting up a race, but otherwise, don’t do it! http://www.ncdot.org/transit/bicycle/events/events_racing.html

 

5. Safety Gear Requirements

What kind of safety gear must you use when riding a bike on the road?   All riders under 16 are required to wear an approved helmet secured with a strap (and all riders, regardless of age, are urged to do the same).  See the statutes for what “approved” means. You are probably OK if you are satisfied with the certifications on the helmet packaging.  Check the statute if you are in doubt!

Passengers under 40 inches in height or 40 pounds in weight must be secured in a separate seat where they are upright.  Passengers under 16 must be seated on a saddle at minimum.

…and just because mommy said you could doesn’t mean you aren’t breaking the law if you’re underage and not abiding by the rules!  Follow ‘em!  You’ll be glad you did.

6. Can you be convicted of Reckless Driving while riding a bicycle?

Yes!  And that’s a big deal.  That’s a misdemeanor that will go on your record, and it could open the door to punitive damages in a civil claim if you plead guilty to that charge and as a result of that behavior cause injury to others.

7. Bicycles and Pedestrians

Once again, think like a driver.  You must yield to pedestrians just as drivers must.  Pedestrians should only be crossing at marked crosswalks, or at unmarked ones at intersections not controlled by lights.  But essentially, if the pedestrian is in the road, you should attempt to yield.

8. What about passing vehicles?

If a car is stopped to allow a pedestrian to cross you may not pass that vehicle!  So anytime you approach a stopped vehicle, you should stop and check it’s legal to pass.

If you want to pass a vehicle, you should do so on the left at least two feet away from the vehicle, unless there is too much traffic (or other danger) to do so.   Bicyclists are subject to the same rules as motorists passing other vehicles, and should not pass at blocked rail road crossings or where there is signage/lines that indicate no passing allowed.

And if a vehicle is attempting to pass you it must be allowed.  Motorists are supposed to give you an audible signal, but once you are aware of the passing attempt, you should make it as safe and easy for the motorist as possible.

9. Crashes

In the event of a crash where motorists and/or bicyclists are aware that damage has been done to property or injuries sustained, law enforcement should be alerted and all parties to the accident should remain on the scene.

10. What’s the best attitude I can have while riding?

Always assume the other guy doesn’t know what he’s doing and doesn’t respect your right of way.  It’s better to be humble and safe, than legally right and dead.

Basic Primer on Dog Bite Claims in North Carolina

Dog bite claims in NC…wow!  That’s a pretty big topic to handle in a tiny blog post.  When writing in blog format, I’ve found it’s sort of a razor’s edge experience; it’s easy to do the topic a disservice by oversimplifying it, but it’s also easy to verbally vomit information all over a screen and overwhelm an audience.  Animal claims in general, and dog bite/attack claims specifically are a great example of this difficulty.  We’re talking about a huge amount of case law and some pretty complex legal issues.  But I want to write about it, so I’ll do my best to walk the edge…(please note there is a video version of this, too!)

There are essentially two paths down which you might pursue a dog bite claim in North Carolina:

• Vicious propensities
• General propensities

The elements for each are similar, but there are important, subtle differences.

VICIOUS PROPENSITIES

• Defendant was the owner or keeper of animal
• Animal caused injury/damage
• Animal was dangerous, vicious, mischievous, ferocious, OR one termed in law as possessing a vicious propensity
• Defendant had actual or constructive knowledge of the vicious prop, character, or habits of the animal

 

GENERAL PROPENSITIES

• Defendant was the owner/keeper (as bove)
• Animal caused injury/damage
• Animal’s conduct SHOULD reasonably have been anticipated by defendant
• Defendant failed to exercised due care to prevent injury done by such reasonably anticipated conduct by the animal

I know, SOOOO many things to discuss, but let’s just pick out a few points:

These claims are technically not  negligence claims.  In theory, we have “strict liability” for dog bite claims.  Strict liability means that if your dog bites someone, you’re liable.  Period.  Sadly, it’s not that simple.

If you have a dog that is famous for his dangerous, vicious, (etc., above) behavior, then that might get you into the strict liability realm.  In other words, if you know about that behavior history, and the dog does that behavior resulting in injury, then you are probably on the hook.  That’s about as close to strict liability as we come.

The Health director can label dangerous dogs, and that creates specific rules for them.  In other words, if your dog attacks someone and causes serious injury (there are specific guidelines about those injuries necessary for this result) then the Health Director might label that dog as dangerous. The upshot of that is that gets you in the vicious propensities angle of attack.

In terms of the general propensities angle, the “reasonable person” standard is used to analyze the anticipated conduct and the injury caused thereby.  In other words, like a negligence claim, the judge/jury/finder of fact has to determine if a reasonable person would have anticipated the complained-of conduct and the injury that that conduct my cause.

For example: You might have a dog that jumps on people all the time.  He’s sweet and just licks people in the face, but he’s 100 lbs and is still subject to the laws of physics.   He knocks someone down and causes injury.  Well, we might argue that a “reasonable person” would anticipate that that sort of conduct would cause that injury, so as long as you were aware of that general propensity of being big and jumping on people, and a reasonable person would have anticipated this, then that claim might be viable.

Another interesting point of case law is that notice of dangerousness and propensities is imputed from owner to keeper and vice versa.  So if you are a dog sitter, watch out!  You might be on the hook even if you don’t know about this mutt.

Some other general information:

City’s can, but don’t have to, have more strict rules about keeping dogs confined, even “non-dangerous” ones.

 

Punitive damages can be available for dog bite claims!  As always, you have to prove liability first, then you  have to show malice or willful/wanton conduct.  Those damages are limited to3x compensatory OR $250k, whichever is greater.  That could make a huge difference in your case, and it’s worth exploring.

That was A LOT of stuff, I know.  Maybe in future posts I can go into more detail on some of those points, or maybe explore some other issues I didn’t have space to in here.  Anyway, I hope you find it useful.

Be safe!

 

Greetings, law fans! This little blog post is about the Burden of Proof in North Carolina civil claims (more particularly, auto injury claims).  This one is interesting because it has a few layers.

First, what does “burden of proof” mean in general?

Second, what is our burden of proof in NC personal injury law?

There is no Black’s Law Dictionary entry for Burden of Proof in general, so let me summarize…

Having the “burden of proof” means it is one parties’ responsibility to prove his case; it is not the other party’s responsibility to disprove the claimant’s case.

In NC injury law, as in most civil cases in America, the plaintiff (that’s the person who says he was injured by the other guy) has the burden of proof.  This means that means the plaintiff has to prove he was injured and is owed by the other guy.  The other guy (the defendant) has no burden of proof (in general), and if the plaintiff fails to meet his burden of proof, the defendant cannot be found liable.

Easy enough right? But what is our burden of proof in NC civil claims?  In other words, how  to we meet that burden of proving our case?   It is a standard known as “preponderance of evidence.”  Here’s a little snippet of the standard definition:

Black’s Law Dictionary: “as standard of proof in civil cases, is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it…”

 

In typical BLD fashion, that just makes it more confusing, right?

Let me break it down:

In order to prove your case, you must present evidence that beats any evidence against it.  By how much must it beat the other evidence?  Just a smidge!  The “greater weight” referred to in Black’s is just that…greater weight.  As long as you beat the other guy’s evidence by a smidge, a hair, a nose, or whatever you want to call it – as long as it is greater, you can win.  Later in BLD’s three paragraph definition, it states: “It is that degree of proof which is more probable than not.”  Now THAT makes it more clear!

EXAMPLE

• You have to prove your injury was caused by the defendant’s negligence
• Your doctor has to testify, generally, as to his opinion of that causation.
• In order for you to have a chance, the doc has to state that it is his opinion that it is “more likely than not” that your injury was caused by your accident.
• The doc DOES NOT have to say that it is was definitively caused by the accident

 

This issue hangs up a lot of people, because they see crime shows and they hear, “beyond a shadow of a doubt” as a measuring stick.  WE ONLY USE THAT STANDARD IN CRIMINAL CASES; WE DO NOT USE THAT STANDARD IN CIVIL CASES.

This is how OJ was able to be acquitted of the criminal charge of killing those folks, but found liable civilly for killing them; there was a different (lower) burden of proof for the civil claim which was more easily met.

Interesting stuff, huh?  Aren’t you glad you aren’t an attorney? Thanks for joining me again.  I hope you learned something useful.