He Who Complaineth Shall Go Without

You purchase a product or service and are not satisfied so you decide to complain. Isn’t this your right especially if you are paying your hard-earned money? If you complain you would hope the company would acknowledge your complaint, discuss it with you, and arrive at a resolution to keep your business and keep you satisfied. Well, one company decided they had enough of one consumer’s complaints and cut off his accrued benefits. Don’t believe me? Read on…

In Northwest Inc. v. Ginsburg (12-462) the consumer is a rabbi who frequently traveled on Delta Airlines (which has since been gobbled up by Northwest Airlines) thereby racking up thousands of frequent flyer miles. Unfortunately, he had several not-so-friendly experiences while flying the friendly skies including multiple incidents of his baggage showing up late at the baggage carousel. Having been victimized at the baggage carousel myself (although in my case the missing bag was due to a mixup by another passenger and not the airline’s fault; the airline I flew did an outstanding job to locate and recover my bag and deliver it to my hotel room before my return flight to North Carolina) I can understand the feeling of not seeing one’s bag(s). After receiving what it believed to be too many complaints from one customer, Northwest terminated the rabbi’s membership in the WorldPerks Platinum Elite program. The rabbi sued in federal court in San Diego in 2009 and the case has now arrived at the United States Supreme Court where the nine Justices will have to determine if federal law (i.e., deregulation of airlines) prevents a consumer from suing an airline for common law contract claims such as breach of contract or breach of the implied covenant of fair dealing.

Last month attorneys for the parties argued the case before the nine Justices and a ruling is expecting in Spring 2014. The result could greatly impact the airline industry and is worth watching. In recent years the Court has decided several cases of significance to consumers and the companies with whom they do business. Let’s hope this one results in a win for the consumer and, for lack of a better term at the moment, the right to complain and obtain relief.

John T. O’Neal is a practicing attorney in Greensboro, NC who focuses his practice in Personal Injury/Wrongful Death, Consumer Law (includes Auto Dealer Fraud/Vehicle Issues and Debt Defense Lemon Law), and various types of Civil Litigation. A long-time NCAJ member, he is a former Chair of the NCAJ Consumer Areas of Practice Section and a two-time Ebby Award winner.

NCAJ Members’ Food Bank Drive A Success: Almost 12,000 pounds of food donated!

Over one million North Carolinians live in poverty and 1 in 4 children in this state are food insecure*.

Food banks play a vital role in serving the community and NCAJ members have been honored to help by supporting the NCAJ New Lawyers Division’s Food Bank Drive.

NCAJ members donated 11,651 pounds of food and $8,279 to support 11 food banks across the state this holiday season!!

The receiving food banks included the Food Bank of Eastern & Central North Carolina; Manna Food Bank of Northwest North Carolina in Asheville; Second Harvest Food Bank of Metrolina and Northwest North Carolina; Community Soup Kitchen in Goldsboro; Hope Mission in Morehead City; Martha’s Mission in Morehead City; Hope Station in Wilson; Operation Inasmuch in Fayetteville; Christian United Outreach Center in Sanford; and Food Pantry at Millbrook United Methodist Church in Raleigh.

Several of the participating law firms have extended their drive through the end of December, which will increase our tally even more!!! See below for a list of law firms that made this drive a great success:

Food Drive Coordinator: Jessica Leaven, Grimes Teich Anderson, 535 College Street
Host Law Firm: Fisher Stark Cash Attorneys, 35 North Market Street
Host Law Firm: John Hensley Law, 366 Merrimon Avenue
Host Law Firm: Devereaux and Banzhoff, 22 S. Pack Square Suite 1100
Host Law Firm: Rhonda Moorefield, 1 Oak Plaza Suite 301
Host Law Firm: Grimes Teich Anderson LLP, 535 College Street
Host Law Firm: James Minick,107 Merrimon Avenue Suite 110
Other: Buncombe County Courthouse

Food Drive Coordinator: Touissant Romain, 700 East 4th Street, Suite 400
Host Law Firm: Mike Daisley, 2412 Arty Avenue
Host Law Firm: Bill Powers, 2412 Arty Avenue
Host Law Firm: George Piemonte, 2828 Queen City Drive Suite E
Host Law Firm: Rawls Scheer Foster Mingo & Culp 1011 E. Moorehead St. Suite 300
Host Law Firm: Law Offices of Michael A. DeMayo 1211 E. Moorehead St.
Host Law Firm: The Sumwalt Law Firm 1114 E. Boulevard
Host Law Firm: The Odom Firm 1109 Greenwood Cliff
Host Law Firm: Tin Fulton Walker & Owen 301 East Park Avenue
Host Law Firm: Marcari Russotto Spencer Balaban 15800 John J. Delaney Drive Suite 350

Host Law Firm: Baker, Billick, P.A., 135 Union Street South

Host Law Firm: Graham-Davis Law Firm 4015 University Drive Suite 203
Host Law Firm: Frasier & Griffin The Chancellor Building 100 East Parrish Street Suite 350
Host Law Firm: Judith Romanowski. Lynn Fontana, Faith Herndon 115 E. Main St.
Host Law Firm: Host Law Firm: Marcari Russotto Spencer Balaban 5003 Southpark Drive Suite 200

Host Law Firm: Law Offices of Wade Byrd 232 Person St.
Host Law Firm: Marcari Russotto Spencer Balaban 225 Ray Avenue Suite 165

Host Law Firm: James Minick, Attorney at Law 355 S. new Hope Road Suite D

Host Law Firm: Barber Law, 102-B South William Street
Host Law Firm: Everett Womble Lawrence 507-B N. Spence Avenue

Host Law Firm: Oxner, Thomas & Permar, PLLC 1155 Revolution Mill Drive, Studio 4
Host Law Firm: Clifford Clendenin & O’Hale 415 Friendly Avenue

Food Drive Coordinator: Shannon Penland Pitt County Public Defenders Office
Host Law Firm: Ricci Law Firm 2839 Charles Blvd
Host Law Firm: The Leon Law Firm 704 Cromwell Drive Ste. E
Host Law Firm: Lawyers East 110 East Arlington Blvd
Host Law Firm: Dawson & Albritton 1516 Freenville Blvd SE
Host Law Firm: The Law Offices of Ghita Harris 321 Evans Street Suite 105

Host Law Firm: Law Offices of Jason E. Taylor, PC, 120 3rd Street Northeast

Host Law Firm: Steffan & Associates, 2411 Old NC 86, Hillsborough

Host Law Firm: Law Offices of J. Calvin Cunningham 18 S. Main Street

Host Law Firm: Taylor & Taylor 610 Arendell Street

Food Drive Coordinator: Laura Jenkins Law Offices 178 Mine Lake Court Suite 100
Food Drive Coordinator: Leone Noble & Seate 7100 Six Forks Road Suite 201
Host Law Firm: Henson Fuerst, P.A., 2501 Blue Ridge Road
Host Law Firm: Abrams & Abrams, 1526 Glenwood
Host Law Firm: Whitley Law Firm 2424 Glenwood Avenue Suite 201
Host Law Firm: Leone Noble & Seate 7100 Six Forks Road Suite 201
Host Law Firm: Everett Gaskins Hancock 220 Fayetteville Street Suite 300
Host Law Firm: Joe Knott, Sanford Thompson, Berger & Miller 4800 Six Forks Road Suite 100
Host Law Firm: Martin & Jones 410 Glenwood Avenue Suite 200
Other Donation Location: NCAJ HQ, 1312 Annapolis Drive

Host Law Firm: Whitaker Law Office 1600 S. Elm Street

Host Law Firm: Daggett Shuler Attorneys At Law, 2140 Country Club Road
Host Law Firm: Kevin Morton 1604 W. First Street (Corner of 1st and Cloverdale)
Other: Legal Aid of North Carolina Inc. 102 W. 3rd Street Suite 460

Host Law Firm: Narron & Holdford, 204 N. Tarboro Street Wilson

Food Drive Coordinator: Stewart Poisson, Poisson, Poisson & Bower
Food Drive Coordinator: Esther Sanchez Martin and Jones
Host Law Firm: Poisson, Poisson & Bower PLLC, 107A North 2nd Street
Host Law Firm: Law Offices of James Gillespie 415 Chestnut Street
Host Law Firm: Law Offices of Michael Davenport 2505 College Road
Host Law Firm: Shipman and Wright 575 Military Cut Off Road Suite 106
Host Law Firm: Rountree Losee 2419 Market Street
Other: Financial Protection Law Center, 272 North Front Street, Suite 342
Other: New Hannover Public Defender Office, 414 Chestnut Street

*Food Hardship in America 2012 report from the Food Research and Action Center.

Finishing Up your Holiday Shopping? Avoid Unsafe Children’s Toys!!

The U.S. PIRG Education Fund, which conducts research on behalf of consumers and the public interest, has published its 28th annual survey of toy safety, Trouble in Toyland, which is a must-read for those finishing up their holiday shopping for the little ones in their lives. In this report, U.S. PIRG provides safety guidelines when purchasing toys for small children and provides examples of toys currently on store shelves that may pose potential safety hazards.

For example, magnet toys made with neodymium iron boron magnets, such as the Buckyball magnets, make the list of potentially dangerous gifts because they can be accidentally swallowed. The magnets are so strong that if more than one is swallowed, they do not pass through a child’s digestive system. Instead, the balls can pull the intestines into loops, punch holes in the intestinal wall, and cause abscesses and infections in internal organs, according to Dr. Bryan Rudolph, an assistant professor of pediatric gastroenterology at the Children’s Hospital at Montefiore, part of the Albert Einstein College of Medicine in New York City.

Read this report before going to the mall this holiday season.

The Fine Print: What You Need to Know About Forced Arbitration on Consumers

Important Message from Linda Lipsen, CEO of the American Association for Justice, published on Oct 24:

This week the American Association for Justice released a new report on forced arbitration called License to Steal: How the U.S. Chamber Forced Arbitration on America.  The U.S. Chamber’s legal “reform” front group — the Institute for Legal Reform (ILR) — has been at the heart of a massive campaign to eliminate corporate accountability,  even in cases involving huge violations of state and federal law. For decades, this strategy has primarily revolved around high profile PR campaigns to portray the civil justice  system as swamped by frivolous lawsuits. But where a billion-dollar tort “reform” campaign has not succeeded in closing the courthouse door, forced arbitration has been used  with increasing frequency to shield corporations from accountability and replace the courthouse altogether.

Outraged?  Read AAJ’s full report on how forced arbitration clauses are routinely buried in the fine print of contracts and abolish many of the safeguards the civil justice system provides.

We urge all consumers to protect their rights by asking Congress to support the Arbitration Fairness Act (S.878 / H.R.1844).   Get your voice heard today!

The NC Advocates for Justice is a member of the American Association for Justice; both are committed to advocacy that will preserve the rights of consumers across America.  

Ban Tractor Trailer Truck Drivers Texting on NC Roads Now!

ruth smith blog tractor trailer texting

By now, it is common knowledge that texting while operating a motor vehicle is inherently dangerous. According to the National Highway Traffic Safety Administration, in 2010, distraction was the cause of 18% of all fatal crashes. In a 2009 study, the Virginia Tech Transportation Institute found that text messaging creates a crash risk 23.2 times worse than driving while not distracted for heavy vehicles or trucks (i.e. tractor trailers). The study further found that texting while driving also has the longest duration of eyes-off-the road time. In its conclusion, the VTTI study recommended that texting be banned in all moving vehicles.

In NC, it is illegal for drivers of passenger cars, pick up trucks, and motorcycles to drive while texting. Unfortunately, pursuant to NCGS 20-137.4A, it is legal for the driver of a tractor trailer truck to text while driving as long as the driver is texting on a company texting (dispatch system) machine.

These “dispatch system” devices usually resemble laptop computers or tablets, which are mounted directly on the dashboard and beside the steering wheel of the truck at eye-level to the driver. The “dispatches” contain messages to and from the driver regarding various topics including arrival times, load information, and even offers of additional employment (loads) available to drivers. The devices allow for the driver to both read incoming text messages and type outgoing messages while driving. The text messages can be several paragraphs (or screens) in length, and take considerable time to read.

A tractor trailer traveling at 60 mph travels 88 feet per second, and in 3.5 seconds it will travel a distance the equivalent of an entire football field. The VTTI study estimated that the average text message takes 4.6 seconds of eyes-off-the-road time.

Further, tractor trailers can legally carry loads of up to 80,000lbs[1] giving them a high potential for catastrophic destruction. By contrast, a typical SUV (2013 Honda CRV) weighs only 3,305 lbs.[2]

This texting while driving has tragic results. On July 1, 2008, Mr. Carroll Jett, a truck driver for Coretrans Trucking, was traveling on Interstate 40 in Buncombe County traveling at approximately 60 mph. Inside Mr. Jett’s truck was a “dispatching system” device which allowed Mr. Jett to read text messages while driving. As Mr. Jett approached east Asheville, he received a text message on his “dispatch system” relating to an offer to pick up additional loads. Mr. Jett chose to read the message, as it was perfectly legal to do so under NC law. He diverted his eyes from the road for approximately 4-7 seconds. Meanwhile, traffic on the interstate had slowed due to a lane closure. Mr. Jett did not view the road closure signs or the stopped traffic; his eyes were on the dispatching system. Mr. Jett never hit the brakes before plowing into the line of cars in front of him at 60 mph. In the first car, an SUV, a family from Marion, NC was traveling to Asheville for a doctor’s appointment. A three (3) year old boy was seated in his car seat in the back of the SUV. The SUV was demolished. The boy survived, but has permanent and severe brain damage. In the next car, an 18 month old boy was sitting in his car seat in a car driven by his aunt. This vehicle also was demolished. As a result, this child never saw his 2nd birthday. Mr. Jett later explained to investigators and later, in his deposition, that the text messaging device was the reason he never saw the vehicles in front of him.

North Carolina motorists are currently at risk, a grave risk, due to tractor trailer driver texting. Tractor trailers can weigh 26 times more than a passenger car, yet current law allows them to use mobile texting devices. That contradiction in the current law is dumbfounding. Although the devices might make trucking more profitable for trucking companies, they do so at the great cost of highway safety. North Carolina is crisscrossed by no less than 4 major interstates, and our motorists must share the road with tractor trailer companies using our highways on a daily basis. If this practice is allowed to continue, more tragedies will occur.

Therefore, NCGS20-137.4 should be amended to ban the practice of texting while driving by tractor trailer truckers.

[1]23 CFR 658.17

Ruth Smith is a dedicated trial lawyer in Asheville, NC with over 10 years of experience representing clients in both North and South Carolina. She focuses her practice in Personal Injury, Car Accidents, Social Security Disability, Workers’ Compensation and Dog Bite Injuries. She is a member of the North Carolina Advocates for Justice’s Auto Torts and Workers’ Compensation Sections and is a certified North Carolina Court Mediator. For more information, visit http://mywncattorney.com/.

Laura’s Law – Is it Working?

In an effort to address DWI related fatalities, Tim Moore (R, Cleveland) championed House Bill 49 entitled Laura’s Law. Enjoying near unanimous, bipartisan support, it flew through both houses of the General Assembly and was quickly signed into law. Massive changes to the DWI laws in North Carolina went into effect on December 1, 2011. Now more than a year later, Representative Moore, Bill Powers and John Landreth, all attorneys, together with Dave Sloan of the Charlotte-Mecklenburg Police Department and Senior Officer Tony Chesser of the Alcohol Beverage Control, comment on whether the law has accomplished its intended purposes. To view their full interview, read “Laura’s Law: A Year Later – Is It Working?” by Rep. Tim Moore & DWI Defense Attorneys Bill Powers & John Landreth.

Symposium on Equal Rights on May 3 in Greensboro – Law Day 2013

In commemoration of the 150th anniversary of the issuance of the Emancipation Proclamation and the 50th anniversary of Rev. Dr. Martin Luther King Jr.’s ‘I Have a Dream’ speech, the American Bar Association chose Realizing the Dream: Equality for All as its 2013 Law Day theme. The members of the NC Advocates for Justice (NCAJ) legal association are dedicated to protecting the rights of all North Carolinians. On May 3, NCAJ will be hosting a full-day, free symposium on equal rights consistent with the ABA theme. This event is co-sponsored by the International Civil Rights Center and Museum in Greensboro and will be held at the museum.

The May 3 event entitled Realizing the Dream: The Elusive Quest for Equality and Fairness in America will provide an opportunity to explore the civil and human rights movements in America and their impact on promoting the ideal of equality for all. Presentations begin at 9:00 am, to be followed by an afternoon reception. Speakers to include:

-Historian David Cecelski: “The Fire of Freedom: Abraham Galloway and the Slaves’ Civil War”
-UNC Law Professor Gene Nichol: “Lincoln, King, and the Challenge of Equal Justice”
-Attorney Anita Earls and Bob Hall: “Voting Rights Under Attack, Past and Present”
-Panel Discussion moderated by attorney Lewis Pitts; Panelists: Attorneys Keith Howard and Mark Dorosin, and Deena Hayes-Greene: “Causes, Consequences, and Elimination of the School to Prison Pipeline”
-Attorney James E. Ferguson II: “Litigating Race in North Carolina – A Retrospective”
-Panel Discussion moderated by attorney Malcolm Hunter; Panelists: Judge Lou Trosch Jr., Judge Gregory Weeks, and Dr. Seth Kotch: “Racialized Mass Incarceration and It’s Impact on Equal Justice”
-Reverend Dr. William J. Barber II: “Recovering a Noble Principle: Equal Protection Under the Law”
-Attorney Karen Bethea- Shields (Galloway) and Historian Dr. Gena Rae McNeil: “State v. Joan Little - Defending Black Womanhood from Racialized Sexual Violence Through Advocacy and Activism”
For more information or to register for this event, please contact michelle@ncaj.com