Accidents involving a common carrier

Most Cary residents have been on a bus, in a taxi or on a plane. These transportation options are all considered “common carriers”. But what are common carriers and what duty do they have to their passengers?

A common carrier is an entity whose business is to move people from one location to another for a fee. These can include buses, trains, boats, planes or taxis. If a passenger is injured on one of these vehicles, the company may be liable. Most transportation companies have to follow government regulations when offering their services to the public. They are required to have the highest degree of safety for their passengers. A carrier can be held liable for injuries sustained by a passenger if they failed to follow an established regulation or did not exercise with care and diligence.

If a person is injured on a carrier, there are a number of things they need to prove in order to hold the carrier at fault. First, they need to show that the carrier owed the passenger a duty and that they breached that duty. In addition, the breach of duty then caused the passenger’s injury and if that breach of duty did not occur then the passenger would not have been injured. Finally, the passenger needs to show that they suffered damages in the form of an injury, emotional distress, loss of wages, etc.

If a person believes they were injured on a common carrier as the result of negligence of the carrier, they may want to speak with a legal professional skilled in personal injury. An attorney has the legal expertise necessary to understand what is needed to prove their client’s case. There are many sources of evidence a passenger may use to prove their case. Evidence may include witness reports, expert witness testimony, inspection reports, and videos or pictures. An attorney can gather this evidence and help ensure their client receives the compensation they deserve.

Source: injury.findlaw.com, “What is a common carrier?,” accessed on July 15, 2017

This post was authored by The Law Offices of John M. McCabe, P.A. in Cary, North Carolina ~  Dependable & Aggressive Lawyers Serving All Of North Carolina.   Since 1994, injury victims in the Raleigh area have been able to count on The Law Offices of John M. McCabe, P.A. to pursue the compensation and benefits they deserve in personal injury and workers’ compensation cases.  Whether you were injured in a car accident, on-the-job accident, dog bite, or as a result of a defective product, they will go to bat for the outcome you deserve. To schedule a free initial consultation with an attorney from their firm, please call  919-899-9852 or toll free at 877-320-1851. Their firm has been given the highest ratings for their legal skills and ethics, including being named a Super Lawyer, one of the Best Lawyers in America and one of the top trial lawyers in North Carolina.

The Defendant in Your Case Wants Your Private Information

After you are wronged or badly injured, your health, your money, and your future may all be at stake. You try to do all you can to recover from a bad situation that is not your fault. You fight your fear and call us for help. Then your lawsuit is finally filed and you can begin to think that this important situation might someday come to an end.

Then you receive questions sent by the defendant. We tell you to answer them to the best of your ability. You look at the questions in disbelief. You see that the defendant has asked for information that your co-workers, your friends, or maybe even your mother might not even guess about you!

If you receive these questions, then your case is in discovery. This is the pre-trial procedure that allows you and the defendant to exchange information and evidence in a formal way. We also serve the defendant with discovery. You may see the some of the following types of discovery in your claim:

  • Interrogatories: questions that require written answers.
  • Requests for production: ask for documents that support your answers or are relevant to your claim, like medical records.
  • Depositions: oral questioning under oath
  • Requests for admission: ask to admit or deny statements
  • Subpoenas: ask for a person to produce documents or to testify
  • Requests for medical examinations

The most important rule in discovery is always the simplest one:  tell the truth. As in most things, remember what your parents told you – the truth is what matters. Telling a lie may mean that information that could have stayed out of court – because the other side is trying to catch any untruths or any missing information. They are looking for this because they want to make you look bad at trial.

Can they ask that? Most people are concerned because the questions ask for personal information. Sometimes that information could be:

  • Where you went to school
  • Where you have lived and worked
  • Your past injuries
  • Mental health and other medical treatment
  • Your criminal history and driving record
  • Past lawsuits and settlements
  • Your social media posts
  • Other subjects having to do with your claim

Your lawyer will object and not answer certain questions. Some information is too far in the past to matter and some you may not recall. Some information is simply too much to have to provide, or could even be information that the defendant already has. And you won’t have to provide information that is just between you and your lawyer! That information is privileged. But you should provide all the information you can, even when you think it is not important or none of the defendant’s business.

Rest assured that at every step in discovery we are there to answer your questions. We will be there to help pull information together, to request records, and to prepare you for what is to come. But your lawyer cannot answer the defendant’s questions for you. The answers must be your own.

Copeley Johnson & Groninger PLLC is a law firm focused on representing individuals and their family members who find themselves in circumstances that they never expected.  Their clients include those who have been injured on the job, on the road, and on the premises of businesses and public facilities.  They also help those whose employers have violated their legal rights.  For more on this firm, visit http://www.cjglawfirm.com or call (919) 240-4054.

Navigating the Postconviction Innocence Process

If you or someone you know has been convicted of a felony in North Carolina, but are innocent of the crime, there are two avenues to pursue in the state court system to have your claim evaluated and potentially litigated: by filing a motion for appropriate relief (MAR) in Superior Court or by pursuing relief through the North Carolina Innocence Inquiry Commission (Commission) process.  Before doing either, it is important that you consult an attorney.

In 2006, the Commission was established to investigate postconviction innocence claims that could not be adequately addressed through the traditional postconviction process.  The statute that governs the Commission process can be found here and provides an opportunity for judicial review of cases where evidence of innocence might otherwise be blocked from review because of procedural bars.  It also gives power to an independent State agency to look for evidence that has been declared lost or destroyed.  The Commission staff has been able to find evidence in numerous cases where law enforcement or prosecution stated that the very same evidence could not be located.  This power is critical because oftentimes analysis of physical evidence is the only avenue one can pursue to prove innocence.

It is extremely important to understand that the Commission is a State agency, and its staff, including the attorneys who work there, never represent or advocate for any defendant.  They are merely a fact-finding agency.  Additionally, the Commission does not consider any constitutional claims such as due process violations or ineffective assistance of counsel—it only looks at evidence of innocence.

If you are innocent of the crime for which you were convicted, or believe someone else is, you can contact the North Carolina Center on Actual Innocence.  We have been investigating innocence claims and advocating for innocent men and women in North Carolina for 17 years.  We will evaluate your claim to determine the likelihood of obtaining relief in your case.  If you have a credible claim, we will help you determine whether filing an MAR or applying with the Commission is your best option.  If it is determined that your claim is best suited for the Commission, we can guide you through the process and be there to answer any questions you have along the way.

Cheryl Sullivan is the Senior Staff Attorney at the North Carolina Center on Actual Innocence.  The Center is a 501(c)(3) nonprofit located in Durham, North Carolina that identifies, investigates and litigates credible claims of innocence, obtaining justice for people imprisoned for crimes they did not commit, for the victims of those crimes, and for the actual perpetrators.

An Historic Effort and Righteous Results

When a post comes across the [email] listserv announcing a case-related win of any kind, it feels good to every criminal defense lawyer who is swinging the battle ax day in and day out.  We celebrate with congratulatory replies and if we see that winning attorney in court we high five her.  A win for one is a win for all, and the shared revelry helps each of us keep up the fight.

Over the past several years, many criminal defense section members have quietly secured big wins for federal inmates who were sent to prison during the War of Drugs from the 1980s to the 2000s.  That War, as we all now know, is uniquely responsible for our current reality of mass incarceration.  Former President Obama announced an unprecedented clemency initiative in 2014, focusing on those convicted of drug-related crimes who received crushing mandatory-minimum sentences.

In response to Obama’s initiative, several national bar associations organized and created the nationwide Clemency Project in 2014.  The American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the Federal and Community Public Defenders and the National Association of Criminal Defense Lawyers (NACDL) all took part in the project.  NCAJ is an affiliate of NACDL.

Calling America a “nation of second chances,” Obama commuted a total of 1,715 sentences by the time he left office.  NCAJ Criminal Defense section members Raymond Tarlton and Elliot Abrams, with the help of the Office of the Federal Public Defender in the Eastern District, successfully reduced the sentences of 6 people.

In one of Abrams’ cases, his client, Tony Taylor, had been sentenced to life in prison for a crack cocaine possession conviction.  Obama’s commutation reduced the sentence to 293 months.  While still an oppressive sentence, Taylor will see freedom in another 10 years.  “I never thought I’d get to see my daughter as a free man; now I will,” Taylor told Abrams.

Section member Jamie Lau, the supervising attorney at Duke’s Wrongful Conviction Clinic, took on several cases so that law students could assist in the clemency initiative.  One heart-swelling success was the case of James Burns, who in 2005 was sentenced to 235 months in prison for selling small amounts of crack cocaine.  Burns headed to federal prison with a release date of 2024.  He was a model prisoner, well-liked by fellow inmates and prison staff.  When his clemency petition was granted, Burns’ prison case manager told Lau that “Mr. Obama has picked himself a deserving one.”  Burns new release date is March 4, 2017.

Dozens of section members worked on petitions for clemency, many of which were not granted.  Even in the cases not granted, however, our members connected with federal inmates and established a relationship that showed, quite simply, that those behind bars are not forgotten.  While not a “win” in the traditional sense, a much-needed extension of compassion still provided hope and emotional sustenance for both the inmate and the attorney who reviewed the case.

The Clemency Project is now closed, but represented the best of what we can be as lawyers:  a diverse group of volunteers from the nation’s bar who together screened the cases of more than 36,000 federal prisoners who asked for assistance.  In total, the Project submitted 2,600 petitions, 705 which were granted.  Obama reinvigorated clemency, and our section members were a part of an extraordinary coalition who embraced Obama’s initiative that yielded results worth celebrating.

 Sonya Pfeiffer, VP of Membership and Chair of the NCAJ Criminal Defense Section, is a partner at Rudolf Widenhouse www.RudolfWidenhouse.com.  

Workers’ Compensation and Personal Injury – What is the Difference and Why Should I Care?

A workers’ compensation claim and a personal injury case are completely different things. If you have been injured it is important to understand which kind of case you have, or if maybe you have both, and the differences between the two.

Is the injury related to your job?

A worker who is injured on the job in NC may have a workers’ compensation claim. The injury must come from an accident that happens in the “course and scope” of the work. Not all workplace injuries are covered by workers’ compensation in North Carolina. Workers who develop an occupational disease in North Carolina may be covered by workers’ compensation if their employment put them at risk for the condition. The point is that to have a workers’ compensation case in NC the injury or medical condition must be related to your employment.

Personal injury cases on the other hand can happen anywhere and do not need to be related to your employment. Typical examples of personal injury cases include automobile accidents, slip and falls, and professional malpractice.

Was somebody else at fault?

With workers’ compensation, it does not matter who was at fault in causing the injury. An injured worker does not have to prove that the employer was at fault. In fact, an injured worker can receive workers’ compensation benefits in North Carolina even if the worker accidentally causes the injury. In workers’ compensation, fault does not matter as to whether the claim is valid or not.

In a personal injury claim the injured person must show that the person who caused the injury was “negligent.” Negligence means the breach of a legal duty of care resulting in an injury and damages. In other words, negligence is hurting someone because you are not being careful enough. (Although my law school torts professor would have disapproved of that definition.) In a personal injury case in North Carolina, if the injured person is partly at fault in causing the injury, his or her claim may be barred. This is called “contributory negligence.” In North Carolina, an injured person who contributes even 1% to his or her own injury may not be able to recover at all.

Who do you file your claim against?

If you are injured on the job in North Carolina, you should file your workers’ compensation claim against your employer’s workers’ compensation insurance company or workers’ compensation administrator. This claim will be handled by the North Carolina Industrial Commission. With very few exceptions you cannot file a lawsuit for a workplace injury against your employer in civil court, even if you were injured because of your employer’s carelessness. Again, in workers’ compensation cases fault does not matter. Your only option is to take your claim to the Industrial Commission. This is known as the “exclusive remedy” provision. The exclusive remedy rule also applies if you are hurt at work because of the carelessness of a co-worker. Again, you must file the claim with the Industrial Commission.

Deciding who to recover from in a personal injury claim is a little more complicated. You can seek to recover from the person or people whose lack of care caused your injuries. If you are injured in an automobile accident that is someone else’s fault, and that person was driving a vehicle owned by a family member, you may be able to recover from the vehicle owner. If the person who injured you was acting as an employee of a company you can also seek to recover against that company.

Where, when and how do you file your claim?

If you are injured on the job you must file your North Carolina workers’ compensation claim with the North Carolina Industrial Commission. In most cases, you must file your claim within two years. You should also give notice right away to your employer. The Industrial Commission is a government agency responsible for administering workers’ comp claims in North Carolina. The Industrial Commission decides disputes between injured workers and their employer’s workers’ compensation insurance company, including whether an injury or occupational disease is covered by workers’ comp, what medical treatment should be provided, and what wage replacement benefits are owed. The Industrial Commission also reviews all workers’ compensation settlements in North Carolina.

If you are injured because of someone’s carelessness and have a personal injury claim, you can file a lawsuit in civil court. In most cases, you have three years from the date of the injury to file your lawsuit, but there are many exceptions to this rule. Most claims can be filed in the county where you live or where one of the people you are suing lives. Your lawsuit, call a “complaint,” must be filed with the Clerk of Court and must be delivered to or “served” on each defendant. A judge will make decisions about who should be involved in the lawsuit, what evidence can be used, and when the case will be heard. You have the right to have your damages decided by a jury in a personal injury case.

What can you recover?

Workers’ compensation in North Carolina provides two benefits, medical treatment paid for by workers’ compensation for the injured body part, and workers’ compensation disability payments. Workers’ compensation does not pay pain and suffering or other types of damages.

If you have a personal injury case you may be able to recover a much broader range of damages, including past and future medical expenses and wage loss, as well as for pain and suffering.

Can you have both a workers’ compensation case and a personal injury claim?

If you are injured on the job through the carelessness of someone who is not an employer or co-worker, you may have both a workers’ compensation claim and a personal injury claim. You can and should pursue both. An example would be if you were injured in an automobile accident while on the job in North Carolina. The workers’ compensation insurance company may be able to recover money it pays on the workers’ compensation claim from the personal injury case so the cases must be carefully coordinated.

 

Kevin Bunn is a North Carolina workers’ compensation lawyer. He has practiced law in Cary, North Carolina, since 1993. Kevin is a Board Certified Expert in North Carolina Workers’ Compensation Law, a member of the North Carolina Industrial Commission’s Advisory Council, a past Chair of the NCAJ Workers’ Compensation Section, and serves on the NCAJ Board of Governors. For more information about Kevin and his law practice please visit ncworkercomp.com.

Generic vs. Branded Drugs – Yes, There Is A Difference When You Have a Drug Related Injury

Every day, millions of Americans have prescriptions filled with generic drugs. Because we have become so accustomed to generic drugs –  over 80% of prescriptions are filled using generics – we don’t give much thought to it.  In most circumstances, a doctor or pharmacist will tell you that there is no difference between the name brand drug or its generic equivalent.  However, your ability to recover for injuries caused by prescription drugs depends on whether you took the branded or generic version.

In 2011, the U.S. Supreme Court issued a ruling, Pliva v. Mensing, that effectively made generic drug makers not responsible for injuries to consumers. The most common theory for a products liability claim against a drug manufacturer is a failure to adequately warn of the drug’s side effects and risks.  These claims are brought under state laws that are stricter than FDA regulations and impose a duty on a manufacturer to change the label on a drug when they know of potential injuries.  A branded drug manufacturer has the ability under federal law (the FDA) to change their warning label whenever necessary.  But under federal law, the labeling and warnings on a generic drug must be identical to the named brand counterpart. Meaning, the warnings on a generic drug can only be changed if the warnings on the brand name drug are changed.  Since federal law usually preempts or overrules state laws, the Supreme Court said it would be “impossible for the [generic drug] manufacturer to comply with both their state law duty to change the label and their federal law duty to keep the label the same.”  Accordingly, plaintiffs cannot sue a generic drug manufacturer for failure to adequately warn of a drug’s side effects.

The FDA has been considering a rule that would allow generic drug manufacturers to independently update their warning labels.   Efforts to convince Congress to change the rules with legislation failed.  Until there is a change, many consumers will have no legal recourse against the manufacturers of the drugs that injure them.

 

Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.

Is it legal to wear headphones while driving in North Carolina?

Yes. Sort of.

Though delayed from its original release date in October 2016, Apple still advertises its much anticipated “Airpod” headphones for release in the beginning of 2017. The headphones are wireless and boast speakerphone capability in its signature ‘pod’ design with competitive sound quality and comfort. Apple lists the headphones at a retail price of $169.00, a price well in excess of its current wired version, but one on par with, or cheaper than, many headphones in the Airpod’s prospective class.

In anticipation of their release, I felt it helpful to answer a question I often receive at the various dinner parties I’m invited to and attend (just kidding, I’m not that cool): Is it legal to wear headphones while driving? In North Carolina, the short answer is that yes, it is legal to wear headphones while driving. Many states in the nation have laws that regulate a driver’s ability to wear headphones while driving – and many more ban it outright. North Carolina is not one of them.

The reasons for banning the headphones are obvious, chief among them is that they substantially interfere with a driver’s ability to hear and respond to emergency sirens or other roadway emergencies that arise while driving. That is why in California it is legal to listen to music in headphones while driving as long as only one pod is in the driver’s ear and the other ear is open to hear and respond to emergency situations.

While no law in North Carolina specifically prohibits the use of headphones while driving, that does not mean drivers in the state can use them with impunity. For one thing, it should be noted that if any driver intends to travel beyond the jurisdiction of North Carolina, it may or may not be legal in the bordering state. (South Carolina – legal; Tennessee – legal; Georgia – illegal; Virginia – illegal). For another, and perhaps more salient thing, the effect of wearing headphones may cause a driver to violate already existing traffic laws in North Carolina.

To extrapolate on the above-contemplated scenario, if a driver in North Carolina cannot hear emergency sirens, and fails to react according to specific statutory directions to allow an emergency vehicle to pass, that is against the law in North Carolina.

N.C.G.S. § 20-157 sets forth as follows: Upon the approach of any law enforcement or fire department vehicle or public or private ambulance or rescue squad emergency service vehicle, or a vehicle operated by the Division of Marine Fisheries of the Department of Environmental Quality, or the Division of Parks and Recreation of the Department of Natural and Cultural Resources, or the North Carolina Forest Service of the Department of Agriculture and Consumer Services when traveling in response to a fire alarm or other emergency response purpose, giving warning signal by appropriate light and by audible bell, siren or exhaust whistle, audible under normal conditions from a distance not less than 1000 feet, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, clear of any intersection of streets or highways, and shall stop and remain in such position unless otherwise directed by a law enforcement or traffic officer until the law enforcement or fire department vehicle, or the vehicle operated,” by the state shall pass. [Emphasis Added].

A driver with headphones in runs a real risk of not being able to hear the emergency vehicle within 1,000 ft under normal auditory conditions, as the headphones would certainly move the condition from the realm of normal to abnormal. It puts a lot of faith in visual clues. Not only is a violation of the above-cited subsection a Class 2 Misdemeanor, it is also negligence per se, so apart from criminal culpability expected from its violation, it can also threaten to create significant civil liability should any injury happen as a result of the driver’s failure to follow the statute’s directions for oncoming emergency personnel.

What if injury does happen as a result? Well, that makes it a Class 1 Misdemeanor. Serious injury or death? That’s a felony.

As is often the case in the law, the short answer is very rarely the complete one. While no law specifically prohibits the use of headphones while driving in North Carolina, their use can substantially interfere with a driver’s ability to comply with already existing traffic laws the violation of which gives way to serious consequences.

 

Taylor Hastings is an attorney from Chapel Hill, North Carolina; his practice focuses on criminal defense and civil litigation. In 2014, he started Hastings Law & Counsel, PLLC, a law firm that provides legal assistance throughout the triangle in state and federal court. Please visit www.hastingsnclaw.com to learn more or call 919-913-4701 for specific answers to legal issues.