South Carolina Personal Injury Law Blog

Family Agrees to County's Settlement in Death of Teen at State Boot Camp

The family of a teenager who died after being roughed up by guards at a state-supervised boot camp have agreed to a $2.4 million settlement from Bay County, Florida.  The family had originally sued for $40 million, but will be receiving a total of $7.4 million, of which $5 million is being fast-tracked through the legislature.

A report said seven guards at the sheriff's boot camp in Panama City, engaged in "abusive and inhumane" behavior when they struck the teen with fists and knees, knocked him to the ground, and held ammonia capsules under his nose.  The guards and a nurse who watched have been charged with manslaughter. All pleaded not guilty last month. They face up to 30 years in prison if convicted.

Source:  "$2.4M Settlement in Fla. Boot Camp Death" by Brent Kallestad, publishd at Forbes.com.

Other Aspects of Product Liability Cases

In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances. This can take the form of negligence in drawing up or reviewing plans for a product, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.

A breach of warranty claim arises under the law of contracts, where the law imposes certain "implied warranties" on the sale of goods. Such warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person�s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated. If a product does not meet these standards, the purchaser may have the right to return it and get back the purchase price, or sometimes to receive monetary damages. The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantibility in the sales of goods §§ 2-314 and 2-315.

In product liability cases it is essential that measures be taken promptly to preserve evidence, document the chain of custody of the product in question, and to enable engineers or other expert witnesses to thoroughly evaluate the product and your injuries.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Day Care Faces Lawsuit Over Child's Fatal Heat Stroke

A woman filed a $5 million lawsuit against a Texas daycare after her 4-year-old son died of heat stroke while under their care. According to the lawsuit, the center violated the child's rights by failing to provide a safe environment in the state-licensed daycare. Investigators charged the center with reckless injury to a child.

Source:  "Mother Sues State in Child's Day-Care Death" published in The Dallas Morning News.

Strict Liability Cases

Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even without negligence or other fault. Strict liability means "liability without fault," therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm. The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A typical example of this type of activity is the use of explosives - if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.

Strict liability is also often imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective , regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it. As such, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that:

• a defect in the product caused the accident
• he or she was using the product in a manner consistent with the way it was meant to be used
• the product was not substantially changed between the time it left the seller or manufacturer's hands and the time it reached the plaintiff

Even if you are not the original owner of the merchandise you can sue for product liability. For example, if a friend lends you a power saw that turns out to be defective and injures you, you can file a product liability claim against the manufacturer, distributor, wholesaler, and/or vendor of the item. Even a company that doesn't actually make a product, but merely puts its label on it, is liable for any injuries the item causes.

For example, a supermarket contracts with a manufacturer to make a line of soft drinks for the store. The manufacturer uses a bottle that does not properly release pressure upon opening. If a child is injured by an exploding bottlecap, then the supermarket is liable as well as the manufacturer. This holds true even if the supermarket was unaware that the bottles were defective.

In product liability cases it is essential that measures be taken promptly to preserve evidence, document the chain of custody of the product in question, and to enable engineers or other expert witnesses to thoroughly evaluate the product and your injuries.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Basics of Product Liability Cases

The law of product liability is the area of law that deals with the liability of the manufacturer, wholesaler or retailer of a product for injuries resulting from that product. This includes the manufacturer of component parts of the product, an assembling manufacturer, the wholesaler, the retail store or other ultimate seller of the product, and any other party in the distributive chain, regardless of whether you actually purchased the item yourself.

For example, you borrow an electrical cord with a design defect from a friend. The cord's wires cannot carry the electrical load it indicates that it can. The result is an electrical fire that burns down your house. You can file a product liability lawsuit against the maker of the electrical cord, its distributor, its wholesaler, and the retail store where it was originally purchased by your friend.

Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or your child may be injured by something seemingly harmless or something you use everyday, such as a hair dryer, toaster, baby chair, toy, iron, coffee maker, air conditioner, car, hand tool or even your clothing. Product liability law gives consumers the ability to sue for and recover damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by products. Virtually all products are subject to products liability law, not just items on the store shelves - products subject to the law run the spectrum from food, drugs, appliances, automobiles, medical devices, medical implants, blood, tobacco, gases, real estate, writings, maps, and even commercial jets.

Products liability claims are tort-based claims that can arise from negligence, strict liability, or breach of warranty, though products liability is often focused on strict liability claims.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Antibiotics Used to Treat Sinus Infections Are Overused

A study published in the March issue of the Archives of Otolaryngology found that antibiotics are commonly prescribed to treat sinus infections even though most cases are viral rather than bacterial. Researchers are concerned that the overuse of antibiotics is leading to more virulent and drug-resistant bacteria. The study looked at information compiled from more than 17 million doctor visits. 

Source:  "Sinus Study: Antibiotics Overprescribed" by Timberly Ross, published in the Seattle Post-Intelligencer.

Recorded Statements and Insurance Adjusters

The following post from The Maryland Injury Lawyer Blog discusses whether or not injured parties should allow insurance adjusters to take their recorded statement:

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer's client to "firm up liability" or to "assess credibility." But providing a recorded statement is typically a "loose-tie." It rarely results in a finding on liability in favor of the accident attorney's client. Of course, this is not to say that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

A critical caveat is in personal injury accident cases involving an uninsured or underinsured case. Because these claims are breach of contract cases, the accident lawyer's client's insurance policy almost certainly contains language making a statement to the uninsured motorist carrier a condition precedent to the accident victim's recovery under the policy.

The personal injury attorney should not assume compliance is necessarily required. This is particularly so in cases where the claim was denied. The accident lawyer should check to see when the claim was denied. If the claim was denied before the claim representative requested the recorded statement, the lawyer may have grounds for refusing a statement, claiming breach of contract. If this is the case, the lawyer should set up this claim in writing with the claims adjuster

If your client must give a statement in an uninsured motorist case, the best way to avoid disaster is to treat it as if the lawyer were prepping the client for his or her deposition. The accident attorney should discuss the client's statement with the client before he or she gives it and should generally have the client give the statement at his or her office. The lawyer should participate in the call the client makes to give a recorded statement, and should object to improper questions, remembering the ... attorneys' local rules of procedure do not apply, giving the lawyer far more latitude. Finally, let the claim representative know you insist on a copy of the statement.

Source:  "Recorded Statements" by Ronald V. Miller, Jr., published at The Maryland Injury Lawyer Blog.

Class Accuses Department of Education of Overcharging Borrowers

A lawsuit against the U.S. Department of Education alleges the agency overcharged millions of Americans with student loans over the past decade. Lawyers representing the class claim officials were repeatedly warned that they were breaking the law. According to the lawsuit, the problem is attributed to a computer glitch that caused more than 3 million borrowers to be billed hundreds of millions of dollars more than what they owed. 

Source:  "Lawsuit Says Education Dept. Overcharged on Student Loans" by Amit R. Paley, published in The Washington Post.

State House Awards Man Damages for Wrongful Imprisonment

A 46-year-old man who was exonerated of rape charges by DNA evidence after being imprisoned for 25 years. The GA House agreed to pay the man $1.2 million for lost income, personal injury and other damages. Before being convicted, the rape victim identified him from a lineup despite her earlier description that the rapist was much shorter.

Source:  "Georgia: $1.2. Million for Wrongful Imprisonment"  published in The New York Times.

Contingency Fees in Personal Injury Cases

The vast majority of personal injury cases in South Carolina and elsewhere are handled on a contingency fee basis.  The following article by attorney Scott E. Smith is an excellent discussion of the use of contingency fees in personal injury cases:

Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking an attorney for his advice is no different than asking an accountant to set up a business plan or do your taxes, a doctor to examine you, render a diagnosis and prescribe treatment or hiring an electrician to fix the wiring of your home. Nonetheless, many people are under the impression that calling a lawyer and asking a question is free. Although most lawyers will gladly answer preliminary questions regarding a legal matter, when it is determined a lawyer is needed, a fee contract is required.

Most lawyers charge by the hour, as do most professions. Depending upon the lawyer's qualifications, experience and expertise, the hourly rate will vary. However, there are situations attorneys will work for a client on a contingent basis or on a reduced hourly rate and negotiated lower percentage. A contingency fee allows a lawyer to charge a client a percentage of money recovered in behalf of the client in a given case. A contingent fee contract has been referred to as the "poor man's key to the courthouse" because many individuals who are in need or require the assistance of an attorney cannot afford an hourly rate.

Moreover, many legal matters not only require an attorney's time and advice but also monety to advance expenses for police and accident reports, photographs, medical records, court filings and subpoenas, depositions and payment for expert witness fees, common to personal injury and medical malpractice cases. The advancement of these expenses can be substantial and in medical negligence matters can often reach $30,000 to $50,000.00. A client who cannot afford the hourly rate of an attorney most likely will not be able to afford the expenses needed to adequately prepare the case. In personal injury cases the cost are usually much less and can be anywhere from a few hundred dollars to thousands of dollars.

If an attorney agrees to take your personal injury, product defect, medical negligence, class action, drug defect, premise liability, or other related incident that causes serious personal injury or death a contingency fee contract may be the only way of retaining a lawyer. Added to this scenario is the realization that many injured people are unable to work and suffer financial stress as a result of their physical injuries. Those injured individuals or their families are unable to pay expenses to retain experts and pursue their case. For those reasons contingency fee lawyers must advance the case expenses from their own accounts often times expecting those expense to be reimbursed at the time a settlement or judgment is procured in behalf of the client.

A contingency fee contract based upon a percentage of the amount recovered must not be entered into by the attorney or client without careful consideration because if the case is not successful and a settlement or judgment is not procured in behalf of the client, the attorney will have nothing to collect as a fee. This risk is borne by the attorney and adds to the basis of the percentage charged. The more difficult the case, the less likely the case will be successful and therefore, the higher the percentage charged. Nonetheless, each case must be examined on its own merits to determine the appropriate fee charged.

Most personal injury and medical negligence contingency fee attorneys charge from 25-40%. When entering into a contingency fee contract, the attorney and the client must determine the likelihood of success of the case, the amount of recovery if the case succeeds, the prior practices and attitude of the insurance representative or other side with respect to settlement or need for trial, the likelihood of collecting a judgment, the availability of alternative dispute resolution, the amount of time a lawyer is likely to spend on the case, the difficulty of the issues involved in the case, and the expenses of the litigation, whether they be shared or advanced by either the attorney or client. If an attorney is successful on a contingency fee contract the risk of taking the case on a percentage is realized. However, if an attorney is not successful the attorney not only fails to recover a fee but will have cost considerable time that could have been realized if the client had paid by the hour.

A common myth propagated by big business, big media and insurance companies is that contingency fees encourage lawyers to file frivolous lawsuits. However, the opposite is true. A competent and qualified lawyer is not about to take a case on a contingent basis unless the case has merit. Filing a frivolous lawsuit undoubtedly results in wasted time and effort by the attorney with the chance sanctions or attorney fees awarded against the filing attorney if the suit is deemed frivolous.

At our firm, the majority of our personal injury or medical negligence practice is based upon the execution of a contingency fee contract with clients who are unable or would prefer not to enter into an hourly contract. Unfortunately without contingency contracts, the majority of those in the middle or lower socio-economic sector of our community could not afford a lawyer. Of course, this is exactly what insurance companies and big business would like to see happen.

Source:  "Hiring a Personal Injury or Medical Negligence Attorney on Contingency" by Scott E. Smith, published at his Columbus Personal Injury Lawyer blog.  Thanks also to Christopher F. Early of the Massachusetts Personal Injury Blog for his post about this article.