North Carolina Injury Law Blog

What if repairs to my car are defective, but I've already settled?

In Franz v. Tribeck the Court of Appeals recently held that even if a person had settled his property damage claim from an automobile accident - and received compensation for both the repairs and diminution of value - the owner of the car could still sue the garage owner for defective repairs.  In this case, the garage owner had argued that since the owner of the car was paid for the fact that a wrecked car, even if repaired, is worth less than an unwrecked car, he could not sue the garage owner for poorly performed repairs.  The Court sounded rejected that argument.

Continuous alcohol monitoring for DWI offenders

Gov. Mike Easley recently signed a law that permitted the use of alcohol monitors on DWI offenders.  The device apparently attaches to a person's ankle and may be used to measure compliance of the offender with his terms of probation and release.  The device is called SCRAM for Secure Continuous Remote Alcohol Monitor. 

Contributory Negligence

This seems like a great topic since I've neglected to post anything here for some time (I will blame Summer craziness).

North Carolina is one of a handful of states which still retain the doctrine of contributory negligence.  Most states have moved to comparative negligence in some form or another.  Contributory negligence essentially means that if the plaintiff is herself negligent, and that negligence is a proximate cause of her injuries, she recovers nothing.  So, if in a car wreck case both drivers are speeding, and the speeding caused the wreck (and resultant injuries and damages) if one driver sues the other, they may lose because of their own negligence.  Of course, it is the defendant's burden to prove contributory negligence, but is obviously a powerful weapon for defendants (I know as a defense attorney I always used it when i could), and in my opinion, can have harsh results.  Even if a plaintiff's negligence is only viewed as 1% of cause of damages by a jury, he still gets zilch.  Many states abandoned the doctrine for this very reason, and instead use comparative negligence, whereby a negligent plaintiff's damages are offset by amount of his negligence.  There are a few variants of it, but essentially it's more of a weighing  of the fault of both parties rather than absolute denial of recovery for plaintiff who is in any way negligent.

The North Carolina legislature has entertained the idea of moving to comparative negligence, but I am skeptical it'll happen anytime soon given the current "tort reform" climate and the aggressive lobbying of corporate interests in the legislature.

-will

Starburst candy lawsuit

Day on Torts brings us news of yet another foolish endeavor in litigation, namely a lawsuit over the chewy nature of Starburst candy.   It is almost as if these lawyers are trying to malign the very profession from which they derive their livelihood.  I commented on the article that this demonstrates a need for lawyers and non-lawyers to use blogs to call out such foolishness, and to bring it to the light of day.  Yes, I am a trial lawyer, but I do not condone the use of our court system for frivolous matters, and on the whole think that "tort reformers" are wrong to imply that many frivolous suits exist.  Yet these high profile acts of absurdity lend credence to such notions of rampant frivolous litigation, and more importantly, cheapen the system and the thousands of lawyers toiling within it to maintain civil order and resolve disputes peacefully.

PS - I also love Starburst candy, so if the company wants some legal help, I could probably be bought with a lifetime supply of candy!

-will

Multi-million dollar pants plaintiff loses case

In news that is about as surprising as the fact that Paris Hilton is doing an interview after her release from jail (sarcasm intended fyi), the infamous 65 million dollar pants lawsuit ended with the plaintiff recovering zilch.  It remains to be seen if he'll be liable for any costs.  That incredibly generous offer by the dry cleaner defendant probably seems alot better to the plaintiff right now. 

This ridiculous case, while an extreme example, might clarify that folks who sue for such frivolous reasons don't usually walk away with some sort of jackpot.  What's sad is that injured persons, or corporations with legitimate grievances, will be viewed by some as in the same camp as the plaintiff here. 

Lawyer rating website sued

Ronald V. Miller at The Maryland Injury Lawyer Blog has an article today about a lawsuit against the lawyer-rating website avvo.com.  I agree completely with Ronald's take, namely that consumers need and deserve access to information to make an informed choice of lawyer, yet rating lawyers is a suspect proposition to say the least.  Some  lawyers are great in court, some are not.  Some know certain areas of law better than others, and also may be of a certain personality that works with some clients and not others.  I believe firmly that an attorney-client relationship should rarely if ever be initiated with a face to face meeting where both the lawyer and client get a feel for one another.  Simply trusting avvo.com, or even you best buddy's recommendation, is NOT the way to select a lawyer.

will

Nifong loses law license

The embattled District Attorney from Durham had his hearing before the State Bar yesterday, and walked out without his law license. It did not need to happen.  But, choices were made, and from what I know of the case, the consequences seem quite appropriate. 
-will

Yet another boating accident.....

This time on Badin Lake. The article in Charlotte Observer mentions question of need for boater education requirements.  I certainly hope the missing boater is found alive.  As said before, these types of things might happen if there was some requirement for boater education - much like folks still have accidents in cars despite needing license, but perhaps it could prevent some of these types of accidents.  In my mind it is worth the hassle to require at least some modicum of boating safety training before letting folks hit the water in powerful motorboats.

-will

Talk like a real person!

Here's a great post on communication from the South Carolina Trial Law Blog. Pretty simple concept: stop using jargon and gobbledy-gook and speak like a normal person!  This is a pretty big problem for lawyers, as we like to use some of the fancy terms we learned in law school (after all, that's how I got that law school debt!).  So, next time you're tempted to say "motor vehicle collision", just say "wreck".  Use the latin terms and legal-sounding stuff for impressing (or annoying) your colleagues and opposing counsel!

-will

65 million dollar pants lawsuit

This story won't die, and rightfully so.  Some tort reform advocates point to this case as further abuse by evil trial lawyers.  Please.  Every trial lawyer I know, every legal blog I've read, and the American Association for Justice (formally the ATLA, American Trial Lawyers Association) have ridiculed and expressed outrage at the lawsuit.  I believe the AAJ even offered to provide free defense, and made a public statement decrying such an absurd lawsuit.  Law does not always jibe with the common sense we feel should prevail, but this is one situation where I feel confident the legal result will match what common sense dictates, namely the suit gets tossed and this judge who filed it face sanctions for making a mockery of the legal system.

Here is a post from the Atlanta Injury Law & Civil Litigation Blog that summarizes how I'd estimate 99.9% of the legal profession views this absurd lawsuit. Please, do not even try to make the crazy actions of a clearly misguided administrative law judge the fault of "trial lawyers", whether you hate us or not.  If you do, then I suppose you have to lump all astronauts with that woman who wore depends and travelled hours to avenge her jealous love for another astronaut!

-will