Brain Injury Attorney Blog

Wrongful death is a tort action governed by statute. At common law the liability and cause of action for wrongful killing died with the injured person, and thus only through legislation do statutorily designated beneficiaries gain a cause of action for their losses. The action is brought by the administrator of the decedent's estate on behalf of the statutory beneficiaries.

A wrongful death may be the result of an intentional tort. The cause of action might also be based on products liability or breach of warranty, although more usually it will be brought as a negligence action. In order to recover in a wrongful death action based on negligence, the plaintiff must show: 1. a duty of care owed by the defendant to the decedent; 2. a breach of that duty by a negligent act or omission; 3. damages proximately resulting from the breach.

The duty of care owed to a decedent by a defendant in a wrongful death case will be determined by the nature of the action, for example, medical malpractice; premises liablity; automobile negligence. The duty may also be based on statute. The South Carolina Supreme Court has said that in order to show a duty of care based on a statute, the plaintiff must show: 1. that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; 2. that he/she is a member of the class of persons the statute is intended to protect. Generally, a duty of care is that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care.

The plaintiff must show the defendant breached the duty of care. Generally, a breach of duty exists when it is foreseeable that conduct may likely injure a person to whom a duty is owed. For example, in a medical malpractice case the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures. If the plaintiff shows a duty arising from a statute and that the defendant violated the statute, the element is met by proof of negligence per se. A violation of administrative regulation may also constitute negligence per se.

The plaintiff must show the breach of duty was the proximate cause of the injury. The South Carolina Supreme Court has said proximate cause requires proof of: 1. causation and fact and 2. legal cause. Causation in fact is proved by establishing the injury would not have occurred but for the defendant's negligence. Legal cause is proved by establishing foreseeability. Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury and you will need a good wrongful death lawyer to go to court with you. Please contact The Mace Firm to schedule a consultation with one of our wrongful death attorneys.

Continue reading " Elements of a Wrongful Death Case " »

The statute of limitations applicable to injuries to the person or rights of another is three years for actions arising on or after April 5, 1988, and six years for those arising before that date. Actions initiated under the provision must be commenced within three years after the plaintiff knew, or by the exercise of reasonable diligence should have known, that a cause of action existed.

Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent and that the negligence was the proximate cause of the injuries. Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence. Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.

The "unforeseeable incapacity" defense may protect a defendant from liability in some cases.

The South Carolina Tort Claims Act waives the immunity of the State, its agencies, political subdivision, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action. One is the statute of limitations which is two years, unless the claimant first files a claim pursuant to the act in which case the limitation is three years. Another limitation is that governmental entities are not liable for a loss resulting from "employee conduct...which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude... Ordinarily, only the governmental entity may be named as a party defendant, and the employee committing a tort while acting within the scope of his or her official duties is not personally liable unless the conduct in question constituted actual fraud, actual malice, intent to harm, or was a crime of moral turpitude. If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.

The public duty rule is a negative defense that denies the existence of a duty of care to an individual plaintiff. Under the rule of public officials are generally not liable to individuals for negligence in the discharge of their public duties because the duty is owed to the public at large and not to any single individual.

Assumption of the risk is a defense to negligence that is recognized in South Carolina in two forms: express assumption and implied assumption. Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it. A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981, the decision does not have retroactive application. There is a statutory limitation on liability for charitable organizations. A "charitable organization": is any organization, institution, association society, or corporation which is exempt from taxation pursuant to" 26 U.S.C. 501(c)(3) or (d). A person "sustaining injury by dying as a result of a tortious act of commission or omission by and employee of a charitable organization acting within the scope of his or her employment, may recover no more than the liability imposed under the Tort Claims Act for actual damages sustained. Unless it is proved that the employee acted recklessly, willfully, or in gross negligence, an action against the charitable organization is a complete bar to recovery against the employee. Where a defendant is both a governmental and charitable organization, the Tort Claims Act provides the exclusive remedy, and the action is governed by it rather that the charitable immunity statute.

Continue reading " Negligence Defenses " »

Negligence is the breach of duty of care owed to the plaintiff by the defendant. Generally, under common law, there is no duty to act. An affirmative duty to act exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance.

In order to recover in any negligence action, the plaintiff must show: 1. a duty of care owed by the defendant to the plaintiff; 2. a breach of duty by a negligent act or omission; and 3. damages proximately resulting from the breach.

1. A duty of care is that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care. The duty to act may rise from statute, contract, relationship, status, property interest, or some other special circumstance. In order for there to be a duty of care based on a statute, the plaintiff must show: 1. that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and 2. that he/she is a member of the class of persons the statute is intended to protect. For example, dram shop liability is based on statutory duties imposed on establishments licensed to sell alcoholic beverages that prohibit them from serving minors or intoxicated persons. Other duties arise from the relationship between parties as in negligent misrepresentation where the defendant possesses expertise or special knowledge that would ordinarily make it reasonable for the plaintiff to rely on the defendant, and the defendant has a pecuniary interest in a transaction between the parties. Premises liability is a tort in which the duty is dependent on the status of the plaintiff. A defendant, for example, owes an invitee a duty of due care to discover risks and take safety precautions to warn or eliminate unreasonable risks within the area of invitation. The duty owed to a licensee is to use reasonable care to discover and avoid injury to him or her and to use reasonable care to warn against any concealed dangerous conditions or activities known to the possessor, or any change in the condition of the premises which may be dangerous, and which the licensee may reasonably be not expected to discover. A possessor of property owes no duty to a trespasser except to do no willful or wanton injury.

2. Generally in a negligence action the plaintiff must show the defendant did not use the amount of care on ordinarily would have under the circumstances. If the plaintiff shows a duty arising from a statute and that the defendant violated a statute, the element is met by proof of negligence per se. A violation of an administrative regulation may also constitute negligence per se. In a medical malpractice action, the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures. The defendant's failure to conform to that standard must generally be shown by expert testimony unless the subject matter is within common knowledge and experience.

For a plaintiff to recover for injuries caused by a dangerous or defective condition on the defendant's premises it must be shown that: 1. a specific act of the defendant created the condition; 2. the defendant had actual knowledge of the condition; or 3. the defendant had constructive knowledge of the condition.

In "slip and fall cases," which many premises liability actions are, constructive notice is shown by proving a foreign substance had been on the floor for a sufficient time to be discovered and removed in the exercise of ordinary care.

3. The plaintiff must show the breach of duty was the proximate cause of the injury. A plaintiff is not, however, required to prove that the defendant's negligence was the sole proximate cause of the injury. The South Carolina Supreme Court has said: Proximate cause requires proof of 1. causation in fact and 2. legal cause.

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.

Continue reading " Proving Negligence " »

The cost of all the fender benders, medevacs, lawsuits and lives lost on the nation's most conjested roads has a very high price tag--$7.4 billion per year. The National Highway Traffic Safety Administration for the D.C. area recorded 350 traffic deaths and 45,566 injuries in 2009. If any good news can be found in this latest attempt to quantify the damage done to lives and property, it might be that, crashes cost less in this area than they do nationwide. This is apparently because the slow-speed car accidents of cars caught in congestion do less damage and cause fewer deaths and injuries than those that occur at highway speeds.

To come to their monetary conclusions, researchers used highly sophisticated federal guidelines that place value on a lost life, lost wages, time lost at work, effect on the quality of life and other factors. But the cost of congestion to Washington drivers was ranked fourth highest in the nation at almost $3.9 billion a year in the Texas Transportation Institute’s annual report for 2011. That study — which said Washington had the worst congestion in the United States — put the annual additional cost of commuting in rush hour here at $1,495. The institute, which is based at Texas A&M University, in College Station, found that Washington drivers were spending more than three days a year caught in traffic! Additionally, the Census Bureau confirmed the grip of gridlock on the region, determining that Maryland drivers, thousands of whom drive to work in D.C. or Virginia, have the longest average commute in the nation.

Here in South Carolina, the total number of traffic fatalities has dropped since 2005. Although this is great news, there are still many dangers on South Carolina roads and highways. When you're injured in a car crash, insurance companies typically look first to how much money has been spent and/or lost by the injured person when determining recovery. You may expect to recover any money spent or lost as a result of your injury. There are damages, however, that are harder to place a dollar value on. This includes pain and suffering or mental anguish. An insurance company may use a formula to ascertain what an appropriate damage amount might be for these types of claims. Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties.

If you or someone you know has been injured in a car crash, you may need to speak with a personal injury lawyer in your area. The Myrtle Beach personal injury lawyers at The Mace Firm are ready to speak with you about your accident. Our personal injury lawyers in Myrtle Beach are prepared to speak with you today; call to schedule your free consultation.

Continue reading " Over $7 Billion Per Year On D.C. Crashes " »