High Point drowning case dismissed due to governmental immunity

by Karonnie R. Truzy | May 29th, 2014

In June 2010, a tragic drowning occurred at a city-operated swimming pool in High Point. The victim, Anthony Lee Hayes, a 17-year-old student at T. Wingate Andrews High School, was found unconscious on the floor of the deep end of the pool and was unable to be resuscitated.

It’s always devastating when a young person dies, but it is especially difficult to swallow when the death could possibly have been prevented. In any case, it is impossible to know what “might have been” which is why we rely on evidence to determine liability in the accident in question. The doctor who performed the autopsy stated that Mr. Hayes had been under the water ranging from 3-5 minutes. Lifeguards were notified by other swimmers that there was someone under the water and that is when they attempted to rescue him. The evidence of overcrowding in the pool in addition to the inattention and failure by lifeguards to detect that a swimmer was in distress generally provides a good foundation for a negligence case. Unfortunately, it was not enough as last month the Guilford County Superior Court dismissed the lawsuit we brought against the City of High Point on behalf of the estate of Mr. Hayes.

Why would a case be dismissed if there is evidence of negligence? Our common sense tells us that someone should be held responsible, or in legal terms, liable, for the accident. I believe that people have an innate sense of justice; however, from time to time there are cases like this where the “letter of the law” does not line up with what we consider to be right. Although I was sorely disappointed with the outcome of this case, I was not surprised. Earlier this year, the North Carolina Supreme Court denied a rehearing of a similar drowning case in Pasquotank County, essentially setting a precedent that a government entity in North Carolina cannot be held liable for performing governmental functions. While one does not generally consider the running of a swimming pool to be a governmental function, if the government provides a service that no one else will that benefits its citizens, the function may be considered governmental in nature.

This governmental or “sovereign” immunity was applicable in our case against the city of High Point. Basically, they could not be held liable – even though there was evidence of negligence – simply because the pool is run by the city for the benefit of the community. If the pool in question were on private property, the outcome would have been very different. Every case is unique, and the same immunity applied in this instance may not always apply when an injury or death occurs on government property. You should always consult an attorney if there is any question of liability or negligence surrounding an accident.

The important takeaway from this case is that you have to be vigilant regarding your safety and the safety of your family. If you spend time at a pool this summer – whether public or private – do not take your safety for granted and do not rely on others to monitor your children. It’s never a good idea to go swimming alone, no matter your age or swimming ability, and you should avoid swimming in overcrowded areas or where visibility is reduced.

Visit www.poolsafely.gov for more information about pool and spa safety.

Karonnie Truzy is a litigation attorney at Crumley Roberts and represented the estate of Anthony Lee Hayes in the referenced case against the city of High Point. He is a seasoned litigator and was recognized by the National Trial Lawyers as a “Top 40 Under 40” lawyer.

Barefoot Running Shoe Creator Settles Class Action Lawsuit

by Brian Kinsley | May 20th, 2014

If you are a runner, or have any runner friends, you have likely heard the latest news about the strange-looking, glove-like FiveFingers shoes.  These shoes, sold by parent company Vibram, were all the rage in the running world just a few years ago.  Said to emulate the effects of “barefoot running”, these shoes were embraced by 70 million Americans due to claims that using the shoes would support foot health by strengthening muscles and improving range of motion, balance and posture while running. Sounds good, right?   Too good to be true, unfortunately.

A $3.75 million settlement was recently announced in a class action lawsuit against Vibram.  Plaintiffs claimed unfair and deceptive trade practices were used to sell FiveFingers since the proposed health benefits were not based on scientific research.  While not necessarily financially substantial considering the number of potential class members, the settlement was successful in prohibiting Vibram from making any future claims about the health benefits of the FiveFingers shoes without “competent and reliable scientific evidence”.

This case is the latest in a series of shoe related class action suits.  In 2012, Sketchers paid a $40 million settlement related to unfounded claims related to their “Shape-Up” shoe line.  Reebok reached a $25 million settlement in 2011 for deceptively advertising a similar “toning shoe” product.  In a news release about the Reebok case David Vladeck, Director of the Federal Trade Commission’s Bureau of Consumer Protection, said, “The FTC wants national advertisers to understand that they must exercise some responsibility and ensure that their claims for fitness gear are supported by sound science.”

The purpose of these types of cases is not to get rich, but rather to modify corporate behavior through legal action.  It is the responsibility of citizens, and those in the legal community, to hold corporations accountable to consumer protection laws.  Regulations differ by state, but in North Carolina, the Unfair and Deceptive Trade Practice Act provides for a company to be fined up to $5,000 per misrepresentation.

When making purchasing decision, especially for health/fitness related products, you should carefully evaluate advertising claims. Check out these Tips for Buying Exercise Equipment from the FTC that can help you recognize claims you should watch for.

Brian Kinsley is the Mass Tort/Products Liability Practice Group Leader at Crumley Roberts. He is a Massachusetts native but now calls Winston-Salem, North Carolina home. When not at work, he enjoys cooking and spending time outdoors with his family.

Crumley Roberts Awards $15,000 in Scholarships to NC Students

by Brett Crisp | May 11th, 2014

Six North Carolina students are one step closer to realizing their dream of earning a four-year college degree.  Each year, Crumley Roberts awards its $2,500 Founder’s Scholarship to graduating high school seniors who will attend an accredited four-year college or university. The 2014 recipients are Kelsey Eaves of Charlotte, N.C., Mackenzie Matthews of Pinnacle, N.C. and Christian Wheeler of Mooresville, N.C.

In addition, Crumley Roberts awarded its $2,500 Next Step Scholarship to three community college students planning to transfer to an accredited four-year college or university. The recipients are Becky Anderson of Henderson, N.C., Ryan Norwood of Norlina, N.C. and Morgan Sox of Apex, N.C.

The named students were selected from more than 350 applicants based on their essay or creative writing responses to the issue of distracted driving, particularly in young drivers, plaguing our nation.  To select the scholarship recipients, essays were judged by an independent and diverse panel of accomplished professionals and community leaders.

“Our scholarship programs are an investment in the future,” said Chris Roberts, President and CEO of Crumley Roberts. “An investment not only in the lives of the recipients, but also in our communities. We believe these students are the leaders of tomorrow and we are proud to encourage their continued growth and success.”

Crumley Roberts is committed to helping students follow their educational goals through its scholarship programs. To date, the firm has awarded nearly $190,000 in scholarships and technology to college-bound students.

Motorcycle accidents increase as temperatures rise

by Dré Fleury | May 7th, 2014

After a winter that more than wore out its welcome, folks in the Carolinas are now enjoying warmer temperatures that make you wonder if we’ve jumped right into the heart of summer.  These warm, sunny days beckon us outdoors to enjoy the beautiful NC landscape – making it prime time for motorcyclists to head out on the highway.

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If you’ve been on the roads lately, you can’t miss the increased number of motorcycles.  Every rider is eager to get back out onto the road after many months of idle engines.  Unfortunately, this also means an increase in motorcycle accidents.  The past few weeks have seen a dramatic increase in motorcycle accidents in North   Carolina.  These accidents often cause serious or even fatal injuries due to the exposed nature of riding a motorcycle.  Specifically, the risk of traumatic brain injury and paralysis is significantly higher for motorcyclists than drivers of traditional vehicles.

Vehicle drivers:  be aware of your surroundings and responsibly share the road with motorcyclists you encounter.  Sharing the road is a conscious choice and you must proactively look for motorcycles on the road, especially when changing lanes or at intersections.  Drivers often find it tricky to judge the speed at which a motorcycle is approaching, so you should allow extra traveling distance and avoid pulling out in front of motorcycles.

Motorcyclists:  increase your visibility by avoiding blind spots and wearing bright colored protective gear.  Smart and safe riding goes a long way toward preventing accidents.  Try not to share the lane with other motorcycles, and always approach other motorists at a safe speed and with enough distance to allow you to react to other vehicles.  Constantly look ahead down the road to identify cars or other hazards that might become a problem.  Every rider knows the feeling you get when a car is waiting to pull out across your path.  Your attention increases, pupils dilate, your fingers grip a little tighter on the brakes, and you are ready in a flash to take evasive action if the driver pulls out.  Someone told me a long time ago, when you’re riding, assume that no other cars on the road can see you.  That way you’ll make it back home safe, ready to go next time.

Sharing the road is a shared responsibility, but with safe driving/riding, vehicle drivers and motorcyclists can help reduce the number of motorcycle accidents this season.

For more information, check out our Motorcycle Accident Resources and Motorcycle Accident FAQ.

Dré Fleury is the Personal Injury Practice Group Leader at Crumley Roberts. He leads a team of personal injury attorneys throughout the state who have represented numerous motorcycle accident victims and have witnessed how injuries sustained in a motorcycle accident can suddenly and dramatically change a life. 

Crumley Roberts Presents the Kimberly S. Roberts Servant’s Heart Spirit Award and Donates $5,000 to Victory Junction

by Brett Crisp | March 19th, 2014

Sydney White

From outward appearances, Sydney White is a typical 12-year-old girl.  She dreams of being an actress or model when she grows up and enjoys competing with her clogging team.  But this resident of Julian, NC is anything but typical.

Sydney is the recipient of the 2013 Kimberly S. Roberts Servant’s Heart Spirit Award.  This award was created by Crumley Roberts to recognize and support positive impacts in our community and is based on the characteristics of service to others.  Sydney was nominated by her aunt, Brandy McArver who serves as the Intake Supervisor at Crumley Roberts, and was selected to recognize her ongoing fundraising efforts for Victory Junction, a camp for children with chronic medical conditions or serious illnesses located in Randleman.  In honor of Sydney’s work, Crumley Roberts made a $5,000 donation to Victory Junction.  Chris Roberts, President and CEO of Crumley Roberts, and his wife, Kimberly, V.P. of Cultural Development, presented the award to Sydney on Wednesday, March 19 at the Crumley Roberts office in Greensboro.

“I believe that service to others is the core of our existence, we were put on this Earth to help others and that we are no better off, collectively, than the person among us who is suffering the most,” said Kimberly Roberts.  “We are so proud of the work that Sydney has done and humbled to join with her in supporting the cause of Victory Junction.”

Since 2008, Sydney has raised more than $30,000 for Victory Junction.  After her grandfather died, the family asked for donations to Victory Junction in lieu of flowers which piqued her curiosity about the camp.  For her birthday that year, Sydney asked for cash instead of gifts so that she could give it to Victory Junction.  Her passion for supporting the camp has only grown from there and she has organized countless fundraising events including softball and golf tournaments, bake sales, special parties and a walk-a-thon at her school.

“When I think about all that Sydney has done, I glow with pride,” says her mother, Kathy Straughan. “She has such a giving spirit and has a way of pulling the community together for good.  I have no worries that she is going somewhere in life.”

John McKee, President of Victory Junction, accepted the donation and offered thanks on behalf of the camp to Sydney for her years of significant support.  “As we celebrate our 10 year anniversary, we also celebrate Sydney, and other generous supporters, who help ensure we can provide life-changing experiences for those we serve,” said McKee.  “We greatly appreciate Sydney’s loyal support and her desire to make a positive difference in the lives of others.”

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(Left to right:  Sydney White, Kimberly Roberts, John McKee and Chris Roberts)

Founded in 1989, Crumley Roberts, LLP, represents individuals in the areas of personal injury, drug injury, product liability, workers’ compensation, and Social Security disability.  The firm operates 13 offices in North Carolina and South Carolina.  To learn more about the firm, visit CrumleyRoberts.com.

Victory Junction enriches the lives of children with serious illnesses by providing life-changing camping experiences that are exciting, fun and empowering, at no cost to children or their families.  Opened in 2004, the camp is a member of Paul Newman’s renowned SeriousFun Children’s Network and is accredited by the American Camping Association.  For more information, visit, VictoryJunction.org.

Safe Driving in Winter Weather

by Dré Fleury | January 23rd, 2014

Winter weather creates rapidly changing road conditions that can be dangerous for even the most experienced driver.  Being aware and cautious when driving is always a good idea, but particularly in North Carolina with our law of contributory negligence.  If a driver is just 1% at fault in a wreck, under our laws they would have no right to recover for their injuries or property damage – even if the other driver is 99% at fault!  Here are a few tips to help keep you safe on the roads during inclement weather:

Plan ahead.  If you are traveling during the winter, check the weather conditions along your route and plan accordingly.  Become familiar with possible stopping points along the way in case the weather is worse than anticipated.  Make sure you have plenty of fuel and always travel with emergency materials such as extra food and water, blankets, jumper cables, a flashlight and flares or roadside markers.  It is also a good idea to conserve the battery on your cell phone during travel so that you will have sufficient battery life in case of an emergency.

Slow down.  It is much harder to stop and maintain adequate control when driving on slick surfaces.  If roads are icy, snowy (or even just wet), driving slower than normal and allowing increased distance between your vehicle and those around you will give you the extra time you need to make corrections or react to your surroundings.  Make sure you allow yourself extra time for your morning commute so you don’t feel rushed.  Road conditions are typically worst early in the day before the ground temperature has had time to rise.

Stay calm.  If you start to feel your vehicle skidding, try to remain calm.  Over-correcting often causes accidents that could be prevented by a calm and careful reaction.  In most cases, if you encounter ice, the best way to react is to take your foot off of the pedals and continue to steer in the desired direction.  If you must stop abruptly, apply continuous pressure if you have antilock brakes and if not, pump the brakes gently.

Every car is unique and requires different handling to ensure safe driving, especially in unfamiliar conditions such as winter weather.   In any type of weather, the best way to protect yourself from injury is to wear your seat belt and ensure that all passengers are properly restrained with a seat belt or child safety seat.

Dré Fleury is the Personal Injury Practice Group Leader at Crumley Roberts.  He leads a team of personal injury attorneys and case managers throughout the state who work hard to stand up for their clients.  Dré lives in Charlotte with his wife, Grace, and their three children.

Winter Workplace Safety

by Michael T. Brown, Jr. | January 9th, 2014

Workplace safety should be a top priority for employers in every season, but with the cold temperatures, winter brings some unique environmental hazards that could lead to unfortunate workplace accidents.  Here are some tips to help keep your workplace safe this winter.

Avoiding Slips and Falls

Slips and falls are a concern any time of the year, but especially during winter months.  To reduce the risk of slip-and-fall injuries, keep hallways and stairs clear of any hazards such as water, snow or ice.  Make sure that each entrance to your building is equipped with a doormat for employees to wipe their feet when entering – this will reduce the amount of water that is brought in from outside.

Outside, parking lots and sidewalks should be properly maintained and prepared for winter weather.  Ice melt can be applied to surfaces to help keep ice from forming.

Clearly mark any hazardous areas, inside or outside, using appropriate signage to warn pedestrians and employees of present dangers.

Outside Workers

For any employees working outdoors during the winter months, it is critical to dress properly by wearing warm clothing and covering exposed skin.  You should also plan to work during the warmest part of the day and take frequent breaks in a warm, dry environment.

Company Vehicles and Facilities 

Any company vehicles should be routinely inspected to make sure everything is in good working condition.  Ensure that tires have proper tread and adequate pressure – this will help reduce risks when driving on slippery roadways.

If you experience a winter storm, you should immediately inspect your utility lines and report any damages to your service provider.  This includes power lines, gas lines and water pipes.  Ignoring these items can cause serious and costly hazards to develop.

The 3 C’s … Care, Caution and Communication 

To help keep your workplace safe this season, remember the three C’s: 

Employers should take care of their employees by ensuring all company facilities and property are properly prepared for winter weather and that any hazards are dealt with in a timely and proper manner.

Employees should use caution when using sidewalks, hallways and stairwells to avoid slip-and-fall accidents.

Everyone should use prompt communication when there is a hazard or issue requiring attention.  Employees should report anything they notice that is out of place or unusual and employers should clearly communicate any issues or contingencies that arise due to winter weather.

Mike Brown is the Workers’ Compensation Practice Group Leader at Crumley Roberts.  He is a Board Certified Workers’ Compensation Specialist by the NC State Bar and is the author of The Workers’ Compensation Playbook, An Employee’s Guide to Understanding Workers’ Compensation in North Carolina.

American Heart Association proposes major increase in statin usage

by Brian Kinsley | December 17th, 2013

Last month the American Heart Association and the American College of Cardiology issued new guidelines that will significantly increase the number of individuals prescribed statin drugs.

Statin drugs, including Lipitor®, have historically been prescribed to patients for cholesterol management.  The new guidelines increase the percentage of the population that would take statin drugs, citing wider health benefits such as a reduced risk of heart attack, heart disease and stroke.  According to a report published in the New York Times, this expanded recommendation will increase the number of healthy people to be prescribed statin drugs by up to 70 percent.

While this may sound good, this new recommendation is not without its critics.  Due to a lack of supporting, objective data and a host of potentially dangerous side effects, John D. Abramson, a lecturer at Harvard Medical School and Rita F. Redberg, a cardiologist at the University of California, San Francisco Medical Center, expressed major concerns in an editorial published in the New York Times.  They conclude that, “Patients should be skeptical about the guidelines, and have a meaningful dialogue with their doctors about statins, including what the evidence does and does not show, before deciding what is best for them.”

In my opinion, one of the most alarming side effects of statin usage is an increased risk of developing Type 2 diabetes, especially in women.  A 2012 drug safety communication from the U.S. Food and Drug Administration reported serious health risks for patients using statins, including worsening glycemic control which could lead to the development of diabetes.  As a result of this study, statin drug packaging was then updated to include these risks.  Prior to this time, Lipitor’s® labeling failed to warn patients of any correlation between taking the drug and changes in blood sugar levels.  Despite data suggesting that Lipitor® was linked to the development of Type 2 diabetes in women, the drug was marketed as safe and effective.

At Crumley Roberts, we represent individuals who developed Type 2 diabetes after taking Lipitor® to receive compensation for medical bills, lost wages, and pain and suffering.  Contact us today to find out if we can help you.

Never stop taking any medication without first consulting your doctor.

Lipitor® is a registered trademark of Pfizer, Inc. and is used here only to identify the product in question.

This law firm is not associated with, sponsored by, or affiliated with Pfizer, Inc., the American Hearth Association, the American College of Cardiology or the U.S. Food and Drug Administration.

Brian Kinsley is the Mass Tort/Products Liability Practice Group Leader at Crumley Roberts.  He is a Massachusetts native but now calls Winston-Salem, North Carolina home.  When not at work, he enjoys cooking and spending time outdoors with his family. 

Crumley Roberts Attorneys Receive Board Certification in Workers’ Compensation

by Brett Crisp | December 13th, 2013

GREENSBORO, N.C. – Michael Brown and Kathleen DuBois were recently named as board certified workers’ compensation specialists by the North Carolina State Bar.  Brown and DuBois join fellow Crumley Roberts’ attorney Barbara Curry who previously obtained this certification.

To become certified by the North Carolina State Bar’s Board of Legal Specialization, these attorneys completed extensive continuing legal education, passed a peer review and written examination, and possess a minimum of five years of experience within the specialty of workers’ compensation law.

“We are very proud of this accomplishment,” said Christopher Roberts, President and CEO of Crumley Roberts.  “Our workers’ compensation attorneys are top-notch and this certification further proves their commitment to our clients and to the practice of workers’ compensation law.”

Brown has 10 years of experience in workers’ compensation law and serves as the Workers’ Compensation Practice Group leader for the firm.  In 2012 he was elected a Super Lawyers® Rising Star by his peers, which recognizes attorneys under the age of 40 who excel in their respective practice area.  He also authored The Workers’ Compensation Playbook, An Employee’s Guide to Understanding Workers’ Compensation in North Carolina.

DuBois is a graduate of Wake Forest University School of Law and has 10 years of experience in workers’ compensation law.  She was selected as a 2012 Women of Justice Rising Star by NC Lawyers Weekly and was named to the “40 Leaders Under 40” list by the Triad Business Journal.  DuBois currently serves on the Workers’ Compensation Board for the North Carolina Bar Association and the Ethics and Grievance Committee of the Forsyth County Bar Association.

Founded in 1989, Crumley Roberts, LLP, represents individuals in the areas of personal injury, drug injury, product liability, workers’ compensation, and Social Security disability.  The firm operates 13 offices in North Carolina and South Carolina.  To learn more about the firm and its community relations activities, visit CrumleyRoberts.com.

NC Laws Play Favorites; Insurance Profits Rise – Part 2

by Dré Fleury | November 11th, 2013

 

This is the second post in a series about NC laws limiting individual rights, and the favor shown to insurance companies by our elected officials.  Click here for part one.

As introduced in last week’s post, the “billed v. paid” legislation passed by the NC General Assembly significantly impacts the rights of injured individuals to receive just compensation for injuries and damages incurred as a result of an accident.  To further illustrate the effects of this law, let’s consider two cases:

Case 1

Meet Sandy.  Sandy is a hard-working small business owner who has responsibly paid for health insurance her entire adult life, seeing the costs rise each year.  She pays $1,300 per month for her health insurance premiums, totaling $78,000 over the course of the past five years.

Sandy was involved in a car accident in which she was hit head-on by a habitually offending drunk driver.  Sandy incurred $100,000 in medical bills for the various surgeries required for her recovery.  Her health insurance paid for her medical treatment, although she was responsible for her 20% co-pay of the bill.  So, if you consider her insurance premiums over the past five years and her portion of the medical bills, Sandy has paid nearly $100,000 “out-of-pocket”.

Due to the discount agreements that her health insurance has arranged with medical providers, health insurance only had to pay $20,000 to satisfy their portion of the bill, with the remainder being written-off by the providers.  At trial, due to the “billed v. paid” legislation, Sandy is only able to tell the jury about $40,000 of her medical bills (the 20% that she paid, plus the amount paid by her health insurance company).  The jury decides on an award of $80,000, meaning $40,000 for pain, suffering, permanency and scarring.  The drunk-driving defendant (and his insurance company) gets the benefit of Sandy’s wise choice to pay for health insurance all those years and is ultimately responsible for less than the original amount of the medical bills.

Case 2

Meet Bill.  Bill has never worked a day in his life and has never paid a penny toward health insurance.  For the purpose of this hypothetical, assume that Bill was involved in an accident identical to Sandy’s accident in the previous case.  He receives the same medical care and recovery.

At the time of his trial, Bill still has $100,000 due to his doctors, as he hasn’t made any payments towards his bills.  The jury in this case hears nothing about the “billed v. paid” law, only about the injuries he suffered, surgeries required and bills now due.  The jury awards him $200,000 because of the magnitude of his bills and the harm they reflect.  In Bill’s case, the drunk-driving defendant is forced to answer for the true measure of his crime.  This is how the law used to be applied for everyone.  Even though Bill’s choice to be uninsured was unwise, the defendant was still responsible for the full measure of the “harm” he caused.  Bill walked away with a significantly higher award than Sandy.

These scenarios play out in our great state every day since this law has been in effect.  Legitimate claims are being denied and delayed and insurance companies are forcing plaintiffs to file lawsuits in record numbers in hopes that a jury will be fair in evaluating their claim.

“Billed v. paid” is definitely good for insurance companies; however, it’s very bad for the individual citizens of the state.  My family has been in North Carolina for many generations; some of my ancestors even served as legislators.  They served because they wanted to fulfill their public duty for the citizens.  Laws are supposed to be created and passed for the good of the people, and this one sadly misses the mark.

Dré Fleury is the Personal Injury Practice Group Leader at Crumley Roberts. His passion for individual rights drives his work every day.  He leads a team of personal injury attorneys and case managers throughout the state who work hard to stand up for their client.