Seventy-four words that can save American Democracy.

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

This is the brain-child of former Supreme Court Justice John Paul Stevens.  And if he gets his way (and I’ll do all I can to see that he does) it will become the next Amendment to the United States Constitution.  It is one of six proposed Amendments he is advocating in a new book (appropriately titled Six Amendments) to come out later this year.

Six Amendments -- But there's one that should be TOP priority

Six Amendments — But there’s one that should be TOP priority

Right now, though, the one that excites me is the one above regarding on political gerrymandering.  Folks that know me at all know that I have long been a critic of such practices, whether done by Democrats or Republicans.  Just within the last month, I had a piece in the Charlotte Observer complimenting the conservative Republican Secretary State of Ohio for his enlightened and courageous stand on the issue.  (The practice is also especially bad in North Carolina.)

As I’ve noted before in another op-ed piece,  The vast majority of this nation’s Congressional districts are surgically tailored to protect incumbents from one party or the other. This precise “gerrymandering” produces representatives who have zero incentive for reasoned compromise; indeed it is more likely to be penalized.

Thus, we have a situation where far more often politicians are pick their voters rather than voters having any substantive say in choosing their representatives.

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A victory for the good guys… courtesy of the NC Court of Appeals.

In a unanimous decision, the Appeals Court agreed with our position that the North Carolina Industrial Commission was wrong when it dismissed our client’s case involving a school bus, and a young child who was killed while crossing a rural highway in the pre-dawn hours to trying to get to his ride.

Sometimes it takes a while, but occasionally the good guys have a good day in Raleigh.  Such a day occurred earlier this week when the North Carolina Court of Appeals handed downed a well-reasoned and well-written opinion establishing jurisdiction within the NC Industrial Commission for a case involving a horrible pedestrian accident killing a 7-year old boy while he was trying to cross a rural highway to get to his school bus.

A case in search of a home…and this is it!
(The NC Industrial Commission building)

The case is Burns v. Union County Board of Education and it involves the wrongful death case of young Jonathan Beegle, who, as the opinion describes it… was waiting on the east of Medlin Road in Union County about six to ten feet from the roadway… At approximately 6:50 a.m., the bus… was travelling southbound…  As (the child) began to cross the street, a vehicle driven by a third party…was traveling northbound towards the stopped school bus. Before (the child) could reach the bus, he was struck (and) died later that day as a result of the trauma suffered in the accident.”

Just an unspeakably sad and awful loss.  (With her permission, I have written in this blog before about the very brave mom who is taking this tragedy as an opportunity to help others cope with their losses.)

Almost two years ago, we filed a claim under the State Torts Claims Act in the North Carolina Industrial Commission, based on a long standing statute giving that body jurisdiction to decide almost all school bus crashes.   But we received immediate opposition from the Attorney General’s office that the NCIC lacked any authority to decide the case or render any award to the child’s estate.  Basically, because we were upfront in saying we thought the case was more about negligent route design than driver error, the AG took the position that it was beyond the NCIC’s purview.

The Industrial Commission agreed with the Attorney General, but we appealed that decision to the Court of Appeals.  In essence, and Judge Robert C. Hunter (along with Judges Calabria and Robert N. Hunter) decided, they were wrong and we were right!

Big kudos to co-counsel SAM MCGEE for crafting an erudite, concise and clever brief that obviously did the trick with the Court!

Like I said, let’s hear it for the good guys!

(You can read more in an upcoming LEGAL TRENDS, ODDS & ENDS newsletter.)

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Advice to Keep Halloween Safe-via Channel 9

Reporter Jason Stoogenke interviewed me last week to understand better how residents can protect themselves from possible liability.

WSOC Reporter Jason Stoogenke interviews me regarding ways that help avoid legal liability to homeowners.

WSOC Reporter Jason Stoogenke interviews me regarding ways that help avoid legal liability to homeowners.

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NC Court of Appeals Proves Once Again — Being A Landowner Doesn’t Always Mean Having To Say You’re Sorry…

In a tough case involving crippling injuries to a Charlotte worker, the North Carolina Court of Appeals just last month handed down a case that once again proves that just because someone who is injured on your property — even someone who has been invited there — does not mean that you are legally liable to pay the resulting damages. Burnham v. S&L Sawmill, Inc, et al. NC Ct of Appls Case # COA12-1581

Judge Sam J. "Jimmy" Ervin IV

Judge Sam J. “Jimmy” Ervin IV – wrote the opinion upholding a dismissal of a trucker’s case against a landowner.

Nicholas Burnham worked as a dump truck driver for McGee Brothers Company in 2008, when he made a trip to the sawmill operated by S & L Sawmill, Inc. Once there, his task was to drive on to a scale to weigh the load, untie the binding straps which secured the load,, unload the logs and receive payment for the delivery before leaving. Although he had done this on numerous occasions previously, parking his truck in the same spot without incident, on April 3, 2008 his truck “was ‘fairly’ although not completely, level” with the truck leaning to the side slightly. As he engaged in the unloading process, a binding strap “snapped out” towards the place where he was standing, and a falling log rolled off and struck him, crippling him. He is now permanently confined to a wheelchair.

This case argued by three attorneys I know very well and for whom I have great respect, and the appellate decision was written by a Davidson classmate of mine, the Honorable Sam J. (“Jimmy”) Ervin IV. (Bribe me with enough wine, and I’ll tell you some not so “honorable” stories…heh, heh.)

In essence, Judge Ervin upheld the ruling by the trial judge (Yvonne Mims Evans is another jurist I know well, and for whom I have great respect) by explaining that the Plaintiff simply had not shown exactly what duty the Defendants had breached toward Mr. Burnham.

This opinion is a good “teaching” case, in that it quotes extensively from basic case law to more fully define and explain a landowner’s responsibilities. Judge Ervin quoted the seminal case of Nelson v. Freeland, 149 NC 615 (1998), as well as some others, as he tried to convey the delicate balance needed to hold landowners responsible for taking reasonable precautions for safety, but not making them liable for every injury that happens to occur on their property:

The ultimate issue…..

Having thus explained the law, Judge Ervin applied it in this case: “After carefully reviewing the record, we have been unable to find any record evidence tending to show that Defendants either created the condition which caused Plaintiff’s injury or failed to correct such a condition after notice of its existence.” And so the landowner wins, and the injured plaintiff doesn’t even get to a trial.

One final note: The next time you hear at some cocktail party some blowhard spouting off about how “everyone’s getting rich off of the legal system,” remind them that it’s just not so. I have no doubt the Plaintiff’s attorneys invested thousands of dollars on their own money to help their client and don’t have a dime to show for it. And neither the Defendant, nor its insurance company, didn’t have to pay a dime to a person horribly injured on its property.

Justice is a process, not necessarily any one result. We would all be wise to let the process work, and not muck it up any further through misguided “tort reform.”

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At least ONE good new law…Yaaaaay!!

Folks who know me well, know that I have not been a big fan of this General Assembly, so I want to take any opportunity I can to broadcast some good news coming from Raleigh.  Session Law 2013-159 brought about a few important changes in how civil cases will be litigated, and for the most part I think there’s a lot more good than bad.

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The Legislative Building in Raleigh: A place where good ideas were hard to come by.

  • Small Claims Court can now hear disputes up to $10,000;
  • District Court is allowed to hear claims up to $25,000;
  • Arbitration may be required for many more small disputes, with new penalties for parties that appeal the arbitration award and lose; (I’m reserving judgment on that one.)
  • Insurance companies now have greater incentive to settle lawsuits up to $25,000.  If a Plaintiff wins a higher amount at trial than what the insurance company offered, the insurer may be required to pay the Plaintiff’s attorneys’ fees and costs.  (The old limit was $20,000. There are a lot of requirements and considerations that go into this, so be sure to check with an attorney in you need more details!)
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Happy (Real) Independence Day! …The Second of July

image003Yesterday, we sent out our firm’s annual Fourth of July e-newsletter.  We hope you’ll take the time to look at it, and even more so, take some time to read or listen to The Declaration of Independence.  Have a safe and celebratory Fourth of July everyone!

>>>>>>>

Resolved: That these united colonies are and of right ought to be free and independent states…

On this day, July SECOND, in 1776, the Continental Congress passed a resolution that the 13 “united colonies” were now “states” — free and independent from the British crown.

The next morning (while a more formal declaration was being hammered out by “Mr. Jefferson from Virginia”) John Adams wrote a letter to his wife Abigail.  In it, he expressed just how important the occasion was:

Yesterday the greatest question was decided, which ever was debated in America, and a greater, perhaps, never was or will be decided among Men. A resolution was passed without one dissenting colony “that these United Colonies are, and of right ought to be, free and independent states…You will see In a few days a declaration setting forth the causes which have impelled us to this mighty revolution and the reasons which will justify it in the sight of God and man.

John to Abigail: "You will think me transported with enthusiasm" for The Second of July!

John to Abigail: “You will think me transported with enthusiasm” for The Second of July!

In a second letter, written that evening, he predicted “The Second of July” would be the new nation’s day of celebration:

The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival… with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.

Even though Mr. Adams may have missed the mark on which date on the calendar would get notoriety, he was “spot on” when he concluded to his wife and closest confidante:

You will think me transported with enthusiasm; but I am not. I am well aware of the toil, and blood, and treasure, that it will cost us to maintain this declaration, and support and defend these states. Yet, through all the gloom, I can see the rays of light and glory; I can see that the end is more than worth all the means, and that posterity will triumph…

Regardless what kind of “bells, bonfires or illuminations”  you choose to celebrate this 237th anniversary of our nation’s independence, I do hope it is done safely for you and your family.

Read more in my LEGAL TRENDS e-newsletter.

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In most civil trials, the most important word…

…also happens to be the shortest:  “A.”

Getting a jury to truly understand the critical importance of that littlest of words, and apply it accurately, is often the difference between victory and defeat.  This is especially true in a civil trial that is centered around negligence, and negligent corporate behavior.

Judge Robert Ervin is handed a jury verdict awarding $6 million to families whose relatives were killed, finding that a corporation's failure to erect a safety traffic signal was "A proximate cause" of a fatal car crash.

Judge Robert Ervin is handed a jury verdict awarding $6 million to families whose relatives were killed, finding that a corporation’s failure to erect a safety traffic signal was “A proximate cause” of a fatal car crash.
(Photo by Diedra Laird of The Charlotte Observer.)

For in order to find a defendant liable for someone’s injuries or wrongful death, a civil jury is charged with determining whether certain negligent behavior was “a proximate cause” of those injuries or death.

Here’s the actual charge that a judge (like Judge Robert Ervin of Morganton, pictured at right) would give to a civil jury empaneled in a negligence case:

“The plaintiff not only has the burden of proving negligence, but also that such negligence was a proximate cause of the [injury] [damage].

Proximate cause is a cause which in a natural and continuous sequence produces a person’s [injury] [damage], and is a cause which a reasonable and prudent person could have foreseen would probably produce such [injury] [damage] or some similar injurious result.

There may be more than one proximate cause of [an injury] [damage]. Therefore, the plaintiff need not prove that the defendant’s negligence was the sole proximate cause of the [injury] [damage]. The plaintiff must prove, by the greater weight of the evidence, only that the defendant’s negligence was a proximate cause.”     — N.C.P.I.  MV 102.91

     The $6 million verdict in Mecklenburg County this week probably provided a good example.  I was not involved in this trial in any way, but I do know all the attorneys (and the judge I’ve known forever since we were at Davidson together).  Just reading between the lines of all the news accounts, I am positive the jury struggled with this concept of “proximate cause.”

Channel 9's Mark Becker reports on verdict.  (You can hear the clerk asking whether the Defendant's negligence was "A proximate cause" of the crash?

Channel 9’s Mark Becker reports on verdict. (You can hear the clerk asking whether the Defendant’s negligence was “A proximate cause” of the crash?

The plaintiff’s attorneys had argued that the defendant real estate corporation was negligent in failing to erect a traffic signal at the entrance to one of its properties, and that such a failure was “a proximate cause” their clients’ deaths in a horrific car crash.  I am willing to bet this was critically important in this this case, because the crash occurred when two young drivers were drag-racing at nearly 100 MPH down the road that runs by the entrance, slamming into a vehicle driven out of the entrance.  It’s easy to argue that such clearly reckless behavior by the racing drivers was the most important cause, and a clearly a more heinous cause, of these tragic deaths.

But the law is clear —  “…the plaintiff need not prove that the defendant’s negligence was the sole proximate cause of [the crash]. The plaintiff must prove…only that the defendant’s negligence was A proximate cause.” 

Again, sometimes the most important word in a trial is the smallest word of all.

Read more in my upcoming LEGAL TRENDS e-newsletter.

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A Call for Better Government

(THIS IS A MESSAGE SENT 4/25/2013 TO THE STATEWIDE LISTSERVE FOR THE NORTH CAROLINA ADVOCATES FOR JUSTICE… THIS IS A POLITICAL POST, BUT DEALS WITH A GOVERNMENTAL ISSUE THAT AFFECTS THE FUTURE COMPOSITION OF THE STATE’S CONGRESSIONAL DELEGATION AND THE GENERAL ASSEMBLY — A SUBJECT WHICH IS OBVIOUSLY RELATED TO OUR PROFESSION AND PRACTICES.)

Folks that know me, will know how hard it is for me to say this… but I gotta hand it to Speaker Tillis. On at least on this issue, REDISTRICTING REFORM, Speaker Tillis is showing some enlightened leadership.

tillis-listen

NC Speaker Thom Tillis

I have long thought, and said publicly, that THE most serious threat to American democracy today is the abuse of the redistricting process around the country, where the boundaries of election districts for Congressional, State Senate, State House, County Commission and other local seats are determined by raw political power. The result has been clear — more and more extreme politicians, representing more and more extreme districts, with less and less room for compromise or rational public policy.

(The “Great Gerrymandering of 2012 in NC is just one example. Our state now sends 9 GOP Congressmen to D.C. and only 4 Democrats, even though more NC voters cast ballots for Democratic Congressional candidate. Of course, GOP leaders counter that the Democrats engaged in the same practice when they had the majority. Regardless of who was or is doing it, it makes for lousy public policy.)

Thom Tillis and most of the Republicans, when they were in the Minority, were all about Redistricting Reform. TO HIS CREDIT, the Speaker is now bucking up against some in his own caucus, and has publicly expressed support of HB 606, which calls for districts to be drawn NOT by whatever party happens to be in power, but by professional staff following certain mostly non-political criteria. The NCGA gets to approve the staff plan with an up or down vote.

The concept has been endorsed by at least a half-dozen papers around the state, and a number of former Governors and office holders from both parties. A plan very much like it is in effect in Iowa, and has been widely applauded by both parties.

So, yesterday on my way back from Raleigh filing something with the NCIC, I did something REALLY unusual for me — I called a Republican’s office-holder to offer support and thanks. I told the aide at the Speaker’s office (at 919-733-3451) that, having gone against him on TV before, I now wanted to publicly compliment him and thank him for this enlightened stand.

For the sake of better government in the future, I would ask that you join me. I think it is appropriate as Advocates for Justice to be advocates for good government. Show the Speaker a little love. You can email him at Thom.Tillis@ncleg.net or call at the number above.

I am told by those behind the bill that his continued support — not just verbal, but strategic and aggressive — is crucial to the success of this measure.

Many thanks.

<<< Here are some other links to use if you want to publicly promote this in other venues.

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SCOTUS to North Carolina: “Ya Gots To Do Better Than This!”

The Supreme Court of the United States (aka “SCOTUS” aka “The Supremes“) recently handed down a decision that will bring profound changes in the way North Carolina disburses settlement proceeds in catastrophic injury claims.

Before this month’s decision, whenever a person on Medicaid was injured by someone else’s carelessness, but there was not enough funds recovered from the careless party to pay for all of the injured person’s expenses and damages, attorneys were required to pay back to Medicaid basically one third of all those funds.

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(Not SCOTUS)

No more.  In the case of Wos v. E.M.A., the High Court decided that “North Carolina’s scheme is “arbitrary” and often leads to results where a person already badly harmed gets injured even further by the civil justice system.  The Court summarized the essential problem with North Carolina’s practice this way:

“The state law has no process for determining what portion of a beneficiary’s tort recovery is attributable to medical expenses. Instead, the State has picked an arbitrary percentage and by statutory command labeled that portion of a beneficiary’s tort recovery as representing payment for medical care… 
 
The State offers no evidence showing that its allocation is reasonable…and the law provides no mechanism for determining whether its allocation is reasonable in any particular case. 

 Read more in my March 2013 LEGAL TRENDS e-newsletter.

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Keep Pressing Forward…

Sometimes if you keep pressing forward, good things will eventually happen…

When this young man’s family came to me, his family was told by their insurance agent that there was no coverage in North Carolina for hit and run wrecks.  Their son was a day student at a local college and had been the victim on a hit-and-run driver, leaving him with some bad injuries.

sisyphusI had to explain to them — and then the agent! — about North Carolina’s ”contact rule.”  It is a harsh law, and it does say that no matter how many disinterested witnesses agree with the victim, unless there is evidence of actual physical contact with the ”phantom” hit and run vehicle, a victim of such a bad hit and run driver cannot recover.  Fortunately,after speaking with witnesses and investigating officers and visiting the towing company’s storage yard, we confirmed there WAS an actual “hit” to the son’s car.  Thus, we established son’s “uninsured motorist”  (UM) coverage was in play.

The living situation of this student was pretty unique.  He did not live in a dormitory, but actually split time between his parents, who are separated.  It some convincing of their insurers, but the next step was to get his parents’ policies on board.  I send North Carolina legal authority, and the adjusters took some recorded statement of the parents, but it became clear that the son was a “family member” of BOTH households, and was qualified for the UM coverage under each of those policies as well.

Then there were some questions of liability. The investigating police officer put down “failure to yield” against the  student, but once we obtained more detailed statements from the witnesses, we established both 1)no negligence by the victim, and 2) even if there was there was GROSS negligence on the hit and run driver.

So, in the end, there was the student’s policy limits that were tendered, the mom’s policy limits, and then the dad’s…all of which were and are desperately needed to help this family pay some of its bills.    It doesn’t always work like this, but sometimes insurance companies will do the right thing even though they have to be spoon fed and brought kicking and screaming to do it.

 

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