Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This recent SC Court of Appeals case reaffirms that your attorney has to have a proper expert witness to prove your case. Otherwise, a critical error can effectively end your workers’ compensation case. At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know how to anticipate and prepare for defenses and insurance company tactics. During our twenty-two (22) years each of practicing law, we have successfully handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
Claude Potter, Employee, Appellant,
v.
Spartanburg School District 7, Employer, and S.C. School Board Self-Insurance Trust Fund, Carrier, Respondents.
Opinion No. 4890.
Court of Appeals of South Carolina. Submitted June 1, 2011.Filed September 14, 2011.Andrew N. Poliakoff, of Spartanburg, for Appellant.Michael Allen Farry, of Greenville, for Respondents.KONDUROS, J.,:This is an appeal of a workers’ compensation case arising from Claude Potter’s compensable injuries, which originated from a slip and fall during his employment with Spartanburg SchoolDistrict 7 (School District). The Appellate Panel found that although Potter did suffer a psychological overlay from his injury, he did not sustain any permanent partial disability as a result of the psychological overlay, and the circuit court affirmed. Potter raises several issues on appeal, claiming the circuit court erred in affirming the following findings: (1) Potter did not suffer any “physical brain damage” causally related to the accident; (2) the only body part with resulting impairment from the accident is the right leg; (3) Potter has not suffered a psychological/mental injury; and (4) Potter has not suffered permanent and total disability. We affirm.FACTS
On December 19, 2003, Potter was performing maintenance on a heating ventilation and air conditioning (HVAC) system located on the roof of a building for the School District. While securing a ladder, Potter fell approximately twelve to fourteen feet landing on asphalt and losing consciousness for a few minutes. He fractured his right femur with “minimal displacement” and sustained a small cut above his eye. Potter’s right leg was surgically repaired and a few stitches were used to treat the cut above his eye. The computerized tomography (CT) scan of his head on the day of the fall showed a “small amount of supratentorial blood.” A second CT scan, taken a few days later, revealed no new problems and the previous swelling and pressure had subsided. The School District began payingPotter weekly temporary total disability benefits and provided medical care.
On November 23, 2004, Potter underwent a neurological consultation. The neurologist, Dr. Thomas A. Collings, found Potter’s reported problems with disequilibrium were probably not related to his fall, and the vertigo and mild head injury had resolved itself. His treating physician, Dr. Mark D. Visk, evaluated Potter on December 16, 2004, and assigned him a twenty percent permanent impairment to the right leg and discharged him from active care.Potter had an independent medical evaluation in May 2005. The evaluator provided no assessment of Potter’s mental status, but found he had a twenty-four percent whole person impairment related to his shoulder, leg, and lower back. In June 2005, Potter received a neuropsychological evaluation from Dr. Randolph Waid, a licensed clinical psychologist. Dr. Waid noted Potter’s injuries included “cognitive disorder residuals of traumatic brain injury with interfering effects of pain, sleep disturbance, and fatigue.” He recommended Potter receive psychiatric evaluation and treatment to manage Potter’s “sleep disturbance, mood labiality, as well as depression,” along with a course of psychological counseling to develop “affective compensatory strategies and antidepressants.” Potter’s attorney referred him to Dr. Collings for another evaluation in September 2005. After an examination and a review of previous medical reports, Dr. Collings opined: “I do not feel that Mr. Potter has any significant ongoing neurologic difficulty from the fall on 12/18/03.”
On January 6, 2006, Potter filed a Form 50 alleging he sustained compensable injuries to his “brain, shoulder, back, hip, leg, and head” when he fell from the ladder. By consent order, the parties agreed for Potter to be referred to Dr. David Tollison for psychological evaluation and treatment, which began on June 20, 2006, and continued until March 14, 2007. During the course of treatment, the School District filed a Form 21 requesting a hearing to determine the amount of compensation to be paid to Potter. Potter was released by Dr. Tollison in March 2007 at psychological maximum medical improvement and told to return if needed. On August 30, 2007, the School District denied Potter sustained any compensable permanent brain damage or that Potter was permanently and totally disabled.
The single commissioner held an evidentiary hearing on December 4, 2007, and filed an order on January 8, 2008, holding: (1) Potter sustained a compensable injury by accident to his right leg; (2) Potter reached maximum medical improvement with a thirty percent partial disability to the right leg; (3) Potter was not disabled from his job because of his injuries; and (4) he did not suffer any physical brain damage causally related to the admitted accident. Citing McLeod v. Piggly Wiggly Co., 280 S.C. 466, 471, 313 S.E.2d 38, 41 (Ct. App. 1984), the order noted that Dr. Waid is a clinical psychologist, not a neurosurgeon or a medical doctor, and his opinion “concerning alleged brain damage is beyond [h]is area of expertise.” Additionally, the order stated “greater weight is given to the opinion of the treating physician” with respect to Potter’s“injuries and body parts involved.”
Potter appealed, and a majority of the Appellate Panel affirmed the findings and conclusions of the single commissioner with some additional findings. The Appellate Panel further found that although Potter did suffer a psychological overlay from his injury, he did not sustain any permanent partial disability as a result of the psychological overlay. In his dissent, Commissioner J. Alan Bass disagreed with the findings that Dr. Waid was unqualified to render an opinion concerning brain damage and that Potter did not suffer any brain damage causally-related to the admitted accident. Potter appealed to the circuit court. The circuit court found substantial evidence in the record supported the specific findings of fact made by the Appellate Panel and the decision was not affected by an error of law; therefore, the circuit court affirmed the findings and conclusions of the Appellate Panel. This appeal followed.
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act establishes the substantial evidence standard for judicial review of decisions by the Commission. S.C. Code Ann. § 1-23-380 (Supp. 2010); Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). Under the substantial evidence standard of review, this court may not “substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law.” Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004). “Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusions the administrative agency reached in order to justify its actions.” Brought v. S. of the Border, 336 S.C. 488, 495, 520 S.E.2d 634, 637 (Ct. App. 1999). In workers’ compensation cases, the Appellate Panel is the ultimate fact finder. Shealy v. Aiken Cnty, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). The Appellate Panel is reserved the task of assessing the credibility of the witnesses and the weight to be accorded evidence. Id.
LAW/ANALYSIS
I. Physical Brain Damages Causally Related to the Accident
Potter argues the circuit court erred in affirming the Appellate Panel’s finding that he did not suffer any physical brain damage causally related to the accident, based on the Appellate Panel’s misinterpretation of McLeod v. Piggly Wiggly Co., and ignoring Tiller v. National Health Care Center, 334 S.C. 333, 513 S.E.2d 843 (1999). Potter suggests Tiller stands for the proposition that medical evidence is not required in workers’ compensation claims, even in medically complex cases, thus he is entitled to a determination of physical brain damage based on the medical testimony presented to the Appellate Panel. We disagree.
The Appellate Panel is given discretion to weigh and consider all the evidence, both lay and expert, when deciding whether causation has been established. Ballenger v. S. Worsted Corp., 209 S.C. 463, 467, 40 S.E.2d 681, 685 (1946); Tiller, 334 S.C. at 340, 513 S.E.2d at 846. Thus, while medical testimony is entitled to great respect, the fact finder may disregard it if other competent evidence is presented. Id. Expert medical testimony is intended to aid the Appellate Panel in coming to the correct conclusion. Corbin v. Kohler Co., 351 S.C. 613, 624, 571 S.E.2d 92, 98 (Ct. App. 2002) (citing Tiller, 334 S.C. at 340, 513 S.E.2d at 846). The final determination of witness credibility and the weight to be accorded evidence is reserved to the Appellate Panel. Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).
The Appellate Panel, as the ultimate fact finder, was within its discretion to rely on McLeod in determining the weight Dr. Waid’s opinion should be afforded. McLeod provides the Appellate Panel with the ability to ascertain the proficiency of an expert and to decide whether a “higher degree of expertise” is needed regarding an award. 280 S.C. at 471, 313 S.E.2d at 41 (holding the award should be remanded for redetermination when an alleged defect and injury sustained by the claimant concerned a complicated area of the body requiring a higher degree of expertise than provided to the Appellate Panel). In this case, Dr. Waid’s opinion, as a clinical psychologist, was reviewed and given a lesser weight due to the Appellate Panel’s evaluation of Waid’s opinion concerning alleged brain damage based on his expertise presented to the Appellate Panel.
The Appellate Panel’s reliance on McLeod does not disregard Tiller. Tiller allows Dr. Waid’s opinion to be taken into consideration by the Appellate Panel as it weighs and considers all the evidence, both lay and expert, when determining whether causation has been established. While medical testimony is entitled to great respect, the Appellate Panel may disregard it if the record contains other competent evidence. Id. Nor is the Appellate Panel bound by the opinion of medical experts. Sanders v. MeadWestvaco Corp., 371 S.C. 284, 292, 638 S.E.2d 66, 71 (Ct. App. 2006). In this case, the Appellate Panel was presented with medical evidence fromPotter’s emergency room physician, Potter’s primary physician, a neurologist, and a psychologist. The Appellate Panel committed no error of law by relying on McLeod in its assessment of Dr. Waid’s credibility and the weight to afford his opinion, as it made its factual findings regarding physical brain damage. Furthermore, “`it is not for this court to balance objective against subjective findings of medical witnesses, or to weigh the testimony of one witness against that of another.’ That function belongs to the Appellate Panel alone.” Id. (quoting Roper v. Kimbrell’s of Greenville, 231 S.C. 453, 461, 99 S.E.2d 52, 57 (1957)). We therefore affirm.
II. Remaining Issues
The remaining issues have been abandoned by Potter because he fails to cite any statute, rule, or legal authority for the three issues in his brief. An issue is deemed abandoned if the argument in the brief is not supported by authority or is only conclusory. See In the Matter of the Care & Treatment of McCracken, 346 S.C. 87, 92-3, 551 S.E.2d 235, 238-39 (2001)(finding issues were abandoned because there was no specific legal ground upon which the court could rely); see also Pack v. S.C. Dep’t of Transp., 381 S.C. 526, 532, 673 S.E.2d 461, 464 (Ct. App. 2009) (holding appellant abandoned issue when she cited no legal authority to support her argument). While Potter’s brief suggests other facts that could have been considered by the Appellate Panel, he gives this court no substantive legal authority upon which to rely. Accordingly, these issues are abandoned.
CONCLUSION
The decision of the circuit court affirming the Appellate Panel’s findings of fact and conclusions of law is
AFFIRMED.
SHORT and GEATHERS, JJ., concur.
Jan 21, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This recent SC Supreme Court case is starting to open the door to landlord liability for dogbite cases, at least if the landlord is “on notice” and the attack occurs in a “common area.” We welcome this decision as SC is recognizing that landlords should not be able to escape responsibility for renting to tenants with dangerous animals. Most insurance companies no longer even offer coverage for many types of dogs (dangerous or otherwise). Therefore, landlords may be the only option, when negligent, for obtaining insurance funds for serious dogbite injuries. Dogbite cases vary from minor scratches to serious bite wounds, even wrongful death. Many persons and children find themselves in real trouble quickly. If you see an unsecured dog that seems even mildly aggressive, takes steps to immediately seek a safe area. And never attempt to stop a fight between dogs or you could easily become a serious injury victim yourself.
Premises liability cases are almost always aggressively defended. These cases require experienced trial attorneys. At Reeves, Aiken & Hightower, LLP, our personal injury attorneys have over 70 years combined litigation experience in both civil and criminal courts. We are able to serve clients in both South Carolina and North Carolina. We welcome the opportunity to meet with you and personally review your case. Compare our lawyers’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Theresa Charlene Clea, individually and as Guardian ad Litem for Trevon C., a minor under 18 years of age, Appellant,
v.
Lana Odom, Personal Representative of the Estate of Edward Carter and Essix Shannon, Respondents.
Appeal From Sumter County
George C. James, Jr., Circuit Court Judge
Opinion No. 27029
Heard May 3, 2011 – Filed August 22, 2011
AFFIRMED IN PART; REVERSED IN PART
Stephen Benjamin Samuels, of Samuels Law Firm, of Columbia, for Appellant.
Adam Tremaine Silvernail, of Law Office of Adam T. Silvernail, of Columbia, for Respondents.
JUSTICE PLEICONES: Appellant filed suit to recover for personal injuries sustained by her son (Trevon) after he was bitten by respondent Essix Shannon’s dog.[1] The circuit court granted summary judgment in favor of respondent. We affirm in part and reverse in part, finding there is a material question of fact whether the landlord is liable under the theories of strict liability and common law negligence.
FACTS
Respondent owned an apartment complex consisting of two buildings. Shannon, one of respondent’s tenants, owned a dog that he kept chained to a tree in a common area near the back of the complex. At the time of the incident, Shannon had kept the dog chained to the tree for nearly ten years. Shannon never kept the dog inside of his apartment. According to Shannon, respondent would occasionally “come over there and sit down and . . . give [the dog] a little – a handful [of food], sit and play with him.” Respondent never otherwise cared for the dog.
On the day of the incident, appellant had taken her three children to visit her sister, who lived at the apartment complex. Appellant’s aunt also lived in the apartment complex in the building opposite appellant’s sister’s residence. At some point during the day, appellant agreed to take her aunt to the store and began walking with her three children to the aunt’s building. As she walked, appellant was carrying her baby and talking on a cordless phone. As they approached the aunt’s apartment, two-year-old Trevon saw the dog and ran over to it. The dog ran to the end of its chain and began attacking Trevon. Neither Shannon nor respondent were present at the complex at the time of the incident. Trevon suffered numerous injuries, for which his medical bills totaled approximately $17,000.
After the incident, appellant discovered the dog had previously attacked a six-year-old-boy. Appellant’s sister told her respondent had threatened to require Shannon get rid of the dog after the previous attack, but never did so.
Appellant instituted this action, arguing respondent was liable for Trevon’s injuries under three theories: (1) strict liability under S.C. Code Ann. § 47-3-110 (1987); (2) common law negligence; and (3) attractive nuisance. The circuit court granted summary judgment in favor of respondent as to all causes of action.
ISSUES
I. Did the circuit court err in granting summary judgment in favor of respondent as to appellant’s strict liability claim?
II. Did the circuit court err in granting summary judgment in favor of respondent as to appellant’s common law negligence claim?
III. Did the circuit court err in granting summary judgment in favor of respondent as to appellant’s attractive nuisance claim?
STANDARD OF REVIEW
When reviewing an order granting summary judgment, the appellate court applies the same standard as the trial court. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party must prevail as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of material fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Fleming, 350 S.C. at 493-94, 567 S.E.2d at 860.
I. Strict Liability
Appellant first argues the circuit court erred in granting summary judgment in favor of respondent as to appellant’s strict liability claim. We agree.
Our state’s “dog bite” statute imposes strict liability against the owner of the dog or any other person having the dog in its care or keeping:
Whenever any person is bitten or otherwise attacked by a dog while the person is in a public place or is lawfully in a private place, including the property of the owner of the dog or other person having the dog in his care or keeping, the owner of the dog or other person having the dog in his care or keeping is liable for the damages suffered by the person bitten or otherwise attacked.
S.C. Code Ann. § 47-3-110 (1987) (emphasis supplied).
“The Legislature’s use of the phrase ‘care or keeping’ clearly requires that the ‘other person’ act in a manner which manifests an acceptance of responsibility for the care or keeping of the dog.” Harris v. Anderson County Sheriff’s Office, 381 S.C. 357, 364, 673 S.E.2d 423, 427 (2009). “To this degree, the Legislature retained the common law principle of duty in determining the liability of the ‘other person.'” Id. The presence or absence of a duty determines liability in situations that involve a statutory claim against a person having the dog in his care or keeping. Id. at 365, 673 S.E.2d at 427. There are three scenarios under § 47-3-110 when the attack is unprovoked and the injured party is lawfully on the premises:
First, the dog owner is strictly liable and common law principles are not implicated. Second, a property owner is liable when he exercises control over, and assumes responsibility for, the care and keeping of the dog. Third, a property owner is not liable under the statute when he has no control of the premises and provides no care or keeping of the dog.
Id. at 365-66, 673 S.E.2d at 427.
The circuit court granted summary judgment in favor of respondent as to appellant’s claim for strict liability, finding respondent was neither the dog’s owner, nor was the dog in respondent’s care or keeping.
We find the circuit court erred in granted summary judgment in favor of respondent as to the strict liability claim. Because respondent was not the dog’s owner, in order to be liable as a property owner, respondent would have to have exercised control over the premises and assumed some duty to care for or keep the dog before liability could attach. Harris, supra. It is clear respondent exercised exclusive control over the common area where the dog was kept. Moreover, viewing the evidence in the light most favorable to appellant, we find there was a genuine issue of material fact whether respondent assumed responsibility for the keeping of the dog. Fleming, supra. Respondent knew the dog was chained to the tree in the common area over which he had control. Because the dog was continuously kept in this area, we find there was a genuine issue of material fact whether respondent had the dog in his keeping and reverse the circuit court’s grant of summary judgment as to appellant’s strict liability claim. Cf.Nesbitt v. Lewis, 335 S.C. 441, 517 S.E.2d 11 (Ct. App. 1999) (partial owner of the residence at which a minor child was attacked by dogs who had not lived at the residence for over five years and did not care for the dogs did not owe a duty to the injured child because she lacked possession over the house and the dogs).
II. Common law negligence
Appellant also argues the circuit court erred in granting summary judgment in favor of respondent on appellant’s claims of common law negligence. Specifically, appellant argues the circuit court erred in dismissing her complaint on the basis that a landlord is not liable for injuries caused by a tenant’s dog kept on leased property. We agree.
Under the common law of our state, a landlord is not liable to a tenant’s invitee for injuries inflicted by an animal kept by a tenant on leased property. See Gilbert v. Miller, 356 S.C. 25, 586 S.E.2d 861 (Ct. App. 2003) (circuit court granted summary judgment on negligence claim, finding landlord was not liable where one tenant’s dog attacked another tenant); see also Bruce v. Durney, 341 S.C. 563, 534 S.E.2d 720 (Ct. App. 2000) (landlord was not liable where a dog kept on tenant’s leased property bit a child).
In Fair v. United States of America, 334 S.C. 321, 513 S.E.2d 616 (1999), the Court discussed whether the Residential Landlord Tenant Act (RLTA) altered the common law rule that a landlord is not liable to a tenant’s invitee for an injury caused by a tenant’s dog. The Court held that under the “fit and habitable”[
2] provision of the RLTA, a landlord is liable only for defects relating to the inherent physical state of the leased premises. Fair, 334 S.C. at 323-24, 513 S.E.2d at 617. The Court therefore held the RLTA does not alter the common law rule. Id.
The RLTA further provides that a landlord shall “keep all common areas of the premises in a reasonably safe condition . . . .” S.C. Code Ann. § 27-40-440(a)(3) (2007).
Whether a landlord can be liable for injuries inflicted upon an invitee or licensee where the attack occurs in the common area of an apartment complex, i.e. whether § 27-40-440(a)(3) alters the common law rule, is a novel issue in this state. We therefore turn to other jurisdictions for guidance on this issue.
In Lidster v. Jones, 176 Ga.App. 392, 336 S.E.2d 287 (Ga. App.1985), the Georgia Court of Appeals reversed the grant of summary judgment as to the appellant’s negligence action, holding a landlord could be liable where a tenant’s dog bit a child. The appellant alleged the landlord had actual knowledge of the dog’s vicious propensities because he knew the dog had previously attacked another child, and that the landlord did nothing to keep the dog out of the complex’s common area. The court held that summary judgment was improper because a landlord who retains control over the common areas of a complex to which tenants and others were allowed access had a duty under a statute similar to the RLTA[3] to keep the common areas safe. Further, the court distinguished that case from another case in which the court determined a landlord was not liable because he did not own or maintain the dog that bit the victim, noting that the case did not involve a landlord’s obligation to keep the common areas of the leased premises safe.
In Gentle v. Pine Valley Apartments, 631 So.2d 928 (Ala. 1994), the Alabama Supreme Court held the presence of a tenant’s vicious dog in a common area constituted a dangerous condition and that a landlord must exercise reasonable care to prevent injuries from such a dangerous condition, but only to the extent he was aware of its existence.
Here, the circuit court found respondent could have no liability for common law negligence because a landlord is not liable for injuries caused by an animal kept by a tenant on leased property. The court further found the fact that the dog was kept in a common area did not affect respondent’s liability since “leased property” includes common areas.
We find the circuit court erred in granting summary judgment in favor of respondent as to appellant’s common law negligence claims. While it is true that a landlord is typically not liable to someone attacked by a tenant’s dog while that person is on the leased property, this case is distinguishable from other cases in our jurisdiction because those cases did not involve attacks occurring in common areas. We find this case is consonant with those cases from other jurisdictions where the landlord could be liable where the attack occurred in a common area. There was evidence respondent had actual knowledge of the dog’s vicious propensity as it had previously attacked a child, and respondent failed to remedy the situation. Accordingly, we find the circuit court erred in finding respondent could not be liable for the attack under a common law negligence theory.
III. Attractive nuisance
Appellant finally argues the circuit court erred in granting summary judgment in favor of respondent as to appellant’s attractive nuisance claim. We disagree.
The attractive nuisance doctrine provides that where the owner or occupier of land brings or artificially creates something which, from its nature, is especially attractive to children, he is bound to take reasonable pains to see that the dangerous thing is so guarded that children will not be injured in coming into contact with it. Henson ex rel. Hunt v. International Paper Co., 374 S.C. 375, 381, 650 S.E.2d 74, 77 (2007).
The circuit court found there was no genuine issue of material fact as to whether the presence of the dog in the common area constituted an attractive nuisance. Specifically, the circuit court found the presence of the dog was not an “artificial condition” on the land.
Whether a dog can be considered an “artificial condition” for the purposes of determining a property landowner’s liability under the attractive nuisance theory is a novel issue in this state. We are persuaded by the jurisprudence of several other states that have determined dogs and other domesticated animals cannot be considered an artificial condition. See Hartsock v. Bandhauer, 158 Ariz. 591, 764 P.2d 352 (Ariz. App. 1988) (dogs are not considered an “artificial condition” as required for liability under the attractive nuisance doctrine); see also Aponte v. Castor, 155 Ohio App.3d 553, 802 N.E.2d 171 (Ohio App. 2003) (finding no authority in Ohio law that establishes a horse is an artificial condition); Gonzalez v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907 (Wis. 1975) (a dog cannot qualify as an attractive nuisance because “[a]lthough such a condition need not be permanently erected upon the land, it must be ‘artificially construed.'”).
We hold the circuit court properly found a dog cannot be considered an “artificial condition” under an attractive nuisance theory.
CONCLUSION
We find the circuit court erred in granting summary judgment as to appellant’s strict liability and common law negligence claims. We find the circuit court properly granted summary judgment as to appellant’s attractive nuisance claim. Accordingly, the circuit court’s order is
AFFIRMED IN PART AND REVERSED IN PART.
TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] Appellant settled the case with respect to respondent Shannon. Shannon’s co-defendant, Edward Carter, died after the action was instituted. Although the personal representative of Carter’s estate is technically the respondent here, for simplicity, we refer to Carter himself as “respondent.”
[2] S.C. Code Ann. § 27-40-440(a)(2) (2007) (“a landlord shall . . . make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition”).
[3] OCGA § 51-3-1.
Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation, Wrongful Death
This recent workers’ compensation case reaffirms that third party cases must be handled properly or remedies can be “elected” (i.e. lost). Accidents “on the job” can sometimes involve cases against “third parties.” Automobile accidents while at work or jobs where other employees from a different company cause injury are common such examples. In those cases, you should first finish treatment and resolve your workers’ compensation case. Then, and only then, you should explore a third party case. You can recover money for “pain and suffering” in the third party case, and there will be a lien on any recovery from the workers’ compensation insurance carrier. However, if handled properly, an experienced personal injury trial attorney can maximize your case’s value and ultimate recovery.
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know how to anticipate and prepare for defenses and insurance company tactics. During our twenty-two (22) years each of practicing law, we have successfully handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
Stephen Brad Wise, Appellant,
v.
Richard Wise d/b/a Wise Services and the South Carolina Uninsured Employers Fund, Respondents.
Opinion No. 4879.Court of Appeals of South Carolina.Heard November 4, 2010.Filed August 24, 2011.Pope D. Johnson, of Columbia, for Appellant.
John G. Felder, of St. Matthews; Robert Merrell Cook, II, of Batesburg-Leesville, for Respondents.
KONDUROS, J.:
Stephen Brad Wise (Claimant) appeals the circuit court’s dismissal of his workers’ compensation claim that arose from the same facts as a civil action he settled against a third party and a default judgment he obtained against his employer. He maintains the circuit court could not take judicial notice of the existence of his civil action when evidence of that claim did not appear in the appellate record. We affirm.
FACTS/PROCEDURAL HISTORY
This workers’ compensation action arose out of an accident Claimant had on October 30, 2000, while working for Richard Wise d/b/a Wise Services (Employer).[1] Claimant was riding on top of a bank building that was being moved when he came into contact with a high voltage electrical line in Orangeburg, South Carolina and sustained severe burns as a result. On June 26, 2001, Claimant filed a Form 50 against Employer for medical and compensation benefits for his injuries. On July 13, 2001, Employer filed a Form 51, denying Claimant was an employee and asserting he was an independent contractor. Additionally, Employer contended it was not covered by the Workers’ Compensation Act (the Act) because it does not have the requisite number of employees. Employer also maintained if Claimant was an employee, he was a casual employee and thus exempt under section 42-1-360 of the South Carolina Code. The South Carolina Uninsured Employers’ Fund (the Fund) contended Claimant was not subject to the Act. It further asserted that if Claimant was a covered employee, his weekly wage should be figured at the minimum compensation of $75 per week because he failed to file a tax return for his wages from Employer.
On May 2, 2002, the single commissioner held a hearing on the matter. On October 18, 2002, five months after the single commissioner conducted the hearing but prior to its issuing the order, Claimant filed a tort action against Employer and the City of Orangeburg (the City). On November 26, 2003, the single commissioner issued an order denying the claim, finding Employer regularly employed only three employees and thus was exempt from the Act and not required to provide workers’ compensation insurance coverage. The single commissioner further found because Employer was exempt from coverage, the Fund had no responsibility to provide benefits to Claimant. Finally, the single commissioner found the Workers’ Compensation Commission had no jurisdiction over the claim and dismissed it.
On December 8, 2003, Claimant filed a Form 30 appealing the single commissioner’s order to the Appellate Panel. On January 4, 2004, Claimant obtained a default judgment in the amount of $900,000 in the tort action against Employer. Claimant and the City reached a settlement.
On June 22, 2004, the Fund filed a motion to dismiss the appeal or order new evidence taken before the single commissioner. The Fund contended Claimant had waived his right to appeal his claim by filing suit against Employer alleging his employment did not fall within the scope of the Act and prosecuting that action to a final judgment of $900,000. Additionally, the Fund maintained Claimant did not notify it or the Commission of his suit against the City as a third-party tortfeasor, which section 42-1-560(b) of the South Carolina Code requires, and as a result he elected his remedy and was barred from receiving any benefits under the Act. The Fund provided an affidavit, a copy of Claimant’s summons and complaint against Employer and the City, the default judgment against Employer, and the order from February 24, 2004, dismissing the action against the City with prejudice. The Appellate Panel dismissed the workers’ compensation action, finding (1) Claimant, Employer, or their attorneys did not notify the Commission or the Fund of the civil suit; (2) when Claimant filed his civil action on the same issues that were before the Commission, the matter was removed from the Commission’s jurisdiction, and the Claimant alleged his employment did not fall within the parameters of the Act; and (3) accordingly, the matter is res judicata.
Claimant appealed to the circuit court, which reversed the order to dismiss, finding Regulation 67-215(B)(1) of the South Carolina Code of Regulations prohibited the Appellate Panel from addressing a motion to dismiss. The circuit court remanded the action to the Full Commission for it to consider the Fund’s motion to submit new evidence. The Full Commission then remanded the matter to the Appellate Panel, which granted the motion to submit additional evidence and remanded the action to the single commissioner to consider the new evidence. Claimant appealed the Appellate Panel’s allowance of additional evidence to the circuit court, which reversed the Appellate Panel, finding the Appellate Panel’s order was too summary to allow a meaningful review. On remand, the Full Commission issued an order granting the Fund’s motion to submit additional evidence, finding the record contains no evidence contrary or similar to the new evidence; thus, the new evidence was not cumulative or impeaching. Accordingly, the Full Commission remanded the action to the single commissioner to determine whether Claimant had elected his remedy.
Claimant again appealed to the circuit court, asserting the evidence did not fit the meaning of newly discovered evidence under Regulation 67-707 of the South Carolina Code. The circuit court reversed, finding the evidence did not constitute newly discovered evidence under Regulation 67-707. The circuit court stated: “The evidence of facts sought to be admitted did not exist at the time of the hearing before the [s]ingle [c]ommissioner. . . . [T]he evidence sought to be admitted does not constitute after discovered evidence within the meaning of Regulation 67-707.” (quoting State v. Haulcomb, 260 S.C. 260, 270, 195 S.E.2d 601, 606 (1973) (“[A]fter discovered evidence refers to facts existing at time of trial of which . . . [the] aggrieved party was excusably ignorant.”)). On remand, the Appellate Panel denied the Fund’s motion to admit additional evidence pursuant to Regulation 67-707 and ordered Claimant’s appeal as to whether Employer was subject to the Act be set for a hearing. Following the hearing, the Appellate Panel reversed the single commissioner, finding Employer had four employees in his employment, and thus, it was subject to the Act. The Fund appealed to the circuit court, which reversed the Appellate Panel, finding the action was “barred by the election of remedies of the [C]laimant by instituting and settling his tort claims without notice to and the consent of the [E]mployer and the [Fund].” The circuit court also found in the alternative, “pursuant to the election of jurisdiction provision of [s]ection 42-5-40 the Commission was divested of jurisdiction over this claim and its order is vacated.”[2] This appeal followed.
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). This court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse when the decision is affected by an error of law. Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).
The substantial evidence rule governs the standard of review in workers’ compensation decisions. Frame v. Resort Servs. Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct. App. 2004). The Appellate Panel’s decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct. App. 2005). An appellate court can reverse or modify the Appellate Panel’s decision only if the decision is affected by an error of law or is “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct. App. 2005) (citations and internal quotation marks omitted).
LAW/ANALYSIS
Claimant argues the circuit court erred in considering the documents relating to the civil action because they were not part of the record. He further contends the circuit court erred in taking judicial notice of the civil action because the Fund never requested the Appellate Panel take notice of it or raise it as a ground on appeal. We disagree.
I. Election of Remedies/Third-Party Action
When an employee’s claim arises out of and in the course of his or her employment, the Act provides the exclusive remedy. See Sabb v. S.C. State Univ., 350 S.C. 416, 422, 567 S.E.2d 231, 234 (2002). “Every employer and employee . . . shall be presumed to have accepted the provisions of this title respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment and shall be bound thereby.” S.C. Code Ann. § 42-1-310 (Supp. 2010).
“When an employee and his or her employer accept the provisions of the Act, the employee’s remedies under the Act exclude all other rights and remedies of the employee.” Harrell v. Pineland Plantation, Ltd., 337 S.C. 313, 325-26, 523 S.E.2d 766, 772 (1999) (citing S.C. Code Ann. § 42-1-540 (1985)).
THIS SECTION IS KNOWN AS THE EXCLUSIVE REMEDY PROVISION, AND IT shrouds an employer with immunity from any actions at law instituted by the employee. Such immunity is part of the broader quid pro quo arrangement imposed upon the employer and employee by the Act. The employee” receives the right to swift and sure compensation” in exchange for giving up the right to sue in tort; the employer receives such tort immunity in exchange for complying with those provisions of the Act that insure swift and sure compensation for the employee.
Id. at 326, 523 S.E.2d at 772. “The Act achieves such’ swift and sure compensation’ by requiring the employer to secure the payment of compensation under [section 42-5-10 of the South Carolina Code (1985)].” Id. at 326, 523 S.E.2d at 773. Section 42-5-10 provides: “Every employer who accepts the compensation provisions of this Title shall secure the payment of compensation to his employees in the manner provided in this chapter.” An employer that fails to secure such compensation becomes liable either under the Act or in an action at law.Harrell, 337 S.C. at 327, 523 S.E.2d at 773 (citing S.C. Code Ann. § 42-5-40 (1985)). “[T]he Act prohibits an employee from recovering both workers’ compensation and a tort judgment from an employer who fails to secure compensation.” Id. at 329, 523 S.E.2d at 774.
A claimant has three remedies for job-related injuries:
(1) To proceed solely against the employer thereby allowing the employer-carrier the opportunity to pursue reimbursement against the third party for its obligated payments.
(2) To proceed solely against the third party tort feasor under [section] 42-1-550 by instituting and prosecuting an action at law; and
(3) To proceed against both the employer-carrier and the third party tort feasor by complying with [section] 42-1-560.
Callahan v. Beaufort County Sch. Dist., 375 S.C. 92, 95-96, 651 S.E.2d 311, 313 (2007).
Section 42-1-560 of the South Carolina Code (1985) provides the requirements for simultaneously pursuing a third-party action and a workers’ compensation claim. It states: “Notice of the commencement of the [third-party] action shall be given within thirty days thereafter to the . . . Commission, the employer[,] and carrier upon a form prescribed by the . . . Commission.” § 42-1-560(b). The statute clearly requires timely notice be given to all three entities: employer, carrier, and Commission. Callahan, 375 S.C. at 96, 651 S.E.2d at 314. “The object of [section] 42-1-560 is to effect an equitable adjustment of the rights of all the parties. It would defeat this objective to allow the employee to demand compensation from the employer after having destroyed the employer’s normal right to obtain reimbursement from the third party.” Fisher v. S.C. Dep’t. of Mental Retardation-Coastal Ctr., 277 S.C. 573, 575-76, 291 S.E.2d 200, 201 (1982) (citation and internal quotation marks omitted). “[T]he settlement of a third party claim without notice to the employer and carrier bars a workers’ compensation action.” Kimmer v. Murata of Am., Inc., 372 S.C. 39, 52, 640 S.E.2d 507, 513-14 (Ct. App. 2006). In Fisher, the supreme court held that a claimant had elected a remedy, thus forgoing workers’ compensation benefits, by settling a third-party claim without complying with the notice requirements of section 42-1-560, even though the carrier had actual knowledge of the third-party suit. Id.
This court has previously explained the reasoning behind a settlement serving as a bar to a workers’ compensation action:
As a result of the failure to notify of a third party claim, the employer-carrier loses a voice in the litigation and is clearly prejudiced. That voice encompasses the right to select one’s own counsel, conduct one’s own investigation, and direct the litigation. Notice makes it possible for the employer-carrier to offer the employee meaningful assistance in prosecuting the third party claim. With timely knowledge the employer-carrier gains the opportunity to lend support to an effort that could lead to the carrier’s recovery of some or all of the compensation it might later be required to pay the injured employee under the Workers’ Compensation Act. The statute’s underlying purpose serves to protect the carrier’s subrogation interests and prevents an employee’s double recovery.
Kimmer, 372 S.C. at 51, 640 S.E.2d at 513 (citations omitted).
Case law makes clear that an employee cannot recover against an employer under both a workers’ compensation action and a civil action. Here, Claimant recovered $900,000 from Employer in the form of a default judgment. Further, because Claimant did not strictly comply with the notice provisions in filing suit against a third party, he is barred from recovering under the Act. However, we must determine if the evidence of the civil suit could be admitted as new evidence or the circuit court could take judicial notice of it.
II. Judicial Notice
“Notice may be taken of judicially cognizable facts” in administrative cases. S.C. Code Ann. § 1-23-330(4) (2005).
Appellate courts are generally reluctant to notice adjudicative facts even when those facts may be absolutely reliable. Notice of “facts” for the first time on appeal may deny the adverse party the opportunity to contest the matters noticed; it may also violate the general principle that appellate review should be limited to the record. Finally, appellate courts, limited to the “cold” record, cannot be as sensitive to the appropriateness of judicial notice as the trial judge. For the foregoing reasons we hold that original judicial notice of adjudicative facts at the appellate level should be limited to matters which are indisputable.
Masters v. Rodgers Dev., 283 S.C. 251, 256, 321 S.E.2d 194, 197 (Ct. App. 1984) (citations omitted). “A court can take judicial notice of its own records, files[,] and proceedings for all proper purposes including facts established in its records.” Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct. App. 1984). “It is not error for a judge to take judicial notice of what was stated in [a] former opinion in [a] prior action of the same case.” Id.
Claimant’s argument as to judicial notice revolves around the fact that the Fund did not request the Appellate Panel take judicial notice of the suit or raise judicial notice in its grounds on appeal to the circuit court. As Claimant’s own case law states, an appellate court can take judicial notice of something that was not before the trial court if it is indisputable. The summons and complaint and default judgment show that Claimant did file an action and recover against Employer thus making that his exclusive remedy. Additionally, he filed suit and entered a settlement against a third party without providing any notice to the Fund or the Commission as required by statute, thus barring the workers’ compensation action.
III. Additional Evidence
Additionally, the evidence of the civil claim could be admitted as new evidence under Regulation 67-707 of the South Carolina Code of Regulations (Supp. 2010), which provides the requirements for the admission of additional evidence in workers’ compensation cases. Regulation 67-707 states:
A. When additional evidence is necessary for the completion of the record in a case on review the Commission may, in its discretion, order such evidence taken before a Commissioner.
B. When a party seeks to introduce new evidence into the record on a case on review, the party shall file a motion and affidavit with the Commission’s Judicial Department.
C. The moving party must establish the new evidence is of the same nature and character required for granting a new trial and show:
(1) The evidence sought to be introduced is not evidence of a cumulative or impeaching character but would likely have produced a different result had the evidence been procurable at the first hearing; and
(2) The evidence was not known to the moving party at the time of the first hearing, by reasonable diligence the new evidence could not have been secured, and the discovery of the new evidence is being brought to the attention of the Commission immediately upon its discovery.
Claimant argues because the circuit court originally found it was not newly discovered evidence and the Fund did not appeal, it was the law of the case. However, an appeal of that ruling would have been interlocutory. See Leviner v. Sonoco Prods. Co., 339 S.C. 492, 494, 530 S.E.2d 127, 128 (2000) (holding an order by the circuit court remanding the matter to the single commissioner for further proceedings was not directly appealable). Therefore, the circuit court’s original decision to not allow the evidence as newly discovered was not the law of the case.
The evidence of the civil claim meets the criteria in the Regulation for the admission of new evidence: (1) it is not cumulative or impeaching character and would have produced a different result if produced at the first hearing and (2) was not known and could not have been discovered at the time of the first hearing and was brought to the attention of the Commission immediately upon its discovery. Nothing requires that the facts be in existence at the time of the first hearing by the single commissioner.[3] Accordingly, the circuit court’s decision is
AFFIRMED.
HUFF and LOCKEMY, JJ., concur.
[1] We note at the outset the procedural history of this case is difficult to follow.
[2] The circuit court stated it had erred in its prior determination that the evidence of the existence of Claimant’s tort action, default judgment, and settlement could not be admitted under Regulation 67-707.
[3] Claimant also argues the circuit court erred in failing to affirm the Appellate Panel’s finding that Employer had four employees and thus was subject to the Act. We need not address this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).
Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This recent SC Supreme Court decision reaffirms that business owners must take reasonable steps to protect their customers from foreseeable criminal acts. This case adopts a commonsense approach to premises liability. Basically, the duty varies depending on the level of risk. Higher risks (high crime area, prior incidents) mandate higher care. Premises liability cases are almost always vigorously defended. Early investigation into all facts and thorough preparation are essential to the outcome of the case. Better make sure your attorney is experienced and willing to fight hard for you and your family.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they collectively understand the criminal, insurance defense, and medical aspects of these very complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
BASS v. GOPAL INC
Gerald BASS, Petitioner, v. GOPAL, INC. and Super 8 Motels, Inc., Defendants, of whom Gopal, Inc. is, Respondent.
No. 27054.
— October 10, 2011
R. Bentz Kirby and Glenn Walters Sr., of Orangeburg, for Petitioner.Andrew F. Lindemann, of Davidson & Lindemann, of Columbia, for Respondent.Deborah J. La Fetra, of Sacramento, and Reynolds Williams, of Willcox, Buyck & Williams, of Florence, for Amicus Curiae Pacific Legal Foundation.
In this premises liability action, we are reviewing the court of appeals’ decision upholding the circuit court’s grant of summary judgment in favor of a motel and its franchisee when a guest was shot in the leg during an attempted robbery outside of his motel door. We affirm.
Facts/Procedural Background
The facts of this case are undisputed. From approximately June 1999 until the end of September 1999, Petitioner Gerald Bass was a guest at the Super 8 Motel (Super 8) in Orangeburg, South Carolina, while he and several co-workers performed refrigeration work at a local grocery store. Gopal, Incorporated (Respondent), a franchisee of Super 8, owned and operated the motel.
The Super 8 is an exterior corridor-style motel. At approximately 10:00 p.m. on the evening of September 28, 1999, Petitioner and his roommate, Wayne Kinlaw, were turning in for the evening when they received a knock at their door. The door was equipped with a peep hole, and there was a large plate glass window beside the door. Looking out the window, Kinlaw did not see anyone at the door and did not open the door. After several minutes, they heard a second knock. This time, Kinlaw and Petitioner noticed a man standing at the door—the same man Petitioner had seen earlier that evening at a convenience store across the street from the motel. Kinlaw asked the man what he wanted through the closed door. They only heard mumbling in response and did not open the door. Approximately fifteen minutes later, they received a third knock at the door. Both men got out of bed, and without looking first to see who was at the door, Kinlaw opened the door. They saw the same man standing a couple of feet from the door and both Kinlaw and Petitioner stepped outside. The man then asked Petitioner for his money, in unsavory terms. When Petitioner refused, the man shot Petitioner in the leg with a small caliber handgun and fled on foot.
In September 2002, Petitioner filed a complaint alleging negligence against both Respondent and Super 8.1Respondent and Super 8 each filed motions for summary judgment, which were granted. The court of appeals affirmed. Bass v. Gopal, Inc. and Super 8 Motels, Inc., 384 S.C. 238, 680 S.E.2d 917 (Ct.App.2009). This case is now before the Court upon grant of Petitioner’s petition for writ of certiorari, pursuant to Rule 242(a), SCACR.
Issue
I. Whether the court of appeals erred in upholding the circuit court’s finding that Respondent did not have a duty to protect Petitioner from the criminal act of a third party.Standard of Review
An appellate court reviews a grant of summary judgment under the same standard required of the circuit court under Rule 56(c), SCRCP. Edwards v. Lexington County Sheriff’s Dep’t, 386 S.C. 285, 290, 688 S.E.2d 125, 128 (2010). Rule 56(c), SCRCP, provides that summary judgment may be granted if a review of all documents submitted to the court shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. In determining whether a genuine issue of material fact exists, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 385 S.C. 452, 456, 684 S.E.2d 756, 758 (2009). In a negligence case, where the burden of proof is a preponderance of the evidence standard, the non-moving party must only submit a mere scintilla of evidence to withstand a motion for summary judgment. Hancock v. Mid–South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).
Analysis
Petitioner argues the court of appeals placed too much emphasis on the lack of evidence of other crimes committed at the motel prior to the assault on Petitioner when it upheld the circuit court’s grant of summary judgment. Petitioner contends the court of appeals should have instead considered the evidence submitted as a whole, arguing the evidence, viewed in its entirety, raised a genuine issue of material fact as to whether Respondent had a duty of care with respect to Petitioner. In our opinion, Petitioner’s submissions to the circuit court provided at least a scintilla of evidence that the criminal assault on Petitioner was foreseeable. However, Petitioner offered no evidence that Respondent’s preventative measures were unreasonable under the circumstances. Therefore, we uphold the circuit court’s grant of summary judgment.
In any negligence action, the threshold issue is whether the defendant owed a duty to the plaintiff. See Daniel v. Days Inn of America, Inc., 292 S.C. 291, 295, 356 S.E.2d 129, 131 (Ct.App.1987) (stating the familiar components of a negligence action—duty, breach, causation, and damages). In South Carolina, while an innkeeper is not the insurer of safety of its guests, it is settled that an innkeeper “is under a duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm.” Allen v. Greenville Hotel Partners, Inc., 405 F.Supp.2d 653, 659 (D.S.C.2005) (quoting Courtney v. Remler, 566 F.Supp. 1225, 1231 (D.S.C.1983)). As a guest at the motel, Respondent undoubtedly had a duty to protect Petitioner on some level. The extent of that duty may be determined with an analysis of whether the innkeeper knew or had reason to know of a probability of harm to its guests. Daniel, 292 S.C. at 296, 356 S.E.2d at 132 (citing Courtney, 566 F.Supp. at 1232). Perhaps a clearer description of a business owner’s duty, then, is that a business owner has a duty to take reasonable action to protect its invitees against the foreseeable risk of physical harm.
Four basic approaches to the foreseeability issue have emerged amongst jurisdictions nationally. Miletic v. Wal–Mart Stores, Inc ., 339 S.C. 327, 331, 529 S.E.2d 68, 69 (Ct.App.2000) (citing Posecai v. Wal–Mart Stores, Inc., 752 So.2d 762, 766 (La.1999)). The first approach, considered to be somewhat outdated, is known as the imminent harm rule. Miletic, 339 S.C. at 331, 529 S.E.2d at 69. Under this rule, the landowner owes no duty to protect patrons from violent acts of third parties unless he is aware of specific and imminent harm about to befall him. Id. at 331, 529 S.E.2d at 70. This Court adopted this rule in Shipes v. Piggly Wiggly St. Andrews, Inc.:
There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises do not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises.
269 S.C. 479, 484, 238 S.E.2d 167, 169 (1977) (quoting and expounding the rule in Cornpropst v. Sloan, 528 S.W.2d 188, 198 (Tenn.1975)) (emphasis supplied). This standard has been criticized as imposing too minimal a duty on business owners to protect patrons. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972 (Ind.1999); McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 902 (Tenn.1996). Since adopting this standard, Tennessee has replaced its imminent harm rule with the balancing test, discussed below. McClung, 937 S.W.2d at 902.
A second approach is the prior or similar incidents test. Miletic, 339 S.C. at 331, 529 S.E.2d at 70 (citing Posecai, 752 So.2d at 765). This is the test urged by Respondent, and in our view, is the test applied by the circuit court and court of appeals in this case. Under this test, foreseeability may only be established by evidence of previous crimes on or near the premises. Id. Courts following this test will consider the nature and extent of previous crimes, their frequency, recency, and similarity to the crime at issue. Id. With this approach, some courts require that prior crimes be of the same general type and nature as the offense at issue, see, e.g., Taylor v. Hocker, 428 N.E.2d 662, 664–65 (Ill.App.Ct.1981) (holding that previous crimes against property were insufficient to put the landowner on notice of personal assaults against its patrons), while others will impose a duty to protect patrons based on past crimes of any type, see, e.g ., Polomie v. Golub Corp., 640 N.Y.S.2d 700, 701 (N.Y.App.Div.1996) (“[T]here is no requirement that the past experience relied on to establish foreseeability be of the same type of criminal conduct to which plaintiff was subjected․”). The prior incidents test offers the same advantages as the imminent harm test—it prevents businesses from effectively becoming the insurer of the public’s safety. However, for the following reasons, we do not believe evidence of prior criminal incidents should be the sine qua non of determining the foreseeability required to establish a duty:
First, the rule leads to results which are contrary to public policy․ [U]nder the rule, the first victim always loses, while subsequent victims are permitted recovery. Such a result is not only unfair, but is inimical to the important policy of compensating injured parties. Surely, a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.
Second, a rule which limits evidence of foreseeability to prior similar criminal acts leads to arbitrary results and distinctions. Under this rule, there is uncertainty as to how “similar” the prior incidents must be to satisfy the rule. The rule raises a number of other troubling questions. For example, how close in time do the prior incidents have to be? How near in location must they be? The rule invites different courts to enunciate different standards of foreseeability based on their resolution of these questions.
Third, the rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts․ The mere fact that a particular kind of an accident has not happened before does not ․ show that such accident is one which might not reasonably have been anticipated. Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.
Isaacs v. Huntington Mem’l Hosp., 695 P.2d 653, 658–59 (Cal.1985) (internal citations and quotations omitted); see also Michael J. Yelnosky, Comment, Business Inviters’ Duty to Protect Invitees from Criminal Acts, 134 U. Pa. L.Rev. 883, 905 (1986) (observing that the prior similar acts test produces “extraordinarily arbitrary results” and “denies ․ compensation to the first victim”).
A majority of jurisdictions have adopted the totality of the circumstances approach in an effort to prevent the “rigid application of a mechanical” prior incidents rule. Isaacs, 695 P.2d at 659; see also District of Columbia v. Doe, 524 A.2d 30, 33 (D.C.1987); Seibert v. Vic Regnier Builders, Inc., 856 P.2d 1332, 1339 (Ariz.1993); Doud v. Las Vegas Hilton Corp., 864 P.2d 796, 802 (Nev.1993); Clohesy v. Food Circus Supermarkets, Inc., 694 A.2d 1017, 1023–24 (N.J.1997); Reitz v. May Co. Dept. Stores, 583 N.E.2d 1071, 1074 (Ohio Ct.App.1990). Under this test, courts will consider all relevant factual circumstances, “including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.” Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972 (Ind.1999). Therefore, “[t]he lack of prior similar incidents will not preclude a claim where the landowner knew or should have known that the criminal act was foreseeable.” Id. at 973. This test is the broadest of the four approaches.
Because of its broad applicability, the totality of the circumstances approach has been subject to criticism. See Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207, 215 (Cal.1993) (noting that, at the time, it was the only jurisdiction employing the standard); McClung, 937 S.W.2d at 900 (“[T]he totality approach arguably requires businesses to implement expensive security measures (with costs passed on to consumers) and makes them the insurers of customer safety, two results which courts seek to avoid.”); Uri Kaufman, When Crime Pays: Business Landlord’s Duty to Protect Customers from Criminal Acts Committed on the Premises, 31 S. Tex. L.Rev. 89, 112 (1990) (stating the totality approach’s effect is to impose an unqualified duty on businesses in high crime areas to provide elaborate security). The Supreme Court of Tennessee expressed concern over the natural consequence of this test in McClung v. Delta Square Limited Partnership: “[b]usinesses may react by moving from poorer areas where crime rates are often the highest. Not surprisingly then, the totality of the circumstances test has been described as ‘imprecise,’ ‘unfair,’ and ‘troublesome’ because it makes liability for merchants even less predictable than under the prior incidents rule.” 937 S.W.2d at 900 (citations omitted). We note that, in McClung, the Supreme Court of Tennessee abandoned the imminent harm test put forth in Cornpropst v. Sloan, the case on which this Court relied in Shipes. We, too, believe that a totality of the circumstances test shifts too great a burden on business owners, and effectively requires businesses to anticipate crime by virtue of the unfortunate fact that crime is endemic in today’s society.
The fourth and final approach adopted by courts is the balancing test; an approach originally formulated by the California Supreme Court, Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207, 214–15 (1993), and that has since been adopted by the supreme courts of Tennessee, McClung, 937 S.W.2d at 902, and Louisiana, Posecai, 752 So.2d at 768. See also Krier v. Safeway Stores 46, Inc., 943 P.2d 405, 415 (Wy.1997) (approving of McClung’s balancing test but not expressly adopting). “The balancing approach acknowledges that duty is a flexible concept, and seeks to balance the degree of foreseeability of harm against the burden of the duty imposed.” McClung, 937 S.W.2d at 901 (citing Ann M., 863 P.2d at 215). As such, the more foreseeable a crime, the more onerous is a business owner’s burden of providing security. McClung, 937 S.W.2d at 901. Under this test, the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner, but their absence does not foreclose the duty to provide some level of security if other factors support a heightened risk. Simply put by Judge Posner of the United States Court of Appeals for the Seventh Circuit, “the hotel should increase its expenditures on security until the last dollar buys a dollar in reduced expected crime costs ․ to the hotel’s guests.” Shadday v. Omni Hotels Mgmt. Corp., 477 F.3d 511, 514 (7th Cir.2007).
At least one court has criticized the balancing test as bleeding the line between duty and breach. See Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973 (Ind.1999) (adopting the totality of the circumstances instead of the balancing test because the reasonableness of a business owner’s precautions “is basically a breach of duty evaluation and is best left for the jury to decide.”). We note this concern, but believe the heavy burden imposed on businesses by the totality of the circumstances approach requires narrowing, and duty can be a flexible concept. As the foreseeability of potential harm increases, so, too, does the duty to prevent against it. Indeed, our courts have consistently imposed a duty on business owners to employ reasonable measures to protect invitees from foreseeable harm. See Allen v. Greenville Hotel Partners, Inc., 405 F.Supp.2d 653, 659 (D.S.C.2005) (business owner has a “duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm”). In adopting a balancing approach, we do not alter this duty, but merely elucidate how to determine (1) if a crime is foreseeable, and (2) given the foreseeability, determine the economically feasible security measures required to prevent such harm. The optimal point at which a dollar spent equals a dollar’s worth of prevention will not always be apparent, but may be roughly ascertained with the aid of an expert, or some other testimony. Shadday, 477 F.3d at 514. As opposed to the imminent harm, prior incidents, or totality of circumstances tests, we believe the balancing approach appropriately weighs both the economic concerns of businesses, and the safety concerns of their patrons. In replacing our imminent harm test with a balancing test, we hope to “encourage[ ] a reasonable response to the crime phenomenon without making unreasonable demands.” McClung, 937 S.W.2d at 902.
We turn now to the facts of the instant case. The circuit judge found Defendants owed no duty of care to protect Petitioner from the criminal act of a third party because Petitioner did not demonstrate Defendants knew or had any reason to know an assault against Petitioner would occur. The circuit court determined this based on Petitioner’s failure to provide the court with specific instances of criminal activity on the premises prior to the September 28, 1999 incident.
Petitioner was unable to supply a report of criminal incidents at the Super 8 prior to the attack on Petitioner.2However, Petitioner produced a CRIMECAST report3 that showed, in 1999, the risk of crimes against persons at the Super 8 was 3.5 times the national average risk, nearly twice the state average risk, but slightly less than the county risk. The risk of rape and robbery at the Super 8 was above the county average, according to the report. Petitioner also submitted a report indicating the robbery rate in Orangeburg County in 1999 exceeded the state benchmark by approximately 190 percent. Specifically, from January 1, 1999, through September 30, 1999, 160 aggravated assaults and 60 robberies occurred county-wide.
We do not believe evidence of an elevated crime rate covering the expanse of an entire county, on its own, is sufficient to prove foreseeability by a preponderance of the evidence. Such a finding would diminish a business’s economic incentive to expand into higher crime counties, which arguably are in the greatest need of commercial stimulus. However, we are not prepared to say crime forecasting tools, such as the CRIMECAST report, bear no probative value. The weight given to CRIMECAST reports in determining foreseeability varies nationally. Compare Shadday v. Omni Hotel Mgmt. Corp., 2006 WL 693680 (S.D.Ind.2006) (finding a CRIMECAST report showing the risk of rape as 3.5 times higher than the national average did not prove foreseeability sufficient to survive summary judgment), and Ali v. Dao, 2009 WL 2567995 (N.J.Super.A.D.2009) (finding high CAP index was not sufficient evidence to prove foreseeability), with Whitt v. Wal–Mart Stores East, L.P., 2010 WL 1416756 (E.D.Ky.2010) (a low CAP index for violent crimes indicated a low risk of a violent crime in Wal–Mart parking), and Currie v. Chevron USA, Inc., 2006 WL 5249707 (N.D.Ga.2006) (CRIMECAST report was sufficient to establish lack of foreseeability). In citing these cases, we note federal courts require more from a non-moving party to survive summary judgment than do our state courts. In this case, the especial high probability of crime at the Super 8 compared to the national and state averages raised at least a scintilla of evidence that the crime against Petitioner was foreseeable. We recognize that, according to the report, the risk of an aggravated assault occurring at the Super 8 was slightly lower than the county-wide risk. However, the risk of robbery and rape at the Super 8 was above the county average, and the security measures required to curb robbery, rape, and aggravated assault are arguably similar. Based on the foregoing, we believe Petitioner produced at least some evidence the aggravated assault was foreseeable.
In so finding, this Court must determine whether Petitioner provided any evidence Respondent’s preventative actions were unreasonable given this risk. Petitioner asserts Respondent should have either hired a security guard to patrol the premises or installed a roving camera security system. In our view, the hiring of security personnel is no small burden. Considering a business’s economic interest, it is difficult to imagine an instance where a business would be required to employ costly security guards in the absence of evidence of prior crimes on the premises. However, a business, such as this one, in a high crime area without evidence of prior criminal incidents may be required to institute less costly measures to offset an elevated risk of harm, such as installing extra lighting, fences, locks, or security cameras, or simply training existing personnel on best security practices.
As part of the balancing approach we adopt, a determination of whether a business proprietor’s security measures were reasonable in light of a risk will, at many times, be identified by an expert. Petitioner’s expert visited the Super 8 on three occasions, both during the day and night time, to observe the neighborhood and physical layout of the motel. He determined Respondent provided adequate lighting at its facility and the physical hardware on the door was within industry standards. However, the expert concluded the addition of a closed circuit camera or some type of additional security personnel would have been reasonable in light of his perceived risk. The expert based his risk perception at the site primarily upon criminal incident data he gathered from 2000 to 2004, after the assault on Petitioner took place. Determinative of this case, in our opinion, is the expert’s testimony that “if ․ this is [the] first time [a criminal incident occurred], there wasn’t enough data for [Respondent] to say he really needed to spend a bunch of money on surveillance cameras, a bunch of money on a full-time security guard or part-time, or train his employees to do a guard tour․” This expert’s testimony was the only evidence supplied by Petitioner that spoke to the reasonableness of Respondent’s precautions.4 Even casting all evidence in a light most favorable to the Petitioner, he failed to provide any evidence that Respondent should have expended more resources to curtail the risk of criminal activity that might have been probable. Therefore, we find the court of appeals’ decision upholding the circuit court’s grant of summary judgment was proper.
Conclusion
Today, we adopt the balancing approach to determining foreseeability in the context of whether a business owner has a duty to protect its invitees from criminal acts of third parties. We believe this test appropriately strikes a balance between the economic concerns of businesses and the safety concerns of the public. Even with all reasonable inferences from the evidence cast in favor of Petitioner, we find Petitioner did not provide the circuit court any evidence that Respondent’s security measures were unreasonable given the risk of criminal activity on the property. Therefore, the circuit court’s grant of summary judgment is
AFFIRMED.
I concur in the majority’s decision to affirm the Court of Appeals’ decision upholding the circuit court’s grant of summary judgment, but would do so on the ground that petitioner’s negligence in leaving the safety of his motel room exceeded respondent’s negligence, if any, as a matter of law. See Bass v. GO PAL, Inc., 384 S.C. 238, 247, 680 S.E.2d 917, 921–922 (Ct.App.2009).
The Court of Appeals held that, under existing South Carolina law, an innkeeper owes a duty to her guests “to provide ․ reasonable protection against injuries from criminal acts, and the actual amount of protection depends on the amount and types of criminal activity that have previously occurred on the premises.” Bass, at 245, 680 S.E.2d at 245, fn. 4. The court distinguished this specialized innkeeper duty from that of a merchant, whose duty to protect customers from third party criminal acts is limited to those which the merchant has actual or constructive knowledge are, or are about to, occur. Id. [citing Miletic v. Wal–Mart Stores, Inc., 339 S.C. 327, 529 S.E.2d 68 (Ct.App.2000) ].
While I appreciate the majority’s scholarly approach to the issues of duty and foreseeability, I perceive little difference between our existing law, and the test adopted by the majority, other than a requirement for expert testimony, and reliance upon city/county statistics. Like the Court of Appeals, I would hold that since there is no duty imposed upon business owners to conduct a crime analysis, there is no reason to impute knowledge of the CRIMECAST report to respondent, and further that these types of city/county statistical reports are irrelevant to determining an innkeeper’s duty. I would not alter our existing law, but were I to do so, I would remand to permit the parties an opportunity to meet the newly announced test.
Because I would hold that the Court of Appeals correctly affirmed the grant of summary judgment on the comparative negligence ground, I concur in the result reached by the majority.
FOOTNOTES
1. The appeal against Super 8 has been dismissed. In describing the procedural history preceding this appeal, we refer to Super 8 and Gopal collectively as Defendants.
2. The Orangeburg County Department of Public Safety only has records dating back to 2000 because of a software change in 2000 that deleted records prior to that time. Instead, Petitioner’s expert supplied the circuit court with a crime incident report at the Super 8 showing three robberies, two aggravated assaults, and four simple assaults occurred on the property from 2000 to 2004.
3. “The CRIMECAST model produces probability measures that place any location in the United States in context with national, state and county levels of criminality.” The crimes against persons (CAP) index represents the overall risk of homicide, rape, robbery, and aggravated assault.
4. The affidavit of another expert supplied by Petitioner merely agreed with the first expert’s assessment as it related to the precautionary measures required of Respondent.
Justice PLEICONES:
BEATTY, KITTREDGE and HEARN, JJ., concur.PLEICONES, J., concurring in a separate opinion.
Jan 16, 2012 | Brain Injury/Head Trauma, Car Accidents, Nursing Home Abuse, Personal Injury, Uncategorized, Wrongful Death
SC Wrongful Death Statute: Here is the actual law, as enacted. Don’t worry. Keep reading. We’ll explain what it means at the end.
DEATH BY WRONGFUL ACT
SECTION 15-51-10. Civil action for wrongful act causing death.
Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony. In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.
SECTION 15-51-20. Beneficiaries of action for wrongful death; by whom brought.
Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused. Every such action shall be brought by or in the name of the executor or administrator of such person.
SECTION 15-51-30. Effect of illegitimacy.
In the event of the death of an illegitimate child or the mother of an illegitimate child by the wrongful or negligent act of another, such illegitimate child or the mother or father or the heirs at law or the distributees of such illegitimate child shall have the same rights and remedies in regard to such wrongful or negligent act as though such illegitimate child had been born in lawful wedlock.
SECTION 15-51-40. Damages; amount and to whom payable.
In every such action the jury may give damages, including exemplary damages when the wrongful act, neglect, or default was the result of recklessness, wilfulness, or malice, as they may think proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit such action shall be brought. The amount so recovered shall be divided among the before-mentioned parties in those shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his or her estate. However, upon motion by either parent or any other party of potential interest based upon the decedent having died intestate, the probate court may deny or limit either or both parent’s entitlement for a share of the proceeds if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority.
SECTION 15-51-41. Court approval required for settlement of wrongful death or survival action.
Any settlement of a wrongful death or survival action must be approved by either a probate court, circuit court, or United States District Court, as provided in Section 15-51-42.
SECTION 15-51-42. Approval of settlements of wrongful death or survival actions.
(A) Only a duly appointed personal representative, as defined in Section 62-1-201(30), shall have the authority to settle wrongful death or survival actions.
(B) If no action is pending, the personal representative shall petition either the probate or the circuit court of this State seeking approval of a proposed settlement. The petition must be verified by the personal representative and shall set forth, in terms satisfactory to the court in which the petition is filed, the basic facts surrounding the death of the decedent, the pertinent facts surrounding the liability of the alleged wrongdoer, the amount of insurance available to pay for damages, the terms of the proposed settlement, the statutory beneficiaries of the wrongful death or survival action, the heirs at law or appropriate devisees of the estate, the appropriate creditors, the amount of their claims, and, if the personal representative has retained legal counsel, the terms and provisions of the agreement with respect to attorney’s fees and costs.
It is not necessary that a personal representative be represented by legal counsel for the court to consider the petition and approve the settlement. If the personal representative is represented by legal counsel, the counsel shall sign a certificate attesting to the fact that he is of the opinion that the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent.
The court shall schedule a hearing and receive into evidence those facts that the court considers necessary and proper to evaluate the settlement. After conducting this inquiry, the court shall issue its order either approving or disapproving the proposed settlement. If the settlement is approved by the court, the personal representative has the power to conclude the settlement, including the execution of those documents as the settlement terms contemplate.
(C) If a wrongful death or survival action has been filed in state court and:
(1) the settlement agreement between the parties is reached before the matters reach trial, the personal representative shall petition the court in which the wrongful death or survival action has been filed and follow the procedure for settlement as provided in (B) above;
(2) the settlement agreement is reached during the trial, or after trial but before notice of appeal is filed, of either the wrongful death or survival action, then no petition is necessary, and the court shall conduct a hearing, at which the parties may present to the court the pertinent facts and information, including that information required in subsection (B) above, which the court may require in order to consider whether to approve or disapprove the settlement. If the court finds the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent, then the court shall issue its order approving the settlement;
(3) the settlement agreement is reached after notice of appeal is filed, the personal representative shall petition the appellate court before which the matter is pending to remand the case to the circuit court for consideration of the settlement agreement in accordance with the procedure outlined in (2) above.
(D) For any actions pending in the federal courts, the same procedure may be followed, but the federal court, at its discretion, may issue an order transferring the case to state court for consideration of the proposed settlement.
(E) Once a settlement agreement has been approved by an appropriate court, the person paying the settlement proceeds and all those on whose behalf the payment is made and any other persons who could be responsible because of the actions on whose behalf the settlement proceeds are being paid, are relieved and discharged from further liability and shall have no obligation or legal duty to see to the appropriate or proper distribution of the settlement proceeds among either the wrongful-death beneficiaries or those entitled to the proceeds of the settlement of the survival action. Once payment has been made to the personal representative, the obligations of the person making the payment and those on whose behalf the payment is being made, and all those who could be responsible for the actions of these persons, are fully and completely released and finally and forever discharged from any further responsibility in connection with the action or actions.
(F) Any person bringing a wrongful death or survival action in a court other than the probate court must notify the probate court of this action within ten days after the filing of the action. The provisions of this subsection apply to wrongful death or survival actions filed after the effective date of this section.
(G) When the administration of an estate is final except for the administration of survival action proceeds because of the pendency of a survival action brought on behalf of the estate, the probate court may issue, upon petition by the personal representative, a special order providing that no accountings are required until the survival action is settled or verdict rendered in a trial. The attorney for the personal representative must notify the probate court immediately upon completion of the survival action and furnish the court with a copy of the order approving settlement or a copy of the judgment, whichever is appropriate.
SECTION 15-51-50. Liability for costs.
The executor or administrator, plaintiff in the action, shall be liable to costs in case there be a verdict for the defendant or nonsuit or discontinuance, out of the goods, chattels and lands of the testator or intestate, if any.
SECTION 15-51-60. Effect of action prior to death.
The provisions of this article shall not apply to any case in which the person injured has, for such injury, brought action, which has proceeded to trial and final judgment before his or her death.
*****
So what does this complex statute really mean? It means you had better retain an experienced wrongful death trial attorney that knows what they are doing. Every lawyer advertises for these cases, but few actually understand this area of the law. One website actually boasts that they advise recovery based on tax consequences and who gets the money. There are actually two (2) potential causes of action, and you always pursue both. The first is a “survival” action which is brought on behalf of the decedent. If you can prove that they lived for only an instant, their estate would be entitled to compensation for pain and suffering, medical bills, and funeral expenses. Those funds would be distributed according to a will or intestacy laws. The second cause of action is for “wrongful death” and is for such damages as loss of support, services, and companionship. Those benefits would go to the family directly.
The personal injury trial attorneys at Reeves, Aiken & Hightower, LLP, are seasoned litigators with over 70 years combined experience. We welcome the opportunity to sit down and discuss your particular case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
Jan 15, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
Symptoms of Brain Injury
Any brain function can be disrupted by brain trauma: excessive sleepiness, inattention, difficulty concentrating, impaired memory, faulty judgment, depression, irritability, emotional outbursts, disturbed sleep, diminished libido, difficulty switching between two tasks, and slowed thinking. Sorting out bonafide brain damage from the effects of migraine headaches, pain elsewhere in the body, medications, depression, preoccupation with financial loss, job status, loss of status in the community, loss of status in the family, and any ongoing litigation can be a formibable task.
The extent and the severity of cognitive neurologic dysfunction can be measured with the aid of neuropsychological testing. Neuropsychologists use their tests to localize dysfunction to specific areas of the brain. For example, the frontal lobes play an essential role in drive, mood, personality, judgment, interpersonal behavior, attention, foresight, and inhibition of inappropriate behavior. The ability to plan properly and execute those plans is known as “executive function.” Frontal lobe injury is often associated with damage to the olfactory bulbs beneath the frontal lobes. Patients may note reduced or altered sense of smell. One recent study (Varney 1993) showed that 92% of brain injured patient suffering anosmia (loss of smell) had ongoing problems with employment, even though their neuropsychological testing was relatively normal.
The effects of brain injury on the patient may be equaled or even surpassed by the effect on the patient’s family. Brain injuries are known for causing extreme stressors in family and interpersonal relationships.
In general, symptoms of traumatic brain injury should lessen over time as the brain heals but sometimes the symptoms worsen because of the patient’s inability to adapt to the brain injury. For this and other reasons, it is not uncommon for psychological problems to arise and worsen after brain injury.
SYMPTOM CHECKLIST
A wide variety of symptoms can occur after “brain injury.” The nature of the symptoms depends, in large part, on where the brain has been injured. Below find a list of possible physical and cognitive symptoms which can arise from damage to specific areas of the brain:
Frontal Lobe: Forehead
Loss of simple movement of various body parts (Paralysis).
Inability to plan a sequence of complex movements needed to complete multi-stepped tasks, such as making coffee (Sequencing).
Loss of spontaneity in interacting with others.
Loss of flexibility in thinking.
Persistence of a single thought (Perseveration).
Inability to focus on task (Attending).
Mood changes (Emotionally Labile).
Changes in social behavior.
Changes in personality.
Difficulty with problem solving.
Inability to express language (Broca’s Aphasia).
Parietal Lobe: near the back and top of the head
Inability to attend to more than one object at a time.
Inability to name an object (Anomia).
Inability to locate the words for writing (Agraphia).
Problems with reading (Alexia).
Difficulty with drawing objects.
Difficulty in distinguishing left from right.
Difficulty with doing mathematics (Dyscalculia).
Lack of awareness of certain body parts and/or surrounding space (Apraxia) that leads to difficulties in self-care.
Inability to focus visual attention.
Difficulties with eye and hand coordination.
Occipital Lobes: most posterior, at the back of the head
Defects in vision (Visual Field Cuts).
Difficulty with locating objects in environment.
Difficulty with identifying colors (Color Agnosia).
Production of hallucinations.
Visual illusions – inaccurately seeing objects.
Word blindness – inability to recognize words.
Difficulty in recognizing drawn objects.
Inability to recognize the movement of object (Movement Agnosia).
Difficulties with reading and writing.
Temporal Lobes: side of head above ears
Difficulty in recognizing faces (Prosopagnosia).
Difficulty in understanding spoken words (Wernicke’s Aphasia).
Disturbance with selective attention to what we see and hear.
Difficulty with identification of, and verbalization about objects.
Short term memory loss.
Interference with long term memory.
Increased and decreased interest in sexual behavior.
Inability to catagorize objects (Categorization).
Right lobe damage can cause persistent talking.
Increased aggressive behavior.
Brain Stem: deep within the brain
Decreased vital capacity in breathing, important for speech.
Swallowing food and water (Dysphagia).
Difficulty with organization/perception of the environment.
Problems with balance and movement.
Dizziness and nausea (Vertigo).
Sleeping difficulties (Insomnia, sleep apnea).
Cerebellum: base of the skull
Loss of ability to coordinate fine movements.
Loss of ability to walk.
Inability to reach out and grab objects.
Tremors.
Dizziness (Vertigo).
Slurred Speech (Scanning Speech).
Inability to make rapid movements.
This is one of the most effective presentations of latent brain injury I have found. It is located at the website “BrainInjury.com” As a former ICU Registered Nurse (RN), I was impressed with the graphics and list of symptoms depending on which part of the brain was injured. The trial attorneys at Reeves, Aiken & Hightower, LLP, are experienced serious injury lawyers and are uniquely familiar with brain injury cases. Closed head or traumatic brain injury (TBI) sadly occurs more often than earlier realized and can result from even relatively minor trauma during automobile accidents, large truck accidents, motorcycle accidents (even with a helmet), and work-related accidents (workers’ compensation). We welcome the opportunity to sit down and personally discuss your particular case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
