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.
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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
Jan 13, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
The following article is another tragic example of the tremendous killing potential of large commercial trucks when they impact with regular vehicles on our South Carolina highways. In this case, a group of teenagers was involved. One did not come home. And her parents received the phone call all of us fear when our children are young.
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 understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
PELZER, SC – A 14 year old teenager was killed in a fatal tanker truck accident in Pelzer, SC on Friday, November 4, 2011.
Tanker trailer with over 8,000 gallons of gas laying upside down after a fatal accident where a local teenager was killed in Pelzer, SC on November 4, 2011.
Jaela Kelley, 14 years old, from Williamston, SC was killed when the passenger car she was in collided with a semi tanker truck filled with over 8,000 gallons of gas. The accident occurred shortly after 9:30 p.m. in Pelzer on Highway 29 at Ballard Road. A 2003 two-door Honda with 3 teenage occupants was traveling eastbound on Ballard Rd. and was stopped at a stop sign. The Honda pulled out in front of the semi tanker that was traveling northbound on Highway 29 when the crash occurred.
Map showing location of fatal tanker truck accident in Pelzer, SC on November 4, 2011 on Highway 29 at Ballard Rd. The force of the collision spun the car around and Kelley, who was not wearing a seat belt, was ejected from the vehicle and was fatally injured.
The IndependentMail.com website reports:
Jaela Kelley, 17, of Williamston, died Friday night at Greenville Memorial Hospital as the result of multiple trauma that she suffered in a two-vehicle wreck shortly after 9:30 p.m., said Anderson County Chief Deputy Coroner Charlie Boseman. Kelley was taken by helicopter to the hospital after the accident that happened at U.S. 29 and Ballard Road in Pelzer.
After the collision, the Honda went down an embankment and the tanker trailer separated from the semi cab and flipped over on its back. The cab landed in a wooded area. Christopher Jennings, 51 years old from Pauline, SC was the truck driver. He was reportedly not injured in the accident. The 1996 Kenworth tanker truck began leaking gas afterwards so a Hazmat team was called in and spent several hours cleaning up the spill. There was no evacuation ordered as a result of the spill.
The two other teens in the Honda were Cody Bradley Hendrey, 18 years old, from Williamston, and Haley Brett Ragsdale, 17 years old, from Pelzer. They were both transported to nearby hospitals. Ragsdale was treated and released, but there are no details on Hendrey’s condition.
Due to the ongoing investigation, officials do not know who was driving the Honda. What is known is that none of the occupants in the Honda were wearing seat belts at the time of the accident. They were attending a bonfire before the accident happened.
Jaela Kelley was a student at Palmetto High School. The school district was deeply saddened at the news of her death.
The attorneys at Reeves, Aiken & Hightower, LLP encourage all drivers, both young and old, to drive defensively on the road. Anticipate bad situations and always have an escape plan. Be Safe. Get Home.
Dec 25, 2011 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
The recently released statistic is very disturbing. An 8.7% increase in commercial trucking crashes, according to a report released by the National Highway Transportation Safety Administration (NITSA). Sadly, it is now documented that large truck accidents are becoming more frequent. When they do happen, they almost always result in serious injury, brain injury, and/or wrongful death.
NHTSA said in its annual report that 3,675 people died in trucking related accidents in 2010, an increase of 295 over the 3,380 fatalities in 2009. The number injured in trucking accidents increased 12% from 17,000 to 19,000. (Those number are surely rounded off.) NHTSA did not clearly identify a cause, but increased truck traffic due to gradual economic recovery is likely a major factor.
Originally Posted On: December 20, 2011 by Ken Shigley, President of Georgia Bar
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 understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
