Mar 28, 2013 | Motorcycle Accidents, Personal Injury, Uncategorized
A resident from Rock Hill was involved in a serious motorcycle accident this past Friday night that resulted in a fatality for the man.
According to the police reports, the man was driving his motorcycle southbound down Interstate 77 near Dave Lyle Boulevard in Rock Hill around 10:00 p.m. The man was report
ed to of not of been wearing a helment during the crash. The details are still a bit hazy as the investigation carries on; but the police do know that the man fell from his motorcycle, injuring himself.
Luckily, no other victims were harmed by this crash, and the resident was travelling alone at the time.
Rock Hill’s Captain of the Highway Patrol stated that the man had to be airlifted to Carolinas Medical Center in Charlotte. The Coroner further added that the man was not pronounced dead upon arrival, but rather he lingered on until Tuesday evening, when he passed away.
The exact cause of the accident has still not been released. It is not apparent whether or not the man was intoxicated; whether or not he fell from his motorcycle in an attempt to avoid hitting something else; or whether or not there were any other parties involved who have not yet come forward.
In any event, travelling on a motorcycle can be a very dangerous means of transportation. The fact of the matter is the more metal you have around you to protect you in the event of an accident, the better it is. This is not to say that motorcycles should not be driven; however extra safety precautions should be exercised in doing so. In the case at hand, had the resident been wearing his helmet at the time, the motorcycle crash may not have ended in a fatality. Always follow the laws when driving motorcycle, and even more importantly, always wear your helmet and NEVER drink and drive.
However, no matter how safe you are, sometimes injury can not be prevented. If you, or someone you know has been involved in a motorcycle accident, contact the law offices of Reeves, Aiken,and Hightower, LLP. Let one of our experienced motorcycle attorneys consult with you and get you the compensation you deserve.We can be reached at 803-548-4444 for South Carolina accidents, and at 704-499-9000 for North Carolina Accidents.
Mar 28, 2013 | Uncategorized, Wrongful Death
A fatal collision has occurred in Hartsville, South Carolina where two car collided around 8:00 p.m. on North Center Road. The Toyota contained three occupants when it was struck head-on by a Chevy traveling south.
The driver was not wearing his seat-belt, and was pronounced dead on the scene. The front passenger was also not wearing a seat-belt and was transported to a local hospital. Next, the left rear passenger was pronounced dead on the scene. Finally, the other driver was not wearing a seat-belt, and was pronounced dead on the scene.
When a terrible accident such as this takes place, questions come to mind as to who is at fault for the events that took place. While investigators determine what the cause of the accident is, it is important for the victims and victims families to determine how they can be recompensed for the loss they have incurred. No monetary judgment can mend the losses of someone who has lost a loved one. The South Carolina wrongful death statute reads as follows:
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.
Therefore, if you or a loved one has been affected by an accident that may be remedied by the Wrongful Death Statute statute, call the law offices of Reeves, Aiken & Hightower at our Baxter Village office located in Fort Mill, South Carolina. For a consultation call us at 803-548-4444, or toll-free at 877-374-5999.
Mar 28, 2013 | DUI & DWI, Felony DUI, Uncategorized
A 33-year-old Lancaster man is facing felony charges after allegedly slamming his SUV into a motorcycle while under the influence of drugs. 
The man who was driving the motorcycle was taken to the hospital after suffering four leg fractures, two broken ribs and a collapsed lung. The driver faces up to 15 years in prison and over $25,000 in fines for DUI resulting in great bodily injury.
A DUI itself can change the life of one who has been involved in such a charge. However, when you add a traffic accident and great bodily injury, or death, the life of everyone involved can turn around in a split second.
If you or someone close to you has been charged with a DUI or Felony DUI, call the law offices of Reeves, Aiken & Hightower, LLP. For a consultation, call our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.
Mar 28, 2013 | DUI & DWI, Uncategorized
The North Carolina crime laboratory and other local laboratories perform about 10,000 blood toxicology analyses annually. The majority of these tests involve impaired driving cases; and, unlike breath analysis results, many months may pass after one has been arrested for DWI before the state receives a toxicology report analyzing the defendant’s blood.
The reasons for such delays are as follows: (1) That it takes more time for the sample to reach the lab; (2) the testing process itself is more time-consuming than that of a breath-test sample, and; (3) since analysts have to testify about their analyses, they spend less time in the actual lab; (4) finally, there is a higher demand for analysts than there are actual people to fill the position.
Therefore, as the turnaround time for toxicology reports increase, many defense attorneys and defendants have had questions as to how such delays affect a defendant’s right to a speedy trial. Therefore we shall assess the factors a court considers when analyzing a defendant’s motion to dismiss. These factors are as follows:
a. Length of the delay;
b. Reason for the delay;
c. Defendant’s assertion of his or her right to a speedy trial; and
d. Prejudice to the defendant.
These were determined in the court case, Barker v. Wingo, 407 U.S. 514, 530 (1972). This case proposed that when the length of the delay reaches a threshold that is presumptively prejudicial, the court must inquire into the other factors. So, delays that are in excess of one year are considered to trigger this threshold. As stated in Doggett v. United States, 505 U.S. 647, 671 (1992), “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” The fact that a misdemeanor DWI charge is taking up to a year for lab toxicology allows one to take into account the remaining three factors. This is due to the fact that one year is entirely too long.
Further, a deliberate attempt by the State to delay trial in order to hamper the defense weighs heavily against the government as do more neutral reasons such as “negligence or overcrowded courts,” although they weigh less heavily. But, this rests more on the government than on the defendant. The government must, therefore, come up with a valid reason for the delay. This takes place after the defendant has met his burden in establishing that there has been a delay.
The central question in such a circumstance is whether a defendant’s right to speedy trial has been violated by the delay in obtaining toxicology results. In State v. Sheppard, the court found that the defendant’s right to a speedy trial was violated by a fourteen month delay. However, the state in Sheppard weighed a seven month delay before the State received toxicology results “more neutrally,” given that the state “should be given a reasonable amount of time to prepare its case.” But, the seven month delay after the lab report was filed did weigh against the state.
Therefore, the state has a duty to ensure that discovery materials, such as DNA evidence, are properly monitored and accounted for and not simply sitting in state crime labs. So, it seems unlikely in the state of North Carolina, for a defendant to establish a speedy trial violation in a misdemeanor impaired driving case based solely on nearly year-long delays in toxicology reports. As the delays increase, such is weighed more heavily against the state.
The major issue here is that length of time a defendant must wait for toxicology reports may prejudice the defendant if the length of time is greater than one year. Courts seem to be more in the favor of the state; but, when the length of time extends past one year, there is likely an argument. If you or a loved one has been charged with DWI, and have been awaiting the results for an extended period of time, approaching one year, call the law offices of Reeves, Aiken & Hightower, LLP. We have dealt with many DWI cases in the state of North Carolina, and understand how frustrating such a criminal charge can be. For a consultation, call our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.
Mar 27, 2013 | DUI & DWI, Felony DUI, Uncategorized
A Laurens, South Carolina man is being charged with DUI after a crash that landed seven people in the hospital. The 40-year-old man has been charged with two counts of Felony DUI with great bodily injury, according to the 7th Circuit Solicitor.
The Solicitor said the crash occurred on Highway 221 while the man was driving his 1998 Ford truck, while attempting to pass a Geo at a speed of 70 m.p.h. which was 25 miles over the speed limit. The impact caused the Geo to hit a mailbox, smashed through a tree, finally stopping at a fence. The driver sustained a head injury, while her brother, as passenger sustained a broken shoulder, ribs, and vertebrae.
All in all, the crash injured all 7 people who were involved in the accident. Even the driver was rushed to the hospital. Further, when the S.C. Highway Patrol investigated the crash, the troopers said that the driver of the Ford truck was allegedly under the influence of Valium, OxyContin, and Marijuana.
In South Carolina, a driver can be charged with Felony DUI in South Carolina if, while under the influence of alcohol and/or drugs, that person causes great bodily injury or death to another person while operating a motor vehicle. This is a serious charge, and if convicted, will land the driver in jail. This is why it is so important to have knowledgeable attorneys to ensure your rights are protected and penalties are minimized.
If you or someone you know is convicted of a Felony DUI resulting in great bodily injury, the punishment may include the following:
- A mandatory fine of not less than $5,100, nor more than $10,100;
- Mandatory imprisonment for not less than 30 days nor more than 15 years;
- Driver’s license suspension during the term of imprisonment plus 3 years.
However, if you are convicted of Felony DUI that results in a death, the punishment includes the following:
- A mandatory fine of not less than $10,100, nor more than $25,100;
- Mandatory imprisonment for not less than 1 year nor more than 25 years;
- Driver’s license suspension during the term of imprisonment plus 3 years.
The law further states that no part of these mandatory sentences may be suspended. This is why it is so important for you to have competent counsel on your side. Therefore, if you or a loved one has been charged with a DUI, Felony DUI, or drinking related charge, call the law offices of Reeves, Aiken & Hightower, LLP at our Baxter Village office located in Fort Mill, South Carolina for a consultation. You can reach us at 803-548-4444, or toll-free at 877-374-5999.
Mar 25, 2013 | Negligent Infliction of Emotional Distress, Uncategorized
Hypothetical: On May 21, 2011, Julius Orange and his mother were driving home in separate cars on Interstate-77 in York County, South Carolina. Julius was following his vehicle several car lengths behind his mother’s car. As Julius’s mother approached the intersection, a dump truck, owned and operated by Acme Landscaping Company and driven by Dog Bounty, ran a stop sign and slammed into Julius’s mother’s car. The car rolled several times before coming to a stop on the shoulder of the road. J’s mother was thrown from the vehicle onto the road and was killed. Julius witnessed the collision and was the first person to come to his mother’s assistance. Dog Bounty did not know that Julius was the decedent’s son or that she was following her mother that day.
Dog Bounty was convicted of misdemeanor death by motor vehicle and a stop sign violation, and after the accident, Julius began to suffer severe psychological problems and consulted a clinical psychologist. He was diagnosed with a disabling mental disorder as a result of the accident. Julius also lost his job as a result of the accident.
Julius has timely filed a lawsuit against Dog Bounty in York County, South Carolina, setting forth the foregoing facts and alleging negligent infliction of emotional distress (NIED) and mental anguish seeking compensatory damages, which he alleged were reasonably foreseeable.
Dog has filed a motion to dismiss for failure to state a claim upon which relief can be granted. How should the court rule on Dog’s motion to dismiss Julius Orange’s complaint?
The court should deny the motion to dismiss the claim for negligent infliction of emotional distress. The issue is whether the driver of a vehicle can be held liable for negligent infliction of emotional distress when he was not aware of the presence of the third party.
To recover for NIED, the plaintiff must establish three elements: (1) the defendant negligently engaged in conduct; (2) it was foreseeable that the conduct would cause the plaintiff emotional distress; and (3) the conduct did cause severe emotional distress. There are several factors to consider when determining whether the emotional distress to the plaintiff is foreseeable, including the plaintiff’s proximity to the negligent act, the relationship between the plaintiff and the injured party, and whether the plaintiff personally observed the negligent act. While knowledge of the third party’s presence is essential in intentional infliction of emotional distress (IIED) claim, this is not an element of NIED claim.
Here, Dog was negligent by driving through a stop sign without stopping and hitting and killing Julius’s mother, as evidenced by his conviction. Considering each of the foreseeability factors separately, it is likely that Julius’s distress could be found foreseeable by a jury. First, Julius was only a few car lengths away from the accident when it occurred, and he had a full view of the accident, so he was in close proximity to the accident. Second, he is the son of the injured party, so there is a close family relationship. Finally, he personally witnessed the negligent act and was the first person to come to his mother’s assistance. Julius satisfies all three factors, making it highly likely that it was foreseeable that the conduct would cause him emotional distress. The conduct did in fact cause him emotional distress in that he developed severe psychological problems being diagnosed with a disabling physical condition as a result. Also, the condition caused him to lose his job. Therefore, because all three of these elements for establishing NIED are supported by the facts, the court should not grant the motion to dismiss Julie’s complaint.
The following hypothetical properly distinguish how a South Carolina court would likely look at a negligent infliction of emotional distress claim. The tricky inner workings of such a legal problem illustrate the methodology the law offices of Reeves, Aiken & Hightower, LLP uses to argue such a problem in front of a South Carolina court. If you or a loved one has been injured or even killed in an accident, it is important that you know every potential claim you could have before for you. In order to do so, you must ensure that you are properly represented. For a consultation, contact The Law Offices of Robert J. Reeves P.C at (704) 351- 7979. We are located in Baxter Village in beautiful Fort Mill, South Carolina.
