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.
Mar 24, 2013 | Criminal Defense, Uncategorized
Hypothetical: Crazy Larry lives in Bates Residence Hall at the University of South Carolina in Lancaster. He is 19 years old and has lived in that single room for two years. On one particular night, the residence hall adviser, Norman, is walking by Larry’s room and catches a whiff of a strong odor that he believes to be marijuana. Pursuant to university regulations, Norman knocked on the door and then used his master key to enter Crazy Larry’s room. Upon entering the room, Norman left the door wide open and observed Johnny smoking away at a marijuana cigarette.
Campus Policeman Wiggum happened to be walking down the hall to respond to a noise complaint a few seconds after Norman opened Larry’s door. As he passed the dorm room, he is hit with a whiff of marijuana while also observing smoke pouring out of the room. He enters the room, and observes Larry with the “joint” in his hand. Norman tells the officer that he was getting ready to call the police at that moment.
While taking Larry into custody, Officer Wiggum notices a laptop computer, which is closed, sitting on Larry’s desk. The officer can see that the laptop has a label on it that says “property of Ashton Acres.” Officer Wiggum remembers reading a report at the police station the day before in which Ashton Acres had reported her laptop as being stolen. Officer Wiggum then seizes the laptop as well as the joint and arrests Larry.
- Was the original entry by Norman, the resident adviser, lawful?
Yes, the entry by Norman was most likely lawful. The issue is whether a university residence advisor can enter into a dormitory room without a warrant.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and seizures by government agents. This usually means that searches by government agents must be pursuant to a warrant based on probable cause to believe that seizable evidence can be found at the place searched. Before reaching the meat of the Fourth Amendment claim, we must first decide whether there was a search by a government agent.
A search will be found only when a government agent intrudes into an area in which the complainant has a reasonable expectation of privacy. The US Supreme Court has held that the owner of a home has a protectable privacy interest, and so does an overnight guest in a home. Surely a student living in a dorm room would have no less expectation of privacy. Thus Larry will probably be found to have a protectable privacy interest in a dorm room.
A court would also likely find that Norman, the RA, is a government agent because he works for a public university, which is part of the government. Further, his goal here was to investigate the smell coming from Crazy Larry’s room that he thought was marijuana. While smoking marijuana might violate school rules, it is also a criminal offense. Thus, Norman was a government agent investigating possible criminal conduct. As such, he probably needed a warrant to enter the room.
Norman had no warrant, and no exception to the warrant requirement would seem to apply here. Perhaps the closest is the exception for the exercise of the police community caretaker function which allows police to enter onto premises without a warrant when they believe that someone is in physical danger. However, there was no reason for Norman to believe that Larry was in physical danger merely because he smelled marijuana.
The only other possible exception is consent. A warrant is not needed when there is valid consent. Consent must be knowing, intelligent, and voluntary. Whether consent is voluntary when it is a condition to getting a dorm room is questionable. In any case, we do not have facts to support this argument. Therefore, absent more facts, we must assume that the warrantless entry was a violation of Larry’s Fourth Amendment Rights.
- Was the seizure of the marijuana cigarette by Officer Wiggum lawful?
No, the seizure by the officer was unlawful.
As discussed above, generally, a warrant is required to enter a private room unless an exception to the warrant requirement applies. The state will probably argue that Officer Wiggum could enter the room because he had probable cause based on the smell in the hall and the smoke pouring out of the room, or because he had consent to enter based on the door being open. However, there is no exception to the warrant requirement merely because the police have probable cause to believe that criminal activity is being conducted on the premises. Moreover, while it might be argued that having the door open was an invitation to enter, here the door was open only because the RA had opened it (unlawfully). The police would not be allowed to take advantage of another government agent’s unlawful activity. Under the exclusionary rule, evidence derived from an unlawful search must be suppressed.
- Was the seizure of the laptop lawful?
No, the seizure of the laptop was unlawful.
The seizure of the laptop was unlawful. Again, the question turns on the lawfulness of the entry. If Officer Wiggum had been in the room lawfully, the plain view exception would apply. When an officer is in a place in which he is privileged to be, and he inadvertently discovers evidence in plain view, he may seize the evidence. Here, Officer Wiggum was not legitimately in the room. If he had been, the other requirements for the plain view exception would apply. During the arrest of Larry, the officer observed the laptop on the desk. It had a label attached to it that read: “property of Ashton Acres,” and the officer had earlier viewed a police report that informed him that Ashton Acres had reported her laptop stolen. Given this prior knowledge regarding the theft of Acre’s laptop, the officer immediately suspected that the laptop that sat on Johnny’s desk was evidence of a crime. As a result, had he legitimately been in the room, he would have been justified in seizing the laptop as evidence of a crime.
It is easy to see that if a crime has been committed, there are various ways to navigate through the legal system. Here, after the initial entry, Larry was able to get off the hook for most of the charges. It is so important that when an officer is exercising a search, he is doing so in accordance with the Fourth Amendment of the US Constitution. If you or a loved one has been involved in a search of your home or automobile by a government agent, call the law offices of Reeves, Aiken & Hightower, LLP for a consultation. You can reach our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999. Don’t stand idly by as your rights are abused. Ensure that you and your house is protected from government intrusion.
Mar 23, 2013 | Burglary/Robbery/Larceny, Uncategorized
Hypothetical: Gerald and Dave planned to rob a bank in York County, South Carolina. Gerald was to go inside with a gun, get the money, and return to the car. Dave was to be the driver of the getaway car. The robbery was carried out as planned; Gerald and Dave left the scene without being apprehended. Thereafter, they decide to hideout in Lancaster, SC. Gerald stayed with Delia, who knew that Gerald and Dave had completed their activity at the bank. Nevertheless, she made no effort to notify the police. She also told Gerald that he could use her car if he wanted to go anywhere. Dave stayed with his mother who also knew the robbery had been committed, but she too made no attempt to notify the police.
- Can Dave be convicted as a principal in the crime of robbery?
Yes, the defendant can be convicted of robbery as a principal
Under South Carolina law, a principal to a crime is any person who has the specific intent to commit a crime and engages in any act necessary to accomplish that crime. Unlike the common law rule, a principal is a person who instigates, encourages, or participates in the commission of the crime in any way. The common law distinctions between the various degrees of accessories have been abolished in South Carolina, and every party to the crime is treated as a principal. Every conspirator to a crime, who does not withdraw from its commission, is treated as a principal.
In this problem, Gerald and Dave entered into a conspiracy to rob a York County bank. Pursuant to the plan, Dave was designated to drive the getaway car after the robbery was committed, while Gerald actually carried out the robbery. After the robbery, Dave drove Gerald away. These acts were part and parcel of the plan to rob the bank. When committed, each participant in the crime is treated as a principal. On these facts, Dave can be convicted as a principal in the robbery.
- Can Delia, or Dave’s mother be convicted of being an accessory after the fact
No, neither Delia nor the mother can be convicted of being an accessory after the fact.
Pursuant to South Carolina law, an accessory after the fact is any person who: (i) has knowledge that the principal has committed a crime; and (ii) knowingly gives personal assistance in escaping or attempting to escape detection, arrest, or punishment. Mere knowledge is not sufficient to support a conviction as an accessory after the fact; nor can a person be convicted because the crime is not reported to the police.
The facts presented in the problem show that Delia, and Dave’s mother both knew that the two principals had committed the robbery. Neither reported the crime to the police, but such reporting is not required, and the failure to do so does not make the person an accessory after the fact. Both had knowledge of the facts, but neither did anything to assist the two avoid detection, arrest, or punishment. This is the case even if Delia offered Gerald the use of her car if he wanted to go anywhere. No facts illustrated that her car was used as assistance in avoiding the detection, arrest, or punishment of Gerald. This offer to allow Gerald to use her car was not sufficient to turn Delia into an accessory after the fact.
If you or a loved one has been charged as an accessory before or after the fact of a crime, the law can get very complicated. This is why it is so important to have adequate representation. Call the law offices of Reeves, Aiken & Hightower, LLP if you have been charged as an accessory to a criminal offense. For a consultation call us at our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.
Mar 22, 2013 | Child Accidents, Uncategorized
A single car accident on I-77 in Richland County caused the death of one person, and injured two children after a 30-year-old man fell asleep behind the wheel of his vehicle. The vehicle overturned ending up on the roof. The driver was not wearing a seatbelt and died on the scene, and the children were also not restrained in the accident. They were injured and taken to the local hospital.
A car accident can alter the life of the people involved in a split second. Whether someone was speeding, not paying attention, or sleeping at the wheel, accidents are inevitable. Even if you or your family members are abiding by the rules of the road, serious injury or even death may occur.
At Reeves, Aiken & Hightower, LLP, we have experienced trial attorneys who are experienced in auto injuries and other personal injuries. We can help you recover what you deserve if an accident has happened in Fort Mill, SC or anywhere else in the Carolinas. Whether you have been involved in a car accident with another vehicle, or a tractor trailer, you need aggressive trial attorneys who are willing to fight for you.
With a combined 75 years of trial experience, the law offices of Reeves, Aiken and Hightower, LLP have helped many people who have suffered as a result of a personal injury. Further, as a former Registered Nurse, attorney Robert J. Reeves has experience in dealing with accident victims first-hand, and understands the long-term consequences associated with a serious accident. Please do not hesitate to call our Baxter Village office in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999 so you can start your road to recovery physically and financially.
Mar 22, 2013 | Car Accidents, Uncategorized
A car accident, involving three vehicles, has resulted in criminal charges for a South Carolina man, according to police. The accident occurred on U.S. 701 near Conway, South Carolina. A 24-year-old man, swerved his car into incoming traffic lanes leading to his striking an incoming vehicle head-on, thereafter he swerved back into the original lane. When the driver re-entered his lane, he struck a van. Nine people were injured including the driver.
The driver is being charged with driving under the influence, driving on a suspended license. However, in addition to these criminal charges, the driver may be liable in civil court for personal injuries and property damage. Under South Carolina personal injury law, the victims of a car accident caused by negligence of another party may look to reimbursement for an injury by pursuing a negligence action.
Negligence Elements Generally in South Carolina:
(1) A duty of care owed by the defendant to the plaintiff
(2) A breach of that duty by a negligent act or omission
(3) Damages proximately resulting from the breach
Elements Defined:
(1) A duty of care is the standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It adheres to the principle that the plaintiff should not be called to suffer harm to his person or property which is foreseeable and which can be avoided by the defendant’s exercise of reasonable care. The duty to act may arise from statute, contract, relationship, status, property interest, or some other special circumstance.
(2) The plaintiff must also show that the defendant did not use the amount of care one ordinarily would have under the circumstances. If the plaintiff shows a duty arising from a statute and the defendant violated a statute, the element is met by proof of negligence per se. In a medical malpractice action, the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures.
(3) Next, the plaintiff must show the breach of duty was the proximate cause of the injury. The South Carolina Supreme Court has said that causation requires proof of (a) causation in fact, and (b) legal cause. Causation in fact is proved by establishing the injury would not have occurred but for the defendants negligence. Legal cause is proven by establishing foreseeability.
If you or a loved one has been injured in an accident of any kind, schedule a consultation with Reeves, Aiken & Hightower, LLP. We understand that an accident can turn one’s life upside down, and we are here to make your life easier. Contact our Baxter Village office in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.
Mar 21, 2013 | Burglary/Robbery/Larceny, Uncategorized
A 27-year-old Effingham, South Carolina man is being charged with Grand Larceny after he allegedly stole golf cart parts, which are valued at more than $10,000. He took the parts from a business on West Palmetto Street. The man was placed in the Florence County Detention Center on a $20,000 bond.
Petty Larceny v. Grand Larceny in South Carolina
SECTION 16-13-30. Petit larceny; grand larceny
(A) simple larceny of any article of goods, choses in action, bank bills, bills receivable, chattels, or other article of personalty of which by law larceny may be committed, or of any fixture, part, or product of the soil severed from the soil by an unlawful act, or has a value of two thousand dollars or less, is petit larceny, a misdemeanor, triable in the magistrates court or municipal court, notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, and 14-25-65. Upon conviction, the person must be fined not more than one thousand dollars, or imprisoned not more than thirty days.
(more…)
