Mar 4, 2013 | Car Accidents, Personal Injury, Uncategorized
Highway work crews were busy on Friday afternoon after a violent accident occcured on Interstate 77. The highway crews worked to clear debris from the Interstate after a vehicle accident.
The accident occurred around 3:11 p.m. at the intersection of Interstate 77 and the Brookshire Freeway. The NC Department of Transportation expects delays and to use caution when traveling through the area. Traffic was backed up almost 9 miles to Interstate 485 near the border of North and South Carolina.
Any type of serious injury can bring harm to the victim and his/her loved ones. One may have an action to recover damages for injuries sustained during an accident.
Contact the law offices of Reeves, Aiken, and Hightower to consult with one of our personal injury attorneys. Our personal injury attorneys understand the emotional and financial hardships facing persons injured in an accident and want to help you or someone you might know. We are licensed in both North and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.
Mar 1, 2013 | Criminal Defense, Uncategorized
The South Carolina Supreme Court decided in State v. Harrison that 20 years in prison for leaving the scene of an accident resulting in a death was not cruel and unusual punishment for the purposes of the 8th Amendment to the US Constitution:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The incident occurred in Greenwood County west of Columbia. Two motorcyclists were traveling down the left southbound lane of Highway 25, a four-lane road. They were riding tandem, with a bike’s length separation between them. Harrison, whose license was suspended, turned right onto the highway, moving into the left southbound lane, in front of the two motorcyclists. The first motorcyclist briefly lost control, while trying to avoid Harrison’s truck, and shifted into the right lane. Harrison also moved back into the right lane. The truck and the first bike collided. That biker ended up flipping over and was left in the road. Harrison did not stop and continued driving down the highway. The second biker followed him. Eventually Harrison stopped. The second biker told him that the first was lying in the road, maybe dead. Harrison inspected the truck and said he would return to the scene. He did not return, and never did. The first motorcycle rider did in fact die. South Carolina imposes a duty on drivers involved in an accident to give reasonable assistance to those injured in the accident (e.g., calling 911 or driving them to a hospital).
The state did not charge Harrison with reckless vehicular homicide, which requires reckless conduct and carries a maximum of 10 years (SC Code § 56-5-2910), but leaving the scene of an accident, § 15-5-1210, and driving under suspension, § 56-1-0460. The jury convicted him, and the judge sentenced him to 20 years. The maximum sentence for leaving the scene of an accident when a death results is actually 25 years.
The South Carolina Supreme Court upheld the sentence. The Court recited its restrictive scope of review in cases like this one:
This Court has a very limited scope of review in cases involving a constitutional challenge to a statute. Joytime Distrib. & Amusement Co. v. State, 338 S.C. 634, 640, 528 S.E. 2d 647, 651 (1999). All statutes are presumed constitutional and will, if possible, be c onstrued so as to render them valid. Davis v. Cnty. of Greenville, 332 S.C. 73, 77, 470 S.E.2d 94, 96 (1996). A legislative act will not be declared unconstitutional unless its repugnance to the constitution is clear beyond a reasonable doubt. Westvaco Corp. v. S.C. Dep’t of Revenue, 321 S.C. 59, 62, 467 S.E.2d 739, 741 (1995).
Without getting too deep into the brambles, the Court recognizes the rule in the Kennedy concurrence in Harmelin, i.e., “intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality,” Harmelin v. Michigan, 501 U.S. 957, 1005 (1991), as the controlling law.
The Court decided the sentence was proportionate enough and cited the trial judge’s comments at sentencing as “the very embodiment of proportionality”: “I understand that there was no intent to cause this accident, I understand that you did not set out on this particular day to injure [the Victim] or anyone else, for that matter. The inescapable fact, though . . . is that in reality you caused this accident by being present where you had no business to be and that you were driving a car, sir . . . . I also have to consider your criminal history. I count [twenty-seven] offenses. A lot of these, I agree with your attorney, they happened when you were young and I understand . . . how young people can make mistakes . . . I just can’t disregard it . . . because you have demonstrated over and over again a pattern of being unable to not only obey the law but to stay out from behind the wheel of a car . . . . It is my job to take all of this into consideration and work out some sort of calculation, and I’m not all unsympathetic to the arguments of counsel that you are being punished far in excess.”
The Court noted that Harmelin stops the analysis at a finding of proportionality, but the Court continued to give guidance on the new analysis.
In intrajurisdictional analysis, the Court looked to reckless vehicular homicide, SC Code Ann. § 56-5-2910, and DUI involving great bodily injury or death, SC Code Ann. § 56-5-2945. Reckless vehicular homicide carries a maximum of 10 years prison, and no mandatory minimum term. DUI involving death carries one to 25 years. The Court points to the trial courts discretion in sentencing and concludes that a intrajurisdictional comparison does not support an inference of gross disproportionality.
The same is true of the interjurisdictional comparisons.
Georgia’s § 40-6-270 provides that leaving the scene of an accident, where the accident causes death, carries one to five years, but cross-references the Georgia vehicular homicide statute which provides three to 15 years, which the Court calls “not substantially different” from South Carolina’s statute. The Court provides less in depth analysis of other comparisons (only one other state, Wisconsin, was cited as having a 25 year maximum) and concludes that inter jurisdiction comparisons provide no inference of gross disproportionality.
Justice Pleicones concurred in judgment only. All others joined Chief Justice Toal.
Feb 22, 2013 | Uncategorized, Workers' Compensation
The South Carolina Supreme Court has just adopted for the first time the dual persona doctrine in workers’ compensation in Mendenall v. Anderson Hardwood Floors. The Court did so in answering the following question certified to it by the Federal District Court for the District of South Carolina:
Does the “dual persona” doctrine allow an injured employee to bring an action in tort against his employer as a successor in interest who, through a corporate merger, received all liabilities of a predecessor corporation that never employed the injured person but allegedly performed the negligent acts that later caused the employee’s injuries, or is such action barred by the exclusivity provision of the South Carolina Workers’ Compensation Act?
While the SC Workers’ Compensation statute provides immunity for statutory employers under § 42-1-540 when an employee is injured in the course of their employment, it is well settled that employees can recovery against third-parties (i.e., anyone who caused their on-the-job injury other than their employer). Analogizing this principle to cases where the employer and employee may have separate relationships and obligations independent of the employer-employee relationship, some courts have adopted either or both the dual capacity doctrine and dual persona doctrine. The dual capacity doctrine allows an employee to sue an employer in tort when the employer has an obligation independent of those owed as an employer. South Carolina had rejected the dual capacity doctrine, Johnson v. Rental Uniform Serv. of Greenville, 316 S.C. 70, 70, 447 S.E.2d 184, 185 (1994), but had only discussed and not adopted the dual capacity doctrine. Tatum v. Med. Univ. of S.C., 346 S.C. 194, 205, 552 S.E.2d 18, 24 (2001).
The dual persona doctrine applies when:
[a]n employer may become a third person, vulnerable to tort suit by an employee, if—and only if—it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.
Since the SC Supreme Court was answering a question certified to it by the federal district court on the motion of the plaintiff’s attorney, the Court left it to the District Court to apply the law to the facts, this case does provide a good of example of a case where the dual persona doctrine would apply. In this case, Mr. Mendenall was hired by Anderson Hardwood Floors to work in their Colleton County wood product manufacturing plant. The original owner of that Colleton County plant, Walterboro Veneer, had designed and built a cement vat for the purpose of soaking hardwood logs in a high-temperature solution. Years later all of the assets and liabilities of Walterboro Veneer ended up with Anderson Hardwood Floors. After four months of working with Anderson, Mr. Mendenall while attempting to access a pipe to repair a steam leak fell into the 190º F vat. Suffering serious burns on over 90% of his body, Mr. Mendenall soon died.
The dual persona doctrine should apply here because a separate legal entity from Anderson, that never employed Mr. Mendenall, built and designed the vat. If the vat had been built for Anderson by a contractor, the plaintiff would have been able to recover. To satisfy the doctrine, the second persona need only be so different that the law would treat them differently. In this case, they were actually separate legal persons, although Anderson was the successor to the third party.
Feb 21, 2013 | Uncategorized, Workers' Compensation
The South Carolina Workers’ Compensation system provides only for those injured while employees under the Workers’ Compensation statute. In Simmons v. SC STRONG, the South Carolina Court of Appeals found that Simmons was not a statutory employee, but rather a volunteer. South Carolina STRONG is a non-profit organization that seeks to rehabilitate those who have been convicted of crimes or suffered substance-abuse through a two-year program of structured work and job-training. SC STRONG is paid for the work the participants do, but the participants agree to not be paid for their work. SC STRONG gives the participants room, board, clothing, and job training.
Whether an individual is a statutory employee is a jurisdictional question determined by fact, and the standard of review for an appeals court is de novo. The Court of Appeals takes its own view of the preponderance of the evidence. Shuler v. Tri-County Elec. Co-op., Inc., 374 S.C. 516, 520, 649 S.E.2d 98, 100 (Ct. App. 2007), aff’d, 385 S.C. 470, 472, 684 S.E.2d 765, 767 (2009).
The Appellate Panel of the Workers’ Compensation Commission relied on three cases finding volunteers not to be statutory employees:
Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994) (finding unpaid daughter of store owner not an employee)… Doe v. Greenville Hosp. Sys., 323 S.C. 33, 39-40, 448 S.E.2d 564, 567-68 (Ct. App. 1994) (holding an unpaid volunteer candy striper was not the employee of a hospital);
McCreery v. Covenant Presbyterian, 299 S.C. 218, 223-24, 383 S.E.2d 264, 267 (1989) (finding an unpaid church volunteer not an employee of the church for workers’ compensation purposes), rev’d on other grounds, 303 S.C. 271, 400 S.E.2d 130 (1990).
Simmons counted by citing Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994), for the proposition that statutory employees need not be paid in cash. In Wilson, the South Carolina Supreme Court disregarded the usual rule that jurors are not workers’ compensation employees, instead emphasizing that Wilson had worked at the direction of the clerk of court for the benefit of the county. The Court of Appeals distinguished Wilson from the Simmons case, reasoning:
The circuit court required Wilson to perform janitorial services in lieu of jury service. Simmons was an admitted volunteer who chose to participate in the SC STRONG program in lieu of serving his prison sentence.
It seems that the court is emphasizing the choice to volunteer, over the compulsion by the court, although it is not clear. In both cases, a person is working under the supervision of the court without cash pay. However, Wilson received nothing in exchange for his janitorial work, except excuse from jury duty (It is not clear how Wilson comes out ahead hear.). Simmons on the 0therhand received room and board, which unlike excuse from jury duty is available on the open market. Oddly, had Simmons been injured while working in prison, he would have been entitled to workers’ compensation.
The court does not consider whether Simmons was an apprentice, noting that Simmons waived the issue by raising it for the first time in his reply brief before the Court of Appeals and not raising it at all before the appellate panel. The case law generally provides that statutory employees must have some entitlement to pay, but the statute does specifically mention apprentices.
Simmons might have a separate remedy. Since Simmons is not a statutory employee of SC STRONG, it is possible that he could sue SC STRONG outside of workers’ compensation in ordinary negligence, or some other cause of action. However, outside of workers’ compensation, a plaintiff has to prove liability (e.g., the employers’ negligence), while being injured on the job is enough in workers’ compensation.
Feb 20, 2013 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Felony Drug Possession, Felony Possession of a Firearm, Possession with Intent to Distribute a Controlled Substance, Uncategorized
Four Rock Hill teenagers were arrested on Sunday morning after officers stumbled upon an underage drinking party with guns and empty bottle of liquor.
All four were charged with minor in possession of alcohol and one was charged with discharging a firearm in city limits. According to a police report, officers were called to Baylor Drive off Mount Gallant Road after someone called in to complain about a loud party on the top of a hill. When officers approached the house, they heard a gunshot from behind the residence along with chatter coming from the garage at the residence.
When police walked around the back of the house, they found one teenager who dropped a shotgun and had alcohol on his breath. Officers also found another teenager walking around the back of the house and a 15-year old girl hiding in the shed. After officers had knocked on the front door for a while, they arrested another teenager who came outside claiming he was asleep during the whole fiasco.
Contact the law offices of Reeves, Aiken, and Hightower to consult with one of our criminal attorneys about any type of drug charges. Our criminal attorneys also handle many different types of criminal cases in addition to drug charges in North and South Carolina. We are licensed in both North Carolina and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.
Feb 20, 2013 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Premises Liability, Uncategorized
A Rock Hill man became bored and went to a college class. Rock Hill Police stated that the man showed up to a class at York Technical College on Monday drunk.
According to a police report, the man was not a student at the school. The report stated the man entered a class and was told to leave by a teacher, which he refused to do. An officer arrived and spoke with the man and the officer noticed he smelled like alcohol, had slurred speech, and difficulty answering simple questions.
The man said he drove to the school after drinking that morning, but stated he couldn’t remember why he drove to the school. The man was arrested for public intoxication and was released Monday on a $250 bond.
If you or someone you know has been charged with a serious crime, contact the law offices of Reeves, Aiken, and Hightower to consult with one of our criminal attorneys about any criminal charges. Our criminal attorneys handle many types of criminal cases in North and South Carolina and want to help you with your criminal charges. We are licensed in both North and South Carolina, where you can contact us at 704-499-9000 or 877-374-5999 toll-free.
