Case-Types

 

Office Info

Jay Kerr Law
84 Peachtree Road, Suite 220
Nettlewood Professional Park
Asheville, NC 28803
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828-285-8911 office
800-322-2906 toll free
828-210-8172 fax

Property Hazard/Premises Liability

Case Type: Premises Liability/ Fall Hazard/Wrongful Death : Fatal Fall by Mason on Construction Site

Lawsuit Filed: Yes (Buncombe County, NC)

Summary : Masonry work fell 32' from scaffolding through an unguarded door opening into an elevator/stairwell shaft, while working for a masonry subcontractor. The Plaintiff Estate Administratrix brought a negligence action against the general contractor (GC) and a separate independent masonry subcontractor who was performing work subcontracted out by the decedent's employer. The Plaintiff alleged that the masonry subcontractor created the hazard by building the opening and then failed to install guardrails as required by OSHA regulations and industry custom. The Plaintiff alleged that the GC not only retained mutual control over the subject portion of the construction site and was imposed with relevant contractual safety obligations, but that it actually inspected the subject opening but failed to ensure that guardrails were installed.

Liability Issues: Yes. Both Defendants contended that the Plaintiff's claims should be dismissed because no legal duty was imposed upon either of them for the direct safety of the decedent worker, and they also alleged the decedent caused his fall by failing to keep a proper lookout for his own safety. Accordingly, they brought Motions for Summary Judgment asking the court to dismiss the Plaintiff's claims on two separate occasions, but which the Plaintiff successfully defeated.

Damages Issues: The Defendants disagreed with the Plaintiff's evaluation of the damages sustained by the persons who would be beneficiaries of any jury award, the surviving spouse and an adult daughter.

Defense Counsel Representation: Yes

Recovery Date: 2010. The parties resolved the claims at a mandatory mediation prior to trial but after extensive evidence was developed. Consequently, the Plaintiff filed a motion to fully eliminate the workers' compensation subrogation lien in excess of $140,000.00, based on alleged employer negligence and equitable principles. The motion was granted by a Superior Court judge after hearing all of the relevant evidence.

Co-Counsel: Robb Hill, Esq. (Asheville, NC)

 

 

Case Type: Premises Liability/Wrongful Death/Medical Office Fall Hazard: 14 year old boy passes out after immunization injection and dies from blunt head trauma

Lawsuit Filed: Yes (Buncombe County)

Summary: Patient obtaining physical for camp required next in series of immunizations. Immediately after injection, he passed out and struck his head on the floor, resulting in near immediate death.

Liability Issues: Plaintiff counsel determined after expert review that the community medical standard of care did not require any additional measures or warnings regarding a potential syncopal event after an injection than those engaged by pediatrician's clinic. However, based on research, Plaintiff counsel learned that a significantly increased incident rate of such syncopal events in teenagers was well-published, and, in response, clinics in many areas were providing warnings for reasonable patient protection (e.g., instructing patients to remain seated for a certain period post injection). Consequently, Plaintiff counsel filed suit against the medical practice, not the physicians, on theories of premises liability and not medical negligence which is governed by strict statutory pre-suit requirements. In response, the defendant filed a motion to dismiss the action in that it only could be properly brought under theories of medical negligence and that no such statutory requirements were met by the Plaintiff. The Plaintiff successfully defended said motion by demonstrating (1) the decedent patient was a lawful visitor on the premises to whom a duty of reasonable care was owed by the medical practice; (2) that such injection activities were performed upon “lawful visitors” (patients) on a regular basis; (3) that such posed a latent (not apparent to the patient) hazard of which the medical practice management was aware; and (4) that the medial practice failed to warn patients of such hazard or take other reasonable precautions.

Damages Issues: The liability issues took precedence in the settlement negotiations, and, the defendants otherwise respected the family's loss of a child.

Defense Counsel Representation: Yes.

Recovery Date: 2007. The suit settled at mediation after extensive evidence was developed. Co-Counsel: Fred D. Smith Jr. (Martinsville, VA)

 

Case Type : Premises Liability/ Fall Hazard/Personal Injuries: Construction Supply Deliverer Falls through Unguarded Floor Opening and Suffers Severe Leg Injuries

Lawsuit Filed: Yes (Henderson County, NC)

Summary: Plaintiff and co-worker entered home under construction at daybreak to survey site for proper delivery location of decking boards. As worker attempted to exit the home which was “dried in” but did not have wall-sheathing installed, he fell into a 10 foot by 12 foot floor opening formed for a basement stairwell, sustaining significant injuries to his ankles and lower back.

Liability Issues : The Defendant Contractor and Defendant Framing Subcontractor alleged that the floor opening was barricaded by a proper railing and that the Plaintiff therefore had attempted to climb over the railing or was otherwise careless. In addition, the Defendants alleged that the Plaintiff otherwise failed to keep a proper lookout for such allegedly open and obvious hazard. Plaintiff's counsel alleged that there were no guardrails present but that such were installed after the subject fall but prior to first responders arriving.

Damages Issues : A comprehensive life care plan assessing the project life-time care expense for the treatment of the Plaintiff's injuries was developed.

Defen se Counsel Representation: Yes

Recovery Date : 2006

Co-Counsel: Fred D. Smith Jr., Esq. (Martinsville, VA)

 

Case Type : Premises Liability/General Negligence /Personal Injuries : Sign Falls Off Auto Parts Store Front and Severs Customer's Achilles ' Tendon

Lawsuit Filed: Yes (Buncombe County, NC)

Summary: As a young man was exiting an auto parts store, a major section of signage over the entrance fell approximately ten feet, deflecting off the young man's shoulder and then severing his Achilles' tendon.

Liability Issues : The store alleged that it had no notice that the signage was in disrepair and likely to fall based on its reasonable inspections. The sign installer alleged that it had installed the sign properly and that it fell due to poor maintenance. The Plaintiff alleged that the sign had been installed improperly and not to industry standards. Plaintiff's mechanical engineering expert testified that such failures were the cause of the sign coming loose absent any unusual wear and tear.

Damages Issues : Plaintiff suffered a re-rupture of the Achilles' tendon after its initial surgical repair, but his treating orthopaedic surgeon stated that such was a reasonable possibility even with normal use.

Defen se Counsel Representation: Yes

Recovery Date : 2006. Settlement offers were extended by the Defendants before suit was filed which the Plaintiff found deficient. Suit was filed and the case resolved at a mediation with all Defendants about two weeks before trial for a substantially greater amount.

 

Case Type : Premises Liability/ Personal Injuries/ Inadequate Security: Elderly lady robbed and assaulted in parking lot of grocery store

Lawsuit Filed: Yes (Buncombe County, NC)

Summary: After leaving the grocery store, an elderly lady was robbed of her purse and thrown to the pavement by an unknown assailant.

Liability Issues : The Defendant regional-chain grocer denied that it had any prior notice of criminal activity on or near its store to cause it to take extraordinary measures either to warn patrons or provide additional security measures, including a potential security guard. Plaintiff alleged that the grocer knew or should have been aware of prior criminal activity of the nature that it should have installed additional measures, similar to what it had done at other stores. Plaintiff's security expert testified that based on his investigation the criminal activity on or near the store that the subject robbery/assault was foreseeable and that local industry custom compelled the store to take additional measures which it failed to install.

Damages Issues : None. Plaintiff suffered an admitted hip fracture as a direct result of the assault

Defense Counsel Representation: Yes

Recovery Date : 2004. The Defendant grocer presented a vigorous defense, including an attempt to have the case dismissed before trial (summary judgment motion) which was denied by the court after considering comprehensive arguments by both parties. After a jury was selected, the parties settled the case for a confidential amount which represented a reasonable compromise between the parties.

 

Case Type: Premises Liability/Electrical Shock Hazard/Personal Injuries: Roof Maintenance Worker Contacts Low-Lying Powerline and Suffers Brain Injury, Severe Burns and Foot Injuries

Lawsuit Filed: Yes (Buncombe County, NC)

Summary: Worker was electrocuted when his head contacted power line across building while inspecting roof for maintenance. Co-worker received a severe electrical shock when he rushed to assist his friend, not appreciating the power line.

Liability Issues: Defendant power company denied liability and alleged that both workers were careless for failing to avoid the power line which it alleged was open and obvious.

Damages Issues: Plaintiff suffered burns to his scalp and severe injuries to his right foot due to the electricity traveling from his head on contact, through his body, and then exiting through his foot. According to his treating neuropsychologist, he also suffered a mild brain injury that caused problems with mental focus, depression, and other cognitive deficits.

Defense Counsel Representation: Yes

Recovery Date: 2002. The case settled at mediation for payment of funds to reasonably compensate the Plaintiff for his future medical expenses, his pain and suffering, and the affects of his injuries on his marital relationship.

Co-Counsel: Ron L. Moore, Esq. (Asheville, NC)

 

Case Type: Premises Liability/Fall Hazard/Personal Injuries: Tractor Trailer Driver Slips and Falls on Sidewalk Entering Fast Food Restaurant

Lawsuit Filed: No. (Gordon County, GA.)

Summary: Truck driver parked in designated lot for truckers and then was compelled to walk across drive-thru lane near which kitchen grease had been spilled on sidewalk by employees carrying out grease regularly to disposal container in rear lot.

Liability Issues: Yes. Defendant fast food restaurant reserved all legal defenses; however, carrier desired to explore pre-suit resolution based on liability documentation presented, which included evidence of hazard creation by Defendant and trucker's compelled route causing hazard encounter.

Damages Issues: The Defendant carrier made a reasonable evaluation of the Plaintiff's permanent injuries. Plaintiff had retired from trucking company but returned for a brief period. He sustained a significant knee injury in the fall which required a total knee replacement procedure. Due to residual knee impairments, he became totally disabled from work .

Defense Counsel Representation: No.

Recovery Date: 2000

 

Case Type: Premises Liability/Personal Injuries/Inadequate Security: Woman attacked and stabbed 29 times in convenience store restroom

Lawsuit Filed: Yes (Haywood County, NC)

Summary: Middle age couple stopped for gas on way to Cherokee for camping trip. While husband pumped gas, wife asked store attendant for restroom key. She was instructed that there was no key and the restrooms were outside in a separate building. While in a stall, a man dressed in women's clothing attacked the woman and stabbed her 29 times.

Liability Issues: Yes. Liability was denied by the Defendants on the basis that they did not have any prior notice of similar criminal activity which would have caused them to take additional precautions. Plaintiff's security expert testified that key-control was required due to the lack of clerk visibility from the store interior of the restrooms and the specific history of parking lot criminal activity. The attacker was never captured.

Damages Issues: The woman suffered a chronic post-traumatic stress disorder, including nightmares about her attacker. Although her stab wounds were severe, she did not suffer any significant permanent damage, despite a punctured lung.

Defense Counsel Representation: Yes

Recovery Date: 2000

 

Case Type: Premises Liability/Fall Hazard/Personal Injuries: Driver Suffers Brain Injury and Severe Arm Injuries after Falling from Petroleum Tanker Top While Loading Fuel

Lawsuit Filed: Yes (Spartanburg County, SC)

Summary: Tanker truck driver fell from top of tanker while loading fuel, suffering severe compound fractures in both forearms and a significant closed-head injury.

Liability Issues: Yes. Defendant petroleum storage facility denied liability alleging it sold product in the usual and customary manner and that any fall hazards were open and obvious. The adjacent access platform where tankers were parked for loading had guardrails, but drivers were compelled to use narrow tanker-top “catwalk” which did not have any guardrails. Drivers were further compelled to move filling nozzle with chain mechanism to fill tanker, which Plaintiff alleged posed a fall hazard. Plaintiff presented evidence of similar plants in relevant geographical area that had a “flip-down” guardrail system which dropped from adjacent platform over the tanker catwalk, providing reasonable fall prevention/protection.

Damages Issues: The Plaintiff's resultant disabilities as a direct result of his injuries were at

issue.

Defense Counsel Representation: Yes.

Recovery Date: 1997

Co-Counsel: Admitted pro hac vice with assistance from Ernie Trammel, Esq., Anderson, SC.

 

Case Type: Premises Liability/Fall Hazard/Personal Injuries: Construction Worker Slips & Falls on Discharged Hydraulic Fluid Suffering a Severe Lumbar Spine injury requiring Plate & Rod Fusion

Lawsuit Filed: No.

Summary: Worker entered designated room where equipment “gang boxes” for all subcontractors were maintained, turned on light switch, took two steps, and slipped in hydraulic fluid. Third-party subcontractors experienced a busted hydraulic line on concrete saw while using gang box room. They left the room to seek repair part by closing, but not locking, door, turning off light, and failing to post any warning of fall hazard.

Liability Issues: Yes. Defendant general contractor and subcontractor alleged no duty to warn of hazard which they alleged was open and obvious to anyone using reasonable care entering room. However, in settlement negotiations, the Defendants did not seek substantial discount based on such allegations, and reasonable damages were recovered.

Damages Issues: Worker had a congenital spine condition (bilateral pars defect) that made him more susceptible to spinal trauma. However, he had experienced no back problems before the fall trauma, and his treating neurosurgeon stated that the trauma necessitated his spinal fusion.

Defense Counsel Representation: No

Recovery Date: 1995

Co-Counsel: Ron L. Moore, Esq. (Asheville, NC)
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