In a recent case, the North Carolina Court of Appeal issued an opinion in a case involving a slip and fall accident. The plaintiff in the case slipped and fell on a molded walkway in her condo complex, and she filed a claim for compensation. The plaintiff alleged that she always used a stairway on the side of the building to access her condo. During August 2012, however, the plaintiff was recovering from rotator cuff surgery. The building featured two wooden walkways on either side of the building to get to the parking lot. Each walkway featured a 90-degree turn around a white column.

The building owner contracted with a company to maintain the common areas, including the walkways. In November 2012, one of its employees notified the defendant that one of the walkways was suffering from dangerous mold growth that made the surface slick when wet. She suggested that the defendant power wash the walkways but never received a response. Shortly afterward, the plaintiff used the elevator to go to the ground floor to get her suitcase. She was unaware that it had rained overnight. After turning on the 90-degree angle of the walkway, the plaintiff slipped on the slimy mold and fell, causing her to break her femur.

In response to the complaint, the defendant alleged that the plaintiff was contributorily negligent and moved for summary judgment. It argued that the plaintiff did not look down while she was traversing the walkway and that she should have been aware that the rain from overnight made the surface more slippery. The defendant also noted that individuals have a common duty to exercise care and keep a proper lookout when going about their daily business. The lower court granted summary judgment in favor of the defendant, and the plaintiff appealed.

The appellate court reversed and concluded that the evidence failed to establish that she was contributorily negligent as a matter of law. The court concluded that even had the plaintiff looked down while traversing the walkway, it is unclear whether she would have seen the dangerous condition that the mold presented. The photographic evidence of the walkway presented at trial only showed a slight discoloration on the surface.

If you were hurt in a slip and fall accident, it is critical that you speak to a dedicated slip and fall lawyer as soon as possible to determine whether you can seek compensation from the persons or companies responsible. Our diligent team of legal professionals offers a free consultation, so call us now at 704-243-9292 or contact us online to get started.

Obtaining any evidence possible to show that the defendant’s conduct caused your injuries is a critical step to securing the compensation that you deserve. A North Carolina Court of Appeal recently heard a case in which the plaintiff alleged that she slipped and fell on an oily substance in the defendant’s store in the Wake Forest neighborhood. She was shopping with a friend who caught her as she fell. The store manager had her fill out a customer statement in which she wrote that there was a greasy substance with food particles on the floor. She also reported that her right hip and ankle were painful. The manager informed the plaintiff that the incident was on camera, but there was no surveillance of the accident. The woman did not seek medical attention.

After a jury trial, the jury concluded that the defendant’s conduct was not the cause of the plaintiff’s alleged injuries. The trial court denied the plaintiff’s motion for a new trial and the plaintiff appealed, challenging a number of items including the jury instructions that the court provided to the jury and the denial of her motion for a new trial.

Regarding her jury instruction challenge, the plaintiff argued that the lower court erred when denying her request to instruct the jury on spoliation of evidence regarding the failure of the defendants to produce video surveillance regarding the fall.

The appellate court disagreed, noting that the plaintiff failed to include portions of the trial court record in which the plaintiff testified that the store manager informed her that the incident was caught on camera. No other evidence in the record supporter her assertion that the fall was recorded, so the trial court was within its bounds in denying the request to instruct the jury on spoilage.

Finally, the appellate court concluded that denying the plaintiff’s motion for a new trial was not an error because the court did not commit other reversible errors regarding the jury instructions and motions in limine. Based on this, it dismissed the plaintiff’s appeal and upheld the lower court’s ruling.

If you were injured in a slip-and-fall accident, you should speak to a knowledgable North Carolina premises liability attorney as soon as possible to ensure that any evidence supporting your case is preserved and protected. At Maurer Law, we will ensure that your rights are asserted to the fullest extent and that you receive the settlement or judgment that you deserve. We provide a free consultation to help you learn about our team and to discuss your situation. Call us now at 704-243-9292 or contact us online to get started.

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In a recent North Carolina appellate opinion, the plaintiff had parked her car in a handicap parking space at a mall in Henderson County. When the plaintiff exited her vehicle, she tripped and fell on a portion of pavement that was uneven. In her complaint, she alleged that she sustained severe and painful injuries as a result of the fall. The incident was reported to the property manager, who prepared a report regarding the incident. The facility had a policy that any occurrences on the property would be reported.

After the lawsuit commenced, the plaintiff served interrogatories on the defendants and asked for copies of any and all incident reports that were prepared regarding the trip and fall. The defendants refused to provide the report, stating that it was protected under the rule that protects information prepared in anticipation of litigation. This is similar to the attorney-client privilege rule, which protects information shared between a client and attorney for the purpose of obtaining legal advice.

The parties were unable to resolve the discovery dispute, and the plaintiff filed a motion to compel production of the documents. The trial court ruled that the report was not prepared in preparation of litigation and that it was part of a routine process at the business. The defendant appealed.

On review, the court first reviewed the concept of documents and information prepared in anticipation of litigation, noting that the court routinely held that reports prepared as part of an ordinary course of business are not considered work product and will not be protected. Instead, the work product doctrine is intended to protect information that reflects conclusions, opinions, mental impressions, or legal theories of an attorney or a party’s representatives regarding litigation. The court also reviewed the property company’s policy handbook and found that the language regarding reporting occurrences affirmed that the reports were a routine and ordinary business practice.

The defendant tried to argue that the report gave employees discretion regarding whether they could prepare a report and that it did not include any non-litigation statement in the policy. The court rejected this argument, again noting that business records are not considered protected as work product. Had the policy handbook contained some statement about the reports being intended for any litigation arising from the incidents, the appellate court may have decided the matter differently.

If you were injured in a premises liability accident, you may be entitled to compensation from the property owner. Understanding your legal rights and knowing how to proceed to recover compensation can be daunting. At Maurer Law, we can provide you with the reliable and trusted legal counsel that victims require when coping with this type of event. To schedule your free consultation, call us at 704-243-9292 or contact us online.

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Injuries Arising out of a North Carolina Battery

Starting in 2013, the city leased the building to an art guild, which wasn’t affiliated with the city or the county. The city leased the building in order to fill a vacancy and remove blight from the vacant downtown buildings. The purpose of the lease wasn’t profit, and the city kept its responsibility to inspect the building and maintain its exterior.

The art guild was limited to using the location as an art gallery, studio, and gift shop under the lease terms. The art guild had to provide compensation in the form of 90% of all of the rent money it got from subtenants, 30% of the gross sales receipts received for art sold in that location, and 15% of its gross sales receipts, and the subtenants had to provide at least 15 hours of volunteer time at the gallery as well as performing other tasks.

The subtenants got 19 private art studios in exchange. The plaintiff was a subtenant of the art guild who paid $95 each month to rent her studio, and 90% of that was paid to the city.

While leaving the premises through a rear exit and carrying multiple large pictures, the plaintiff lost her balance on the steps and suffered a broken hip. She incurred a lot of expenses, including hospital bills. Some of the cement on the steps had eroded, and since she’d been carrying pictures, she was prevented from seeing where she was stepping.

In 2015, she sued the defendant for negligently failing to keep up the exit or warn of its dangerous condition. The defendant filed for summary judgment, arguing it had governmental immunity. The motion was granted. The plaintiff appealed.

The appellate court explained that under the governmental immunity doctrine, a county or municipal corporation can’t be sued for its employees’ negligence while exercising governmental functions, unless there is a waiver of that immunity.

Governmental immunity isn’t applicable if a municipality engages in a proprietary function, as opposed to a governmental function. The latter is an activity that’s public, legislative, political, or discretionary and performed for the public good rather than for the benefit of the State. A proprietary function is an activity performed mostly for private advantage or commercial reasons. When it’s not clear whether an activity is proprietary or governmental, the doubt should be resolved against the city.

In this case, the plaintiff had sued the city on the basis of its ownership of a building leased to a nonprofit as part of revitalization efforts. The legislature had authorized cities to establish municipal service districts for the purpose of revitalization projects.

If a service at issue can be provided both privately and publicly, the court looks at multiple factors, including whether the service is traditionally provided by the government, the fee charged, and whether the fee does more than reimburse the operating costs.

In this case, the city received substantial revenue from many sources from the lease, and it provided so much pecuniary advantage that governmental immunity could not be applied. Specifically, the terms of the agreement, including the receipt of 15% commission on all private art sold, heavily weighed ownership and maintenance of the building as a proprietary function. Therefore, the court held the defendant wasn’t immune from suit.

Moreover, the appellate court found that the defendant was responsible for maintaining the steps, and the exit where the plaintiff fell was the only way to exit. The plaintiff was a subtenant, and the steps didn’t meet code standards. The defendant argued that the plaintiff was contributorily negligent because she was carrying big pictures that prevented her from seeing the steps. However, the appellate court found that a jury could find she acted reasonably, since there was no other way to leave the premises. Summary judgment was reversed.

If you suffered injuries due to the wrongful conduct or negligence of another party, the experienced North Carolina premises liability lawyers at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.

The case arose in 2012 when the plaintiff tripped and fell inside an auto parts store. He submitted his claim for injuries to the third-party administrator that administered the liability policy for the store. In a letter, the third-party administrator named its insured as the auto parts store and denied that the insured was negligent.

The plaintiff sued the defendant in October 2015, naming it incorrectly. In December, the plaintiff filed a notice to amend the complaint, providing a second name for the owner of the store. Civil summons were directed to both of the possible names.

The first defendant filed an answer to the original complaint, asking it to be dismissed under the North Carolina Rules of Civil Procedure for a failure to state a claim. It also asked for summary judgment in the alternative on the grounds that it didn’t lease or maintain the premises identified in the plaintiff’s complaint. It filed a second summary judgment motion, arguing there was no duty to the plaintiff because it didn’t own the store, the statute of limitations had expired, and any attempted amendment wouldn’t relate back to the original complaint. To this motion, it attached an affidavit from its senior claims manager, who said the defendant was a holding company, and the other name was a subsidiary that owned and operated the store where the plaintiff had tripped and fallen. The first defendant also answered the amended complaint, asking for dismissal and summary judgment.

The defendant who’d been named in the second complaint answered the amended complaint and asked for dismissal, arguing that it was a separate legal entity and that the statute of limitations had expired. No evidence was attached to the motion.

The plaintiff opposed the first defendant’s motion for summary judgment. It submitted an affidavit from the plaintiff’s attorney and two exhibits. The affidavit described how the plaintiff’s attorney had tried to find the correct defendant and had used the claims administrator’s letter in order to search the corporate registry for the name. The attorney’s paralegal had confirmed the choice of name by Googling it and looking at the website.

The second defendant filed a memorandum that included multiple evidentiary exhibits. It also presented the court with an application for a North Carolina certificate of authority to show that the first defendant was a Delaware corporation. The first amendment later did the same.

Summary judgment was granted to the second defendant based on evidence it submitted from the Register of Deeds, showing that it was the corporate entity operating the retail store and that the statute of limitations had expired in October 2015, before the amended complaint was filed. The lower court determined that under Rule 15(c), there was no leeway to add a new party to an existing lawsuit except to correct a mistake in the party’s name. It found the amendment tried to bring in a new defendant, rather than just correct a mistake. The trial court also issued an order granting summary judgment to the first defendant on the original complaint.

The plaintiff argued that it had relied on the claims manager’s letter. However, the trial court found the letter did not show any effort to mislead or misrepresent the name of its insured. The plaintiff appealed, arguing that its amended complaint should have related back. In North Carolina, the statute of limitations for a personal injury claim is three years. The plaintiff could have amended the pleading once before an answer was filed but could only do so after the statute of limitations expired if the amendment related back.

The appellate court explained that a misnomer is a mistake in names that is technical. It is distinct from the wrong name of a legal entity that uses two names or a situation in which the plaintiff substitutes one legal entity for another. The appellate court found that the plaintiff’s amendment tried to substitute a legal entity for a different legal entity. The two named defendants were separate corporations. The appellate court also explained that equitable estoppel could be invoked only if the defendant had acted in a way that amounted to a false representation or concealment of material facts, knowing that the other party would rely on it. There was no evidence of that here, so summary judgment was proper.

It is crucial to name the right defendant in your trip and fall lawsuit. If you were injured by a dangerous condition in a retail store, the experienced Raleigh premises liability attorneys at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.

At the ER, a nurse evaluated the mother’s complaint and determined which priority she should be. She asked for an x-ray chest PA or AP. The PA chest x-ray required a patient to stand, while the AP could be taken with the patient lying down or sitting or standing. However, the PA provided more information about the patient, permitting a more accurate diagnosis.

After several minutes, the mother was taken to a restricted area within the ER and evaluated by a different nurse. The x-ray technician met the mother and her daughter in the hall and took her in a wheelchair to radiology. The daughter stayed in the hall. The tech explained what was going to happen to the mother, asking her if she could stand, and the mother answered that she thought she could stand. The mother then stood up without help. However, the tech spoke to a doctor later in the day and told the doctor that she stood the patient up.

The mother took steps toward the wall. The tech thought she seemed stable. The tech turned and walked away to get a tube in position. When the tech turned back, she saw the mother falling back. The mother’s head hit the floor, and she suffered a severe traumatic brain injury that left her unable to speak or perform her usual activities of daily living. She became a resident at a long-term nursing care facility, where she got 24-hour care. She died in the nursing home about 15 months after the fall.

While she was still alive, her daughters sued the tech for negligence on a theory of res ipsa loquitur. They claimed the tech had negligently taken the mother to and from the x-ray room, asked the mother to stand without support, put her in an unsteady position, failed to secure her, failed to take precautions against falls, and acted negligently in other ways. There was no claim for medical malpractice, and the plaintiffs didn’t comply with North Carolina’s Rule 9(j), which requires a plaintiff to have an expert review a lawsuit before filing a medical malpractice case.

The defendant asked the case to be dismissed for a failure to comply with the rule. In her discovery responses, the plaintiff specified acts of negligence, including the defendant’s failure to ask the plaintiff about her history of falls and failure to conduct a fall risk assessment to decide whether to take the x-ray PA or AP. She also claimed that the defendant failed to administer the x-ray correctly.

The defendant moved for summary judgment on the ground that no expert review had taken place, as required by North Carolina law. The motion was granted. The plaintiffs appealed.

On appeal, the plaintiffs argued that their case shouldn’t have been dismissed because they hadn’t claimed medical malpractice but only ordinary negligence. The appellate court disagreed. It explained that the plaintiff’s discovery responses showed they were alleging the defendant had negligently failed to provide professional services. The injury had arisen out of the x-ray technician’s actions, which required the use of clinical judgment.

The appellate court explained that in North Carolina, a medical malpractice action is one for damages arising out of the failure to provide or the provision of professional services by a health care provider under N.C. Gen. Stat. § 90-21.11(2)(a). The plaintiffs had made several contentions that the defendant had negligently provided or failed to provide specific professional services, like assessing the patient. The appellate court found that since there was no 9(j) certification, they didn’t allege a viable claim for medical malpractice. The appellate court affirmed this part of the lower court’s ruling.

If your loved one has suffered a traumatic brain injury, the experienced personal injury attorneys at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.

He sued the defendant in 2014, claiming negligence and loss of consortium. The defendant filed a motion for summary judgment, which was granted. The plaintiff appealed. He argued that there was a genuine factual issue about whether the condition that caused him to trip and fall was open and obvious. He argued that the tomato crates were not open and obvious, and the defendant was negligent.

The appellate court disagreed. It explained that a trip and fall plaintiff needs to prove that the defendant failed to use proper care in performing a legal duty owed to the plaintiff and that this breach of duty was the legal cause of the plaintiff’s injuries. In North Carolina, property owners owe a duty of reasonable care to all lawful visitors. Business owners are expected to keep the parts of the property that they reasonably expect will be used by customers in a reasonably safe condition during business hours. They are supposed to provide warnings of hidden dangers or unsafe conditions that can’t be seen through a customer’s reasonable observation. However, an owner need not warn customers of obvious dangers of which customers have equal or better knowledge.

The plaintiff in this case had first seen the tomato crates when he walked down the aisle to ask where the plants were, and nothing blocked him from seeing the crates when he backed up the aisle. The appellate court found that the crates were an obvious condition of which the plaintiff knew or should have known at the time of falling, and the defendant didn’t owe a duty to warn of this obvious condition.

The plaintiff also argued that even if the crates were open and obvious, the defendant owed the plaintiff a duty to warn because he couldn’t negotiate the aisle with reasonable safety. The appellate court pointed out that icy steps are an example of a condition that can’t be negotiated with reasonable safety, even if a customer is fully aware of it. It found that the crates could have been negotiated with reasonable safety, since the plaintiff had walked down the aisle once without having any trouble.

The plaintiff also argued on appeal that the defendant failed to immediately seek medical attention for him after his accident. However, the plaintiff had not raised the issue below nor presented an argument or evidence that the defendant was negligent in not getting medical help for the plaintiff before it cleaned up the tomato crates that cluttered the aisle after the plaintiff’s fall. The appellate court held that summary judgment was properly granted for the defendant and affirmed.

If you were injured by a dangerous condition in a retail store, the experienced premises liability attorneys at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.

There’s no duty to safeguard a lawful visitor from dangers that are either known to him or so obvious and apparent the owner can reasonably expect a visitor to discover them. Property owners are not expected to ensure their visitors’ safety, however. If you suffer a slip and fall, it is important to photograph the area and figure out which dangerous condition caused your fall, as illustrated by the following case.

In Skipper v. Wayne Oil Company, a North Carolina plaintiff appealed after the court granted summary judgment in a slip and fall case. The plaintiff was a foreman from Tennessee who installed cell phone towers and was building one in North Carolina. When he left his hotel on the morning of the accident, he crossed the parking lot of the defendant’s gas station. The parking lot didn’t look slippery, so he went into the convenience store and bought various items. As he left and returned the way he came, he slipped and rolled his ankle. He fell. The pain worsened as he walked back to the hotel.

He asked the hotel desk clerk to call an ambulance. and it turned out he’d broken his ankle in multiple places. He needed two surgeries to fix his ankle and continued to suffer pain by the time he was deposed in his slip and fall lawsuit. He sued the defendant, claiming the defendant’s negligence caused his fall on black ice, and as a result, he suffered serious injuries. At trial, the defendant’s maintenance worker testified he’d seen salt on the sidewalks when he got there that morning, but he salted other parts of the lot and sidewalk where he thought people would walk.

Summary judgment was granted for the defendant, and the plaintiff appealed. He argued that he believed there was enough evidence to find that the defendant failed to adequately prevent his fall on black ice or warn him about it.

The appellate court disagreed. It explained usually issues of negligence aren’t determined through summary judgment. However, in this case, the plaintiff hadn’t presented evidence to even show he actually slipped on ice. He walked across the lot and went into the store, and he didn’t slip on ice or even think the lot was slippery. On the return path, he fell. He reported to employees he had slipped on ice at the time of the accident, but he actually wasn’t certain what caused him to slip. The cashier had seen a little bit of ice around the lot, but it was thin and not visible where the plaintiff had fallen.

The appellate court reasoned that the plaintiff had to show he actually slipped on ice to recover compensation. The evidence he did have didn’t show a causal connection between the plaintiff’s injury and negligent conduct by the defendant. The appellate court affirmed the lower court’s order.

If you were hurt in a slip and fall on somebody else’s property, the experienced premises liability attorneys at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.

Usually, constructive notice is established by showing a substance was on the floor of the store for long enough that in the course of exercising reasonable care, the storeowner should have discovered it.

In some cases, surveillance footage can be used to establish the amount of time a substance was on the floor or how the substance came to be on the floor. Sometimes surveillance can be powerful evidence to convince a jury of constructive notice. However, as part of its business practices, the court may erase and reuse old surveillance footage. Therefore, it is critical to contact an attorney as soon as possible after a slip and fall so that evidence can be preserved. It can also be helpful to take pictures that can be used as evidence of the dangerous condition.

In Redd v. Wilcohess, a North Carolina plaintiff argued that the trial court should have submitted the surveillance video of a slip and fall to the jury. She argued that N.C. Gen. Stat. § 1-181.2 applied to the case. This law requires that jurors who need to review a certain piece of evidence should be taken to the courtroom, and the court may permit the jury to reexamine the trial exhibit (such as surveillance footage) in open court. The court can allow a jury that asks to take the video into the jury room after the parties have a chance to be heard on the issue of bringing the video into the jury room.

The appellate court had previously provided the opinion that there was no error in the trial court not permitting the trial exhibit to be present in the jury room, since both parties hadn’t consented. The plaintiff moved to reconsider. The appellate court explained that in this case, at the end of the first day of jury deliberations, the foreperson had asked that the surveillance footage be shown to the jury. The court said it would do this in the morning.

However, the next morning, the attorney for the defendants wasn’t there in the morning, and the trial court sent the jury to deliberate further. The jury again asked to view the video. The court discussed this with the attorneys. However, before the trial court finished this hearing, the jury said they had reached a verdict and didn’t want to see the video. The foreperson told the court that they had deliberated further and didn’t need to see it.

The appellate court explained that the parties had conducted a long discussion during the hearing about how they would prefer for the jury to watch the surveillance footage. Since the jury withdrew its request, however, there was no basis to apply N.C. Gen.Stat. § 1-181.2, related to the viewing of the videotape by the jury.

If you were hurt in a slip and fall in a retail store, the experienced premises liability attorneys at Maurer Law may be able to help you recover compensation. Contact us at 704-243-9292 or via our online form.

Although it is a property owner’s responsibility to keep her premises safe, any “slip, trip, and fall” accident victim will tell you that this does not always happen. (For simplicity, we’ll refer to “slip, trip and fall accidents” as a catch-all for any accident in which you bust your tail on someone else’s property).

It is important that every individual looks out for herself and does what she can to prevent an accident from happening in the first place. No one wants to end up in the hospital with broken bones, internal bleeding, or head trauma.

How to Avoid Slip, Trip, and Fall Accidents:

Some of these prevention techniques may seem obvious, but you should never assume a property is 100 percent safe:

• Try to wear shoes that are slip-resistant. No shoe is ever going to be completely slip-resistant, but there is definitely a big difference between wearing slippery plastic flip-flops and solid, supportive sneakers with special slip-resistant soles. By wearing these shoes, you may be able to avoid a fall even when a spill hasn’t been cleaned up or a floor is freshly mopped.
• Be alert. This may seem like a no-brainer, but we see so many people out in public talking on their cell phones, exchanging text messages with friends, or being completely oblivious to their surroundings in general. Put the phone down and pay attention to what is going on around you.
• Slow down. People love to rush around and try to get a million things done in a short amount of time. Take a deep breath and take your time—going a little slower can play a major role in keeping you safe from slip and fall hazards.

If You’re Even Partially At Fault For Your Injuries, You May Not Have a Case

By taking time to stop and be aware, you can play an integral role in your own safety in situations that could otherwise result in a serious injury. No matter how seriously you may be injured, in North Carolina, if you are partially at fault (even 1%) for your fall, you can be completely barred from recovery. This is because of an old rule of law called “contributory negligence.” North Carolina is one of just four other states that still follows this harsh rule.

Even so, with the right facts and circumstances on your side, an attorney not afraid to take on a tough case may be able to find a creative “outside of the box” approach to a successful financial recovery for you.

If you were seriously injured in a slip, trip and fall accident in Raleigh, contact Maurer Law at 704-243-9292 for a free consultation. Although we are quite selective in the cases we take on, we might be able to help.