Category: Personal Injury

Is Not Wearing a Seatbelt Considered Contributory Negligence?

Personal Injury

Is Not Wearing a Seatbelt Considered Contributory Negligence?

In North Carolina, it’s illegal to not wear a seat belt. Regardless of age, or whether you’re the driver or a passenger, everyone is required to wear a seat belt. We’ve all seen the ad campaigns and the “click it or ticket” slogan to encourage drivers to wear their seatbelts, and hopefully this isclose up seat belt in modern car a law that we all take very seriously. Seat belts save lives: they protect not just you, but other passengers in your car as well.

However, let’s say one day you forgot to put on your seatbelt. And while you were driving through an intersection, a car coming from the other direction runs the light and crashes into your car. Your car is damaged and you’ve sustained more injuries because you weren’t wearing a seat belt. The accident was in no way your fault. Apart from not wearing your seat belt, you were obeying the laws of the road. Would you still be able to claim insurance money? Or would your lack of seat belt be considered contributory negligence?

It is important to know that North Carolina rejects what is known as the “seatbelt defense.” A case in 1968 (Miller v. Miller) ruled that failure to wear a seat belt might mean that the amount paid out could be lessened because your injuries could have been less substantial had you been wearing a seat belt. Again, no matter what, please be safe on the roads, and buckle up.

Oxner + Permar encourages all drivers to wear a seatbelt. If you have any questions regarding what constitutes contributory negligence in the instance in which a driver is not wearing a seatbelt, be sure to contact an attorney.

What exactly is “Negligence Per Se”?

Personal Injury

What exactly is “Negligence Per Se”?

If you’ve been injured in a car accident, you may have heard the term “negligence per se” in regards to your case. Negligence per se is what is used to determine whether or not negligence directly resulted in your injury. This could include anything from texting while driving to speeding to reckless driving in hazardous weather conditions. In order to prove negligence per se you must be able to show that:

  • The plaintiff broke the law.
  • The law broken was written in order to prevent the type of injury you sustained.
  • You are the type of person the law was intended to protect.
  • Your injury is a direct result of the law being broken.

For instance, let’s say the defendant was texting while driving, which resulted in their drifting over the centerline and striking your car. If you broke your arm in the crash, it might be possible to prove negligence per se. This scenario fulfills all of these requirements.

First of all, the plaintiff broke the law by texting while driving. The second condition is fulfilled because the law against texting while driving is to prevent drivers from causing accidents because they are paying attention to their phone rather than the road. Third, other drivers fall under the category of people this law is designed to protect. And finally, breaking your arm in the crash is a direct result of their negligence.

It’s important to note that negligence per se can be used against you as the plaintiff as well. For example, if you were the one texting while driving when another vehicle struck you, they might be able to prove that your distraction was “contributory negligence.”  In other words, your texting hindered your ability to react to the situation effectively, putting you at some degree of fault.

If you have any questions about how negligence per se could affect your personal injury case, don’t hesitate to contact one of our experienced attorneys at Oxner +  Permar for a free 30-minute consultation.  

Seamon v. Remington Arms Company, llc

Personal Injury

In a closely watched case, a Federal Appeals Court has reversed a decision from a lower court, which threw out an expert’s opinion because the court said it was unreliable. The case, Seamon v. Remington Arms Company, LLC, is a tragic case surrounding the mysterious death of the plaintiff’s husband who was shot by his own Remington Model 700 rifle. The decedent, Mr. Seamon, went deer hunting and when he didn’t return, his family went looking for him and found him dead in his elevated tree stand with a single gunshot wound to his chest. Mr. Seamon’s Remington Model 700 rifle was found on the ground thirteen feet below attached to a rope that wrapped around the rifle’s scope and safety. The safety mechanism was off and there was a spent cartridge in the chamber, but there was no gunshot residue on Mr. Seamon’s body or clothing, leading law enforcement to conclude that the rifle was at least five to ten feet away from Mr. Seamon when it fired. Moreover, Mr. Seamon’s left hand was clenched around the front rail of the tree stand and his right hand was positioned as if he had been grasping something. The obvious question was how was Mr. Seamon shot?

Mrs. Seamon, the plaintiff, alleged that her husband died when the rifle accidently discharged because of defects with the trigger system. The Remington Model 700 contains the Walker fire control system, which is different than other trigger systems in that even a very slight movement of one of the parts allows the rifle to fire accidently. According to Ms. Seamon’s expert, Mr. Powell, rifles with Walker triggers have fired unexpectedly a number of times in testing reported by Remington Arms. According to Mr. Powell, little things like dirt, corrosion deposits, moisture, firing deposits and manufacturing residue can prevent the trigger parts from engaging correctly, making the rifle subject to unexpected firing. During testing, Mr. Powell found particles and deposits in the fire control housing, which he said have been show to cause interference in the Walker system and cause rifles to fire without interaction with the trigger. Mr. Powell concluded that the rifle might have gone off unexpectedly when it came into contact with the tree, rope or the ground.

The trial court struck Mr. Powell’s opinion as to why the Remington Model 700 discharged, because it said that his opinion was “speculative” and therefore, unreliable, and dismissed Ms. Seamon’s lawsuit against Remington. The 11th Circuit Court of Appeals reversed the trial court’s ruling and reinstated the case. The appellate court concluded that Mr. Powell had provided sufficient factual support for his opinion and that the trial court had “manifestly erred by mischaracterizing Powell’s opinion and the evidence supporting it . . . .”

Seamon v. Remington Arms Company, LLC demonstrates once again how complicated the law can be, and how important it is to have on your side experienced and knowledgeable legal representation like the lawyers at Oxner + Permar ,PLLC. If you find yourself with a complicated legal question, call us and take advantage of our decades of legal experience. You will be glad you did!

Nursing Home/Facility Negligence

Personal Injury

What should you do when a person you cherish is injured while in a hospital or nursing home and you believe the facility and its employees to be at fault?

If you suspect that your loved one has been the victim of below standard care, consider investigating the facility. Evidence of continual dehydration, bed sores or pressure sores, repeated falls, weight loss and complaints of pain can be signs of a problem. But you need intervention by a professional. Go to the Division of Health Service Regulation website, also known as the Division of Facilities Services, for our state where you will find information on how to file a complaint. As noted on their website, all claims should be filed within a year of the incident. They will evaluate and review the records of the hospital or nursing home and begin an investigation if they find it is necessary. Our law firm will also review your case for a potential claim and help determine next steps. Hospitals, nursing home and even home health care workers can be neglectful, have too many patients and not enough licensed, certified staff to care for each of them. We’ll work together to determine what can be done.

This article was written by Todd P. Oxner

Investigating Your Personal Injury Case

Personal Injury

I often wonder how much of a potential recovery is left on the table or never discovered by an injury victim. If you’re injured in a car accident and the driver of the other automobile was at fault, you can seek compensation from the at-fault driver’s insurance company. Most people understand that is the purpose of liability coverage. And the North Carolina legislature understands it, too, because they require liability coverage as a condition to drive in North Carolina. But what happens if you have significant injuries and that driver has only minimal liability coverage, which in North Carolina is $30,000? As the injured party, $30,000 may be your maximum reimbursement, no matter how seriously you’re hurt. But sometimes there’s more.

A thorough investigation of available automobile insurance coverages should include your own policy and policies of others. In one recent case, our client was told by her original attorney that she could, at the most, receive the North Carolina minimum limit of the negligent driver’s insurance policy. She came to us because she felt she deserved more, and frankly so did we. After a thorough evaluation and search, we did find her more . . . much more. Although this client had moved a number of times in the year prior to the collision, because she was living at her parents’ home at the time of the collision, she could argue for coverage from her parent’s underinsured motorist policy. After a battle with that insurance company, our client ultimately received over 200% more than the original attorney suggested she accept. She had no idea that this additional coverage was available to her. And why should she. Isn’t that our job as attorneys to advise her of her options?

When everything was settled, our client was thrilled that she had taken the time to get a second opinion from us. We did our job by maximizing the insurance coverage available to her. It was a long road to search and find all the options, but in the end, it was a great victory.

This article was written by Chip Permar