The Doctrine of Foreseeability: Auto Accidents & Accident Law

Posted by & filed under Auto Accidents.

An automobile accident can be a nightmare for all involved. However, when it happens out of the blue, you may have a significant worry, in addition to the pain and the medical bills: depending on the situation, if you are injured in a ‘freak’ accident, the defendant may wind up not being held liable as a result of the doctrine of foreseeability.

Foreseeability in Tort Law

Foreseeability is a core concept in tort law, especially in negligence. It generally speaks to the issue of proximate cause, which is one of the pillars that must be proven for a negligence case to be able to win in court. Proximate cause is defined as being the primary cause of an injury, even though it may not be the closest cause in time to the actual harm done to the plaintiff. The proximate cause of a plaintiff’s injury must be foreseeable. If it is not, the plaintiff cannot recover.

Common sense dictates that someone should not be held responsible for something they could not reasonably anticipate. In auto accidents, ‘reasonable’ events to anticipate might include someone running a stop sign, or wet weather affecting the grip of one’s tires on the road. Unforeseeable events would be more akin to, for example, lightning striking the road and cracking the pavement so cars are forced to swerve. In an extreme, something like that might come to someone’s mind, but legal foreseeability deals only with the extent to which something can be foreseen – that is, how far one can reasonably conjecture.

Subjective vs. Objective

In order to assess foreseeability in your case, you must ask two questions. Firstly, was the event in question – for example, a lightning strike in the middle of the road – foreseeable to the defendant? If it was, then you have a good case for establishing proximate cause. (If the event in question was foreseeable to the defendant, they ought to have taken steps to prevent it happening.)

If the event was not foreseeable to the defendant, you have to ask a second question – was it foreseeable to a reasonable person? If it was, the defendant may still be held liable, even if they did not personally foresee it. For example, if a defendant is texting and driving, they may not foresee an accident that stems from their not watching the road. However, an objective bystander would likely foresee that an accident was highly probable. Thus, the defendant could still be held liable. An unlikely risk is still foreseeable if there is any degree of likelihood.

The type of harm must also be foreseeable. If a pregnant woman trips while walking and lands on her backside, it is reasonable to assume she might suffer bruises or broken bones. It is not foreseeable that she might suffer a miscarriage. A general cause of action covering any and all manner of harm to a patient is simply not granted by the courts; the proverbial slippery slope toward universal liability would simply be too great.

Get Help In Your Auto Accident Case

If you or a loved one has been the victim of an auto accident, the car accident attorneys at Callihan & Syracuse can help. We have years of experience in accident law, and we work hard to get our clients what they are rightfully owed. Contact our North Charleston office today for a free consultation.

The Concept of Notice in Premises Liability

Posted by & filed under Premises Liability.

Premises liability is a difficult area of law to understand. One of the more complex ideas associated with premises liability is the idea of notice, and what exactly is owed to people on the premises, which ultimately depends on why they are there. This can be crucial to winning a claim, so it is important to understand how specific this kind of law can be.

Categories of Visitors

In South Carolina, visitors to another person’s property are grouped into four categories, as is similar to the case under common law. They are:

  • Adult invitee. The South Carolina courts define this status as a person who “enters onto the property of another by express or implied invitation,” and their entry is usually connected with the owner’s business or some activity the owner allows to happen on their land. There is a benefit to both the owner and invitee.
  • Adult licensee. The duty of an owner is far less to a licensee than it is to an invitee. South Carolina defines a licensee as someone who is permitted to be on the owner’s land by virtue of the owner’s consent and/or sufferance. The most common example of this category is a social guest – someone who has been invited onto the property specifically.
  • Adult trespasser. This status is fairly self-explanatory. A trespasser in South Carolina is someone who enters an owner’s land without permission.
  • Child trespassers. If children come onto property with permission, they are classified as invitees or licensees. If they are trespassing, however, they are still owed a duty by the landowner. Children are differentiated because they are held to lack capacity to make certain decisions, and thus may not appreciate the gravity of their actions.

The duty of a property owner remains the same in all cases: to ensure that a proper level of care is taken to keep the property reasonably safe for those who enter. However, the level of care required by law differs, depending what status a person has.

For example, an owner has a duty to an invitee that includes an exercise of reasonable care to make the land safe. However, they also must warn an invitee of any potential risks that they know of or should know of. That duty only applies to an invitee. Licensees must be protected by the owner, who has a duty to avoid from willful or wanton injury to them, but that is all. A property owner must not willfully injure a trespasser, but that is the only protection afforded to them.

Child Trespassers

While the duty of care owed to an adult depends almost entirely on their reason for being on the property, the reality is slightly different for children. Child trespassers can still hold a landowner liable for their injuries under the doctrine of attractive nuisance if the landowner does not properly warn of any dangers on the property. An attractive nuisance may lure children onto the property without their being apprised of the danger – in the past, disused construction sites or empty swimming pools have qualified as attractive nuisances, especially when no warning of any kind is posted.

Contact A Premises Liability Attorney

If you or a loved one has been injured due to a failure of warning, we can help. The attorneys at Callihan & Syracuse know the law around this complex issue, and we can put our knowledge to work for you. Contact our North Charleston office today for a consultation.

What To Do If Your Workers’ Compensation Claim Is Denied

Posted by & filed under Workers' Comp.

When you file a claim for workers’ compensation, you expect it to go smoothly, especially after research and careful planning. If your claim is denied, then, it may come as a complete surprise. There are some very common reasons, however, that seemingly routine claims are denied. Sometimes, they can be corrected. An attorney on your side can be invaluable in overcoming the bureaucracy.

Reasons For Denial

Claims are denied for many reasons, some more specious than others. A common denial regards the existence of a pre-existing condition: alleging that some condition the person already had caused the injury rather than whatever accident he or she suffered. It may be true that a pre-existing condition aggravated or exacerbated an injury, but you are still entitled to compensation for the worsening of your condition.

Another common reason is procedural: in South Carolina, a workers’ compensation claim must be filed within two years of the accident date, and an employer must be informed within ninety days of the accident (though immediately is better, if possible). If either of these deadlines are missed, you may lose your chance to apply for benefits. There are a few exceptions to these deadlines, but they are unusual. They are (1) if you were unable to inform anyone of your injuries due to physical or mental incapacity; or (2) if you were the victim of a third party’s fraud; for example, if someone told you he or she would file on your behalf and never did.

Overturning A Denial

If your claim is denied, you have the right to a hearing before the  South Carolina Workers’ Compensation Commission, where you will be able to present evidence to prove your claim.  Be advised that depending on the Commission’s docket, it may take 90 to 120 days from the date of filing to receive a hearing.

The hearing will unfold not unlike a standard court case in some respects; you will be able to present evidence as well as testimony in support of your version of events, while your employer (and your employer’s insurance carrier) will attempt to refute your statements. Documentation is critical; it is not uncommon for the commissioner to deny a claim based on what seems like vague inconsistencies. Having written documentation is the easiest way to back your claims.

If you lose your case at the commission level, further appeals are possible. You may appeal to the Commission as a whole, where your case is heard by either a three or six panel of Commissioners. After that, you have the right to file a lawsuit in the South Carolina Court of Appeals. One of the most common ground alleged is that the commissioner interpreted the law incorrectly. Some people may even file claims in the South Carolina Supreme Court (SCSC) if they fail at the appeals level, but the SCSC has the right to choose which cases it hears and which it does not.

An Attorney Can Help

Navigating the waters of workers’ compensation law can be tricky at the best of times. The workers’ compensation attorneys at  Callihan & Syracuse can help you get what you deserve. Contact us at our North Charleston office today for a consultation.

Personal Injury Terms, Decoded

Posted by & filed under Personal Injury.

The average person may want very little to do with the law, if possible. So, if they wind up in court, be it as a plaintiff or a defendant, sometimes the technical jargon used in legal documents can be rather confusing. It is important to understand exactly what is going on in order to ensure that your rights are protected in a personal injury case, and that you receive a fair settlement.

General Terms

While the terminology used in criminal law is an entirely different matter, you will see some of the same jargon used in almost every kind of civil lawsuit, regardless of the subject matter. Some of those common terms are:

  • Arbitration: an alternative method of dispute resolution. Sometimes, instead of sending a case to court, the parties may agree to have their dispute resolved by a neutral arbitrator. Allegedly, arbitration is cheaper and quicker.
  • Contingency fee: Instead of taking a fee up front, an attorney will very often agree to an arrangement where they will only be paid if they win the case. They do this for two reasons: often, a contingency fee is larger than the fee they would receive taken in a normal fashion, and sometimes personal injury clients are unable to afford a fee up front.
  • Discovery: The fact-finding period that goes on before a case officially goes to trial. It is during discovery that your attorney will build a case.
  • Finding: A proven, substantiated answer to a question posed by the lawsuit. For example, a judge may issue a finding of fact on whether or not a car ran a stop sign or not.
  • Motion, motion in limine: A written request to the Court or reply to the other party’s statement to the Court. A motion in limine is specifically a motion to exclude evidence that the attorney feels is irrelevant or prejudicial.
  • Punitive damages: Unlike actual damages, punitive damages are damages awarded for the purpose of teaching the defendant a lesson. In Florida, these damages are capped at three times the amount of actual damages, or $500,000, whichever is greater.
  • Statute of limitations: A law passed by a state or the federal government that restricts the amount of time in which a lawsuit can be filed. These are required because if they did not exist, claims could be tried decades later, when memories have decayed and evidence has been lost.
  • Summary judgment: When a judge declares a lawsuit decided in favor of one of the parties due to the law alone, without even getting into the facts of the case. This is done when the law is so clear that the facts would not change anything.
  • Tort: The rough civil equivalent of a criminal act. A tort is an act that causes an injury to someone else that may be punished by asking for money damages, instead of jail time.

Contact A Personal Injury Attorney

If you are in the middle of a legal proceeding and feel adrift, we can help. Contact Callihan & Syracuse for intelligent and understanding representation in all your personal injury matters. Our attorneys will do our best for you. We offer free consultations; call us today.

Defective Products: What You Should Know

Posted by & filed under Personal Injury.

You sometimes hear about products liability cases on the evening news whether it is exploding tires that cause rollover accidents or the McDonald’s coffee case.  However, product liability cases can be very complicated and technical.

Three Types of Suits

Product liability is a subset of tort law, and it involves the legal liability incurred by a manufacturer or seller for putting out defective merchandise. Consumers expect that the products they buy and use are safe – and when they are not, that is when product liability lawsuits arise.

There are three general types of product liability suits. They are (1) design defect, where a product is unreasonably dangerous as designed, even if used exactly as intended; (2) manufacturing defect, where a subset of a product’s run encountered problems and was thus manufactured in an incorrect and dangerous manner; and (3) failure to warn or marketing defect, where a manufacturer fails to warn the consumer of dangers inherent in their product even if used exactly as intended.

An example of a design defect case would be tobacco products – they are intended to be smoked and inhaled, yet they can be extremely dangerous. An example of a manufacturing defect case would be if a machine broke mid-production, and a small part of a product’s run was not put together properly. Both of these sorts of lawsuits can only be brought against a manufacturer, simply because a seller or trader has no input on manufacture or design of a product. By comparison, a failure to warn case  can be brought against manufacturer or seller – if a product has sharp blades, for example, a seller can be negligent by not warning a consumer of such dangers.

Strict Liability

Some states, South Carolina included, have adopted the Restatement of Torts 2d Sec. 402, which sets out the standard of strict product liability. Strict liability is when someone can be held liable for harm they have caused even without malice or intent.

To win a strict product liability case, a plaintiff must prove only that the product was defective, and that the product caused their injury. It is important to remember that even if the manufacturer and/or seller has exercised all the care they possibly could, if you can prove their product was the cause of your injury, they will nonetheless be liable.

There are only two real defenses to strict liability in South Carolina. One is for the defendant to argue that their product was modified from its original usage. The other is that the plaintiff misused the product. Both of them speak to foreseeability – that is, if a product is modified or used in an incorrect manner after it leaves the manufacturer’s hands, the way it is misused may not be foreseeable enough for the manufacturer to be liable for any harm.

Contact A Product Liability Attorney

When you have been injured, the last thing you want is to have to navigate legal red tape to get the compensation you need. Callihan & Syracuse can help. We are experienced in this type of litigation, and we will do our very best for you. Contact us for a free consultation today.

 

Premises Liability in South Carolina

Posted by & filed under Premises Liability.

Premises liability is the term that encompasses a landowner or tenant’s duty to individuals who come onto their property.  For store owners, this may mean cleaning up spills, monitoring the premises to make sure everything is safe, and warning and fixing any dangerous conditions. This type of liability may also extend to homeowners, landlords, and apartment/condominium owners that have obligations to their tenants, guests, and passers-by.

These types of cases can arise in construction areas where a passerby is injured by an unsafe, unprotected, or inadequately marked work area. Additionally, homeowners can be held responsible if they knew or should have known of a dangerous condition (broken stairs, exposed wires, cracks in floors, mold/ mildew, unstable railings, spills, leaks, etc.)on their property and failed to warn a tenant or guest of the danger.

South Carolina Law

In a civil action, the burden of proof rests on the person who is bringing the injury claim to prove by a preponderance of evidence that the landowner had a duty to maintain the property in a certain way or provide a warning, that they failed to do so, and that failure led to the injury. This standard means that the judge or jury finds it more likely than not (>50%) that the landowner was responsible for the injury. There are some exceptions to these duties including certain instances when someone has been granted permission to use the premises for recreational purposes, according to the South Carolina Code.

We Can Help

At Callihan & Syracuse, we understand how frustrating it is to be injured in a place you thought you could be safe. Our South Carolina premises liability attorneys will work with the many potential parties in the case, such as property owners/landlords, insurance companies, and opposing counsel, to fight for the compensation you deserve  for your injuries. Even relatively minor injuries can still have a significant impact on your life, family’s life, and financial well-being. More significant injuries may take you out of work for weeks, months, or indefinitely and we understand the catastrophic effect this can have on you and your family.

Regardless of the severity of your accident, you should speak with an attorney at the beginning of a your case to ensure that you understand what to expect.  Personal injury accidents such as ones arising out of premises liability are serious. No matter what your situation, do not hesitate to contact us to learn more about your legal rights.

 

One Bite Too Many: South Carolina Dog Bite Law

Posted by & filed under Personal Injury.

The majority of people love animals, and many of them own pets. When you own a pet, however, you are responsible for its actions. If your pet harms someone, you are liable for the damage they cause. The most common types of injuries we see caused by animals are caused by dogs.  There are specific laws that deal with responsibility for injuries caused by your animals.

What to do if You Are Bitten

If you have been bitten by a dog, you should call the police to report it and try to get as much information as you can about the dog’s owner such as name , address, phone number – not unlike you would with the driver of a car that hit yours. The Animal Control division of the police will most likely complete an investigation and report of the incident.

It is always best to seek medical attention for your injuries as soon as possible following a dog bite incident. Photographs are very important both to document your injuries as soon as they occur and all throughout the healing process and any resulting scars.

The Cause Of Action

Recovering for your injuries can be more difficult than for other types of injury claims.  Making a claim against a homeowner’s policy can produce a different set of challenges than recovering from an automobile policy after a car accident.

South Carolina, a dog owner is strictly liable for injuries caused by the dog, but there are some exceptions to this rule.  But that does not mean that dog bite cases are always straightforward or simple.

Contact A Personal Injury Attorney

If you have been the victim of a dog bite, our personal injury attorneys at Callihan & Syracuse can help. We will guide you through the process and fight to get you the compensation you deserve. Contact us for a free consultation.

Workers’ Compensation Okay For Kickball Injury

Posted by & filed under Workers' Comp.

Workers’ compensation tends to get a bad reputation from both employers and employees alike. Neither side tends to be satisfied with the benefits paid to an injured worker; however, it can be a lifesaver to the employee when they are injured in unforeseeable ways. Stephen Whigham, an employee of Jackson Dawson Communications, can testify to that. He was injured in a company kickball game, breaking two bones in his leg as he was trying to avoid being tagged out. The South Carolina Supreme Court held on Friday that Whigham was entitled to workers’ compensation, as he was required to attend the game as part of his ‘professional duties.’

Workers’ Compensation General Facts

Workers’ compensation is a system sponsored by state governments that will cover both medical expenses and lost wages for an employee who is injured on the job. In exchange for guaranteed compensation upon injury, the worker gives up the right to bring suit against their employer. The amount and type of benefits given will vary by state, but in South Carolina, a weekly check will be provided, at an approximate rate of 66 ⅔% of wages (taking an average from the previous four quarters before the injury). The Workers’ Compensation Act also provides that you can receive any ‘reasonable medical treatment intended to lessen your disability.’ This is not always the case; in other states there are many restrictions on what treatment will be covered by workers’ compensation.

The important thing to keep in mind is that workers’ compensation is designed to take care of employees who have been injured – without any fault being laid at the door of the employer. Negligence or other tort law does not come into the picture in a workers’ compensation case – there is simply a statutory authority that states that employers must cover on-the-job injuries.

Defining the Standard – Combating Fraud

Two justices on the Supreme Court did dissent on the Whigham ruling, stating that playing in the game was not part of his ‘professional duties,’ even if attending was. This attempt to strictly define the standard is likely trying to cut down on fraud. There is actually no agreed-upon method to identify the number of workers’ compensation fraud cases, as the parties differ on what constitutes fraud. However, the rate of fraud has been rising. South Carolina’s premiums for workers’ compensation insurance were among the lowest in the nation during the 1990s; by 2007 they had risen to approximately 25th. While the amount of claims being filed actually went down during that period, the rate of appeals rose – and it is on appeal that final decisions are made.

As of the most recent data, the amount spent on workers’ compensation by the nation’s employers was only around 1.6%, though some industries had higher claim rates than others – construction, for example, had 4.4% of its spending listed as workers’ compensation awards and insurance premiums, while the manufacturing industry only spent 1.8%. This is important to note, because even if massive fraud on a nationwide scale is alleged, the total amount spent on workers’ compensation claims (legitimate and illegitimate) is still a small fraction of employer spending as a whole.

Contact A Workers’ Compensation Attorney

Mr. Whigham will be able to support his family even while injured, thanks to a keen eye and talented representation. If you have been injured in an accident, and need help obtaining your rightful workers’ compensation, we may be able to assist. Contact Callihan & Syracuse today.

 

Pedaling Your Way to Safety

Posted by & filed under Auto Accidents.

Bicyclists all over the country are advocating for improving roadway safety. Local governments have added bicycle lanes in hopes of better accommodating those who prefer two wheels to four. A 2011 article in Charleston Magazine correctly speculated that biking was the up-and-coming mode of transportation in South Carolina. The South Carolina Department of Transportation has since initiated a “Bicycle and Pedestrian Program,” emphasizing safety for all modes of transportation, particularly for cyclists riding on busy roads. Further demonstrating the trend, Night Huron Park held its Annual Patriotic Bike Parade and Independence Festival on Independence Day, allowing bikers a safe place to pedal.

Despite significant efforts on the behalf of local governments, accidents do happen. When a pedestrian, bicyclist, or motorcyclist is involved in an accident without the protection of airbags or seatbelts, the result can be catastrophic. Recently, a vehicle hit and injured a cyclist in Greenville, SC. Bicyclists especially face dangers with their back against traffic and drivers who fail to share the road. The traffic laws in South Carolina aim to protect all individuals on the roadway, but violations of the law often result in serious injury.

South Carolina Bicycling Laws

Section 56-5-3430 states: “every bicyclists operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable.” The term “practicable” leaves much to be desired, particularly when drivers are often frustrated or unsure if they are permitted to pass a cyclist. These provisions also describe the “reasonable distance” that must exist between vehicles, vehicles and pedestrians, and vehicles and bicyclists.

When terms such as “practicable” and “reasonable” are used, it begs the question of what is considered “practicable” or “reasonable.” The answer is not black and white as it depends on the specific circumstances surrounding the particular situation. It is something that will ultimately be determined by a judge or a jury if a case goes to trial.

Another issue bicyclists and drivers face is simple unawareness of the laws are. There are specific laws explaining the differences between a cyclist in a bicycle lane and a bicycle simply on the roadway. Many organizations have taken toward advocating for improved driver’s education and spreading awareness to increase compliance. In South Carolina, for instance, the Palmetto Cycling Coalition has committed to “making South Carolina a bike friendly state.” Other local and national organizations advocate for similar objectives—hoping ultimately to spread awareness to make the roads a safer place for everyone.

Contact Us

Biking is a fun, healthy, convenient, environmentally-conscious mode of transportation that is becoming commonplace in our cities. More bikes on the road, however, increases the chance of accidents. If you or someone you know has been injured while riding your bicycle, you should contact a personal injury attorney to represent your interests.  Callihan & Syracuse will work hard to help you recover your losses, whether it be from medical bills, missing work, or permanent injuries from a driver’s negligence. Reach out to us today to discuss your case.

 

SC has Fourteenth Highest Teen Accident Death Rate

Posted by & filed under Auto Accidents.

Teen deaths occur due to other driver’s negligent actions more frequently than anyone would ever want to realize. Take 14-year-old Hannah Faith Bickley, for example.

Hannah was a backseat passenger in a vehicle involved in a fatal crash on July 31, 2014. The chilling coincidence that her brother, Brandon, 18, had died exactly nine years earlier to the day made the tragedy that much more difficult for family and loved ones to comprehend. The Bickley family had to cope with losing not one child, but two—both from catastrophic car accidents. Hannah was not even old enough to drive. She was certainly not responsible for what happened to her. So then who was?

Teen Accidents in the United States

According to the Centers for Disease Control and Prevention, 16,375 teenagers between the ages of 12-19 died annually between 1999-2006. Accidents remain the leading cause of death among teens. Two hundred and forty deaths involving teens 16-17 resulted from teen driving between January and June 2012. This number increased by 19% since 2011. In South Carolina specifically, the number of teen deaths in this same time period went from four in the first six months of 2011 to eight in the first six months of 2012. This places South Carolina with the fourteenth highest teen accident death rate in the nation.

Even when teens die in the passenger seat, there is always the possibility, and likelihood, that the driver was a teen also. While graduated license programs, such as the one enacted in South Carolina, prove to be helpful in reducing accidents involving teens, the statistics above prove that teens are not the only reason that other teens are dying on the road. Moreover, regardless of regulations for new drivers, teen drivers ages 16 to 19 are still three times more likely than drivers over 20 to be involved in a deadly car accident.

So Who is to Blame?

These statistics do not suggest that teenagers are responsible for the deaths of all other teenagers that perish on the road. Nor do they suggest that the finger can always be pointed to one specific person to be the person at fault in a fatal accident. It is, after all, called an accident. However, these statistics do exemplify the shocking truth behind teen deaths, behind the wheel or not. Who was driving, how old they were, and who caused the accident will not bring back the memory of the Bickleys’ children, nor any of the thousands of other teens who die in accidents each year. Such facts can, however, bring some peace to an unimaginable situation—an opportunity to figure out why this happened and to preserve the memory of loved ones.

Let us Help

If you have been injured or lost a loved one of any age in a car accident, let the experienced attorneys at Callihan & Syracuse help you navigate your legal rights during this difficult time. Our attorneys are dedicated to helping you understand your legal options and ensure you receive any compensation you deserve for your losses. We will guide you through this process so you can keep your focus on your family and moving forward.