May 31, 2011

Loser Pays Legislation Signed Into Law In Texas

scales of justice.jpgTexas Governor Rick Perry signed into law a measure that will further limit the filing of frivolous lawsuits by making the party who filed the lawsuit pay the other party's court costs. Under the loser pays model, if the party filing the lawsuit, usually referred to as the "plaintiff," loses the case, then the defendant can ask the judge make the plaintiff pay the defendant's court costs. Likewise, if the plaintiff wins the case, then the plaintiff can make the defendant pay their court costs. Court costs often run into the thousands and tens of thousands of dollars in bigger cases.

Most lawyers would agree that a fair definition of a "frivolous lawsuit" is one that has absolutely no merit and would eventually either be dismissed by the judge or ruled against by a jury.

North Carolina has long followed a form of the "loser pays" model of limiting frivolous lawsuits. In North Carolina, a defendant can file what is called an "offer of judgment," offering to pay the plaintiff an amount the defendant believes is reasonable, and if the plaintiff fails to accept the offer of judgment and goes forward to trial and recovers an amount that is less than the offer of judgment, then the defendant can ask the judge to make the plaintiff pay all of the defendant's court costs.

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April 6, 2011

Consumer Reports Finds Young Adults Texting While Driving

texting-while-driving.jpgA sobering study by Consumer Reports regarding mobile device use for drivers under the age of 30 recently found that of those surveyed:

63% used a cell phone while driving in the last 30 days;

30% texted while driving in the past 30 days;

Only 36 % were very concerned with distracted driving;

Only 30% thought using a cell phone while driving was very dangerous; and

58% saw a dangerous situation because of distracted driving in the last 30 days.

Consumer Reports released this data just as it is beginning a joint public services campaign with the U.S. Department of Transportation (DOT). The campaign aims to bring awareness of the dangers of distracted driving to young people.

According to the National Highway Transportation Safety Administration, distracted driving injured almost half a million people in 2009, and killed nearly 5,500. The Virginia Tech Transportation Institute found that dialing a phone makes it six times more likely to get into an accident, while texting while driving multiplies the chance of an accident by 23.

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February 21, 2011

North Carolina Moves Forward To Ban Cell Phones While Driving

cell phones prohibited.jpgWith the epidemic of texting while driving causing more and more serious crashes, injuries and deaths, the North Carolina Legislature is taking up the issue of a total ban of cell phones while driving a motor vehicle. North Carolina Lawyers Weekly covered the story this week.

Representatives Garland Pierce, D-Hoke, and Charles Graham, D-Robeson, filed the bill to ban cell phone use while driving on February 2, 2011. The bill is known as H. 31 and is titled, "An act to make using a mobile phone unlawful while driving a motor vehicle on a public street or highway or public vehicular area." The bill is currently in the House Rules Committee.

The bill basically bans any use of a cell phone, even via blue tooth hands-free technology, while one is operating a motor vehicle. This ban would include school bus drivers. The only exception under the new bill would be in the case of an emergency.

The penalty for violating the proposed new law would be a $100 fine and no insurance points.

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January 30, 2011

Teen Texting While Driving Continues Despite Deaths & Laws

With public attention focused on decreasing the use of cell phones in cars, by both teenage drivers and adults as well, data from the most recent studies indicate the danger continues to grow. The number of serious crashes and deaths caused by distracted driving certainly continues to increase. While almost every state has passed laws that make it illegal to send or receive text and/or email messages while driving, these laws have proved ineffective at stopping the dangerous behavior. The latest numbers show that almost 6000 people are dying each year from car crashes caused by distracted driving.

There are two basic problems with the current approach, first enforcement is difficult for police officers because it is not illegal to dial a cellphone while driving, so identifying someone who is actually texting while driving is all but impossible unless the officer observes a driver weaving all over the road, then pulls the driver over, asks them if they were texting or emailing, and the driver actually admits to the illegal activity. According to court records reviewed by the Associated Press, this process has resulted in approximately 1200 people receiving tickets under the "texting ban" in North Carolina since the law went into effect in December of 2009. The second problem is that many drivers fail to appreciate the deadly danger.

Studies that have interviewed teens and adults find that most people who text while driving feel that they can text and also drive safely. They feel that they can look away from the road and still keep their car under control. This is a naive attitude at best. As this author has asserted in prior posts, education is the key to solving his social epidemic.

The Distracted Driving Safety Alliance (DDSA) is taking steps to gather and educate individuals and organizations from all across society to find ways to curb all behaviors that distract teens and adults alike. Educating all drivers about the "best practices" for driving is something the the DDSA is trying to accomplish. Here are the DDSA's best practices for new drivers:

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January 7, 2011

Texting While Driving Claims Another North Carolina Teen's Life

chocowinity-teen-killed-in-accident.jpgAnother North Carolina teenager has tragically died as a result of texting while driving. WITN news just reported that yesterday afternoon at 3:42pm, Sarah Edwards appears to have glanced down at her cell phone to read a text message. That distraction caused her Honda Accord to drift across the yellow line into the on-coming lane where it struck the rear tandems of a tractor-trailer logging truck. She died instantly. The collision occurred on Chandler Road in Beaufort County. Her cell phone records show that she read a text message one minute before the first of several 911 calls were placed reporting the collision.

Ms. Edwards, 18 of Chocowinity, was a senior at Southside High School in Washington. Her funeral is this Saturday at 11 a.m. at Pamlico Memorial Gardens in Washington.

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December 22, 2010

Last Minute Christmas Shopping Tips & Ideas

Christmas Shopping.jpgFor those of you like me who still have some, or all, or your Christmas shopping to do, here are a few tips and ideas that should help you 'git er done' before jolly Ole St. Nick takes to the air.

First, last minute shopping requires a certain mindset or philosophy: understand going in that you are likely to encounter crowds and potentially long lines. If you accept this from the beginning and anticipate it, you are less likely to become frustrated and upset. If you find yourself stuck in a long line, rather than digging out your smart phone and sending a text message, try striking up a friendly conversation with someone standing near you. This will help pass the time, and you might actually make a new friend. If you're uptight, meditate before you go out into the crowds, and then, once there, remember to breathe.

If you don't know what to buy, try putting together a homemade gift basket. You can buy a simple basket at any major department store and then fill it with all kinds of small gifts and treats! Fancy coffees, imported chocolates, earrings, DVDs and lots of other fun gifts can be used to fill up your gift basket.

If you're low on cash, how about giving the gift of yourself! Such gifts are both personal and easy to execute on a deadline. Take a few minutes and create some colorful "coupons" for services you can provide in the weeks after the holiday season. Some good ideas include coupons for an amazing multi-course meal, yard work services, pet-care services, romantic massages, car repairs, painting and other handyman services around the house.

Finally, if you are shopping in the final days leading up to Christmas, the crowds can get quite large, but if you do your shopping during the daytime, the crowds will be smaller than at night. If you are heading out into the big crowds, be sure to leave unnecessary credit cards and cash at home, as pick-pockets can prey on busy last minute shoppers. Happy shopping and Merry Christmas from Davis Law Group!


December 13, 2010

How To Avoid A Truck Accident In Asheville

truck accident avoid.jpgWith over 5,000 people dying in truck crashes each year on our nation's highways, it is important for every driver to understand all of the ways to avoid being involved in such a collision.

1. Stay Out Of The Truck's Blind Spots - If you are sharing the road with a commercial motor vehicle such as a tractor-trailer, either trail behind the truck at a safe distance or pass it quickly. Do not ride along beside the truck! Most crashes between cars and trucks occur when a truck changes lanes and collides with a passenger vehicle. Don't get caught in the blind spot.

2. Leave Yourself An Escape Zone - When passing a tractor-trailer, you should always plan on the truck coming over on you in your lane. If you plan for such an emergency, then you will be prepared in the event it happens and have a plan for what to do. The most important thing to plan for is where to move your car. For example, if you are passing a large truck on an interstate highway, do not attempt to pass while you are crossing a bridge. Why? Because there is no where to move your vehicle in the event a truck comes over into your lane. Instead, wait until you have an open stretch of highway with a wide shoulder before you start your passing maneuver.

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December 8, 2010

Chewing Tobacco Lawsuit Nets $5 Million In 1st Ever Settlement

Big Tobacco recently paid $5 Million to settle a wrongful death claim to the Estate of Bobby Hill. A resident of Canton, North Carolina, Hill died from mouth cancer in 2003 at the young age of 42. He had been dipping since age 13. Altria makes and sells Skoal and Copenhagen. This is the first settlement of its kind in the smokeless tobacco arena.

Many familiar with the cigarette litigation say that this settlement will cause plaintiff's lawyers to start filing more cases against the smokeless tobacco giant. Hill dipped tobacco made and sold by U.S. Smokeless Tobacco Co -- which Altria acquired in 2009. The deal was struck before the acquisition. A spokesperson for Altria says this was a special situation, honoring the prior deal, and the tobacco giant does not plan to settle any other pending cases.

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November 28, 2010

Car Strikes And Kills Female Cyclist In Asheville

bike crash.jpgFriday evening, around 6:30pm, a car driven by Patricia Harvey, 48, struck a bicyclist from behind causing a tragic crash on Piney Mountain Drive off of Chungs Cove Road in east Asheville. Police have indicated that the cyclist, Tami Rene Leaven, 35, died at the scene from massive head injuries.

Police say that Leaven did not have any lights on her bike, although the law does not require a bicyclist to have a light on the rear of a bicycle - only a reflector that can be seen from 200 feet behind. Most bicycles are sold with a reflector that satisfies state law in this regard. Police have not said whether the bike ridden by Leaven had the required reflector. A police spokesperson said that the area where the collision happened on Piney Mountain Drive was a dark section of road and not well lit.

In North Carolina, the law requires motorists to see what can be seen and to keep a proper lookout. It is unclear at this time whether Leaven was visible to motorists approaching from behind or not. If the bicycle she was riding did not have the required reflector, then Harvey may not have seen her in time to avoid the collision. If the bike did have a reflector visible from the rear, then the question will be 'why did Harvey fail to see it?' These are questions the District Attorney's Office must grapple with, and the DA will have to decide whether the facts justify bringing criminal charges against Harvey.

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November 21, 2010

FDA Targets High Engergy Alcohol Drinks As Being Dangerous

drinklineup.jpgThe Food and Drug Administration (FDA) issued warning letters to four manufacturers of caffeinated alcoholic drinks, directing them to stop adding caffeine to the popular drinks within 15 days or face stop selling them altogether.

FDA warned four companies that the caffeine added to their alcoholic malt beverages is an "unsafe food additive" and said that further action, including seizure of their products, is possible under federal law. Warning letters were issued to the following companies:

Charge Beverages Corp.: Core High Gravity HG Green, Core High Gravity HG Orange, and Lemon Lime Core Spiked

New Century Brewing Co., LLC: Moonshot

Phusion Projects, LLC (doing business as Drink Four Brewing Co.): Four Loko

United Brands Company Inc.: Joose and Max

The FDA Commissioner, Dr. Margaret Hamburg, asserted that the drinks appeared to pose a serious public health threat because the caffeine masked the effects of the alcohol, leading to "a state of wide-awake drunk." The drinks at issue are carbonated malt beverages with fruit flavors and very high levels of alcohol; Four Loko is 12 percent alcohol by volume and has up to 156 milligrams of caffeine per can. The effect of consuming alcohol and caffeine is that people get more intoxicated and engage in more dangerous behavior when they drink the combination beverages than when they drink alcohol alone.

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November 14, 2010

Robbinsville Pit Bull Attack - Who's Responsible? Dogs, Owner or Town?

pit-bull-attack1.jpgPeople are rarely attacked by vicious dogs, but when those attacks happen to young children or the elderly they can be deadly. Particular breeds, like pit bulls, Rottweilers, Akitas and German shepherds are publicized as being more aggressive and dangerous than other breeds. While that is probably true, there is no question that pit bulls have been bred to be aggressive and strong.

A two year old Robbinsville boy remains in critical condition after being attacked and mauled by as many as 6 pit bulls that lived at the child's grandmother's home. The Asheville Citizen Times reported that the incident took place around 3:15pm last Saturday at a house on North Main Street across from the Robbinsville Elementary School. Neighbors and teachers at the school reported having seen the dogs running lose in town.

Someone at the school had complained to Town officials recently when he saw the dogs running down the sidewalk after a couple of kids on bikes. In the rural town, no leash law existed to prohibit a dog owner from allowing their dog to run loose. Approximately one week prior to the attack, the Robbinsville Town Council had considered passing a leash law but failed to do so. The mayor pro tem, Bobby Smith, admitted to feeling guilty that they did not already have such a law. A simple leash law might have prevented this tragedy.

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November 11, 2010

Education Is The Key To Stopping North Carolina Teens From Distracted Driving

distracted driving.jpgDistracted driving is killing teenagers at an alarming rate. The National Traffic Highway Safety Administration (NHTSA) has been on a rampage against distracted driving by teens for more than a year, but studies show that distracted driving by teens continues despite teenagers' knowledge of its dangers. Last month, teenage drivers nationwide pledged to take two seconds to turn off their cell phones and other wireless devices before driving a motor vehicle. These pledges were part of a National Two-Second Turnoff Day sponsored by AAA, Seventeen and the US Department of Transportation. A recent survey by AAA and the popular teen magazine Seventeen showed that nearly 9 our of 10 teen drivers have driven while distracted, even though almost 85% of them know its dangerous.

The key to stopping distracted driving is not telling teen drivers how dangerous it is, that is just preaching to the choir. They all know how dangerous it is, but they do not think anything bad could happen to them. Education on this topic must involve and engage teenagers. The below video is a great place to start this education:

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November 6, 2010

War Hero Dies After Being Hit By Asheville Bus

Asheville Bus Hit Pedestrian.jpgAfter traveling all over the world and serving his country in three wars, David Stroupe, 86 of Leicester, died Friday while still being treated for injuries he received after being struck by an Asheville Transit Authority bus. The bus collided with Stroupe in the Westgate parking lot outside of Earth Fare.

An eyewitness, Karess Walker, of Asheville told authorities that Stroupe "was just coming out of the corner and he just stopped in the middle of the road." From her view, Walker felt that Stroupe "must have assumed the bus was going to stop. But it kept on going, and I was like, 'Oh my gosh, please don't hit the man.' I thought he was going to stop right before it got to the man. But he just ran him right over."

Stroupe suffered a head injury and a foot injury in the incident. When the bus finally stopped, it landed on Stroupe's foot. EMS transported Stroupe to Memorial Mission for emergency treatment.

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October 22, 2010

Former President Bill Clinton Stumps For Shuler in Asheville

Clinton 1.JPGOn a cloudless Thursday afternoon in downtown Asheville, thousands waited patiently as former President Bill Clinton made his way to the podium to pump up the crowd and western North Carolina for incumbent Senator Heath Shuler. We arrived in Pack Square Park around 11am after having stood in line for approximately 30 minutes. The day before, I had been handed a VIP ticket outside the early voting center downtown. Little did I know then that I would have a 4th row seat to Clinton's speech.

Clinton was awesome in person. Having always likely his casual, commonsense demeanor, I was impressed by his in person persona as he entertained the crowd with hilarious anecdotes ("I couldn't make this up...") from his past while also making a strong case in support of Shuler. Clinton told the crowd that "Shuler is the only real choice voters have" if they want to create jobs and knock down the country's runaway debt.

Clinton repeatedly said that "it's important to America" and North Carolina that Shuler, D-Waynesville, return to Washington. Shuler faces stiff competition for his Senate seat from Republican challenger Jeff Miller, a Hendersonville business owner, in the Nov. 2 election.

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October 18, 2010

2010 North Carolina Judicial Races - How To Vote

Asheville courthouse.jpgJudicial elections are extremely important. The decisions that judges make directly impact the lives of many people. This is particularly true if you happen to be one of the almost 3 million people who happen to have a case in the North Carolina court system each year. This means that many voters will look a judge in the eye at some point, whether in the context of divorce, child custody, child support, civil suit (personal injury, property dispute) or even the penalty side of misdemeanors (traffic) or criminal charges. In many cases, the judge decides who wins and who loses. In all cases, the judge can have an impact on how the case is decided. Therefore, who gets elected as judge may directly affect your life.

Since the North Carolina Legislature decided that judicial races are to be non-partisan, it is hard to know who to vote for, unless you personally know the person who's running for judge. If you do not know the candidate, and you do not know what party (Republican, Democrat or other) they belong to, how can you intelligently cast your vote? The best way is to ask a lawyer who has experience in the courtroom trying cases before the judge.

Here is how I plan to vote in the judicial elections based upon my personal knowledge of the candidates, their legal experience, and their known or perceived judicial temperament. Please print this list and take it with you when you vote:

NC Supreme Court
Judge Robert C. "Bob" Hunter (Brady seat)

NC Court of Appeals
Judge Rick Elmore (incumbent)
Judge Martha Geer (incumbent)
Judge Jane Gray (Calabria seat)
Judge Sanford Steelman (incumbent; unopposed)

NC Court of Appeals (Wynn seat - 13 candidate "instant runoff" race)
#1 choice - Judge Cressie Thigpen
#2 choice - Stan Hammer
#3 choice - Harry Payne

Buncombe County:

Superior Court (seat No. 1)
Alan Thornburg: thornburgforjudge.com

Superior Court (seat No. 2, instant runoff)
Heather Whitaker Goldstein: heatherforsuperiorcourtjudge.com

District Court (Barrett seat)
Sharon Barrett: N/A

District Court (Brown seat)
Shirley Brown: judgeshirleybrown.com

District Court (Cash seat)
Julie Kepple: julieforjudgecampaign.com

District Court (Knight seat)
Rebecca Knight: N/A

District Court (Young seat)
Patricia Kaufmann Young: re-electjudgeyoung.com