Recently in punitive damages Category

October 14, 2010

Safety Violations Caused Young Mother's Death in Pitt County Flatbed Trailer Crash

trailer safety violation.jpgEarly Tuesday afternoon, John David Ross, 29, of 2909 Royce Lane, near Winterville, drove his roofing crew toward a job site on northbound NC Highway 43. Behind Ross' Chevrolet pick-up truck was a home-made flatbed trailer loaded with shingles and other roofing materials. The investigating State Trooper said that the trailer lacked proper safety devices required by state law, such as a properly sized hitch pin and safety chains connecting the trailer to the truck.

As Ross' truck and trailer crested a short hill, the trailer suddenly detached from the truck and veered into the oncoming lane. Tragically, Lisa Langemann, 27, of 2005 Wallace Lane and her two young daughters were headed southbound in their SUV on NC Highway 43 at the same time. Langemann must have seen the trailer coming because witnesses say the SUV swerved to the right to try and avoid the collision, but the out of control trailer struck the SUV head-on. After the sudden impact, the SUV hit a ditch and flipped over.

Langemann died at the scene. Her 8 year old daughter is listed in serious condition at Pitt Memorial Hospital, and her one month old daughter was treated and released. Her family is devastated by her loss. Langemann was a second grade teacher at Bethel Elementary School in Pitt County. She was in her third year of teaching at the school. The teachers, administrators and students were shocked when they learned of the wreck.

Langemann's family could pursue a wrongful death claim against Ross and his roofing company. Given the type of safety violations that caused this crash, pursuing such a case could help provide for the care and upbringing of her two young children. While financial compensation could never bring back this wonderful teacher and mother, it might make a difference in her childrens' lives. While Ross certainly feels terrible about what happened, he is still legally responsible for the outcome.

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September 30, 2010

Westville Pub Attack Creates Civil Liability

Tuesday night, a Candler woman, Jessica Renee Hall, 32, of Reeves Cove Road, crashed her SUV into the barriers separating the outdoor patio from the parking lot at the Westville Pub in West Asheville. Hall intentionally rammed her vehicle into the huge metal radiators that create a wall beside the patio where patrons often enjoy their food and beverages.

Witnesses say that Hall backed her SUV up approximately 20 feet from the patio, then jammed the vehicle in drive and then accelerated toward Amy Nicole Roberts and several others on the patio. The collision pinned Roberts under the radiators and the front of the SUV, causing serious injuries to her left leg. Hall then backed the SUV up, screamed out the vehicle's window, "that's what you get for f+++++g with me, b+++h!" and fled the scene. A witness ran after the SUV and got the license tag number and called 911. Police later contacted Hall at her home, and she was subsequently arrested and charged with felony assault with a deadly weapon inflicting serious injury. She is out of jail on a $9,000 bond. The motive for the assault appears to be that Ms. Roberts was friends with Hall's ex-husband.

Ms. Roberts is still in the hospital receiving treatment for her mangled left leg. Doctors are hopeful that she will recover to the point that she can use the leg again, but there is still a possibility that she might have to have the leg amputated. Doctors expect that she will need multiple surgeries to address the severity of her injuries.

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September 26, 2010

Former Crew Chief Kohuth Cops Plea Deal

Nascar crew chief.jpgFormer Nascar Ultra Motorsports pit crew chief, Timothy Kohuth, 49, pleaded guilty to 2nd Degree Murder last week in Iredell County Superior Court. As a result, he will spend at least the next 9 years in jail. The maximum he could serve is 12 years. The plea deal arises out of the fatal crash Kohuth caused in 2008.

On July 31, 2008, Kohuth drank to the point he was severely intoxicated and then drove a rollback wrecker on Brawley School Road, crossed the center line, and then collided with a vehicle driven by Wesley Worden. The head-on impact killed Mr. Worden instantly and severely injured his wife, Gail.

At the plea deal hearing in court, District Attorney Sarah Kirkman said, "Witnesses said he got out of the truck and a 24-ounce beer fell out of his lap." After the crash, EMS took Kohuth to the hospital, but he refused to take either a breath or blood test to determine the amount of alcohol in his blood. State Troopers sought and obtained a search warrant and forced Kohuth to submit to a blood test. Approximately six hours after the fatal crash and after receiving a substantial amount of IV fluids, the test showed Kohuth's blood alcohol level to be .08, the legal limit in North Carolina.

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June 27, 2010

"Do As I Say & Not As I Do" - Adults Are Texting & Driving Too

texting while driving adult.jpgA new national study by the Pew Research Center finds that adults are just as likely to have sent text messages while driving as teenagers, and adults are much more likely to have talked on their cell phone while driving when compared to teenagers.

While much attention has recently been focused on teen texting while driving due to several fatal crashes, it appears that adults are just as deserving of similar attention and education. The study's statistics are startling, and it makes this author think that we adults need to look in the mirror before we are so quick to judge our teenagers.

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June 26, 2010

Two Critically Injured In Claremont Motorcycle Crash

motorcycle crash near Claremont.jpgOn Thursday morning around 9:50 a.m., a motorcycle driven by Bruce Offenbacker, age 24, rocketed down NC Highway 10 at over 100 mph. On the back of the motorcycle was Offenbacker's 20 year old girlfriend, Jasmine Shope of Newton.

As the motorcycle approached the intersection of Bethany Church Road, Isaiah Edgell, 44, was stopped in his 1989 Mazda pickup truck facing west on NC Highway 10, waiting to make a left hand turn into the Country Market. Iredell County Trooper C.M. Trouille just happened to be sitting in his marked State Highway Patrol vehicle behind the stopped pickup truck. When the pickup truck began to make its left hand turn, the motorcycle collided with the passenger side of the pickup truck at a high speed and with substantial force. Trooper Truoille stated he never even saw the motorcycle before impact. This crash was orignally covered by the Hickory Daily Record. The following video is a good example of how this crash happened:

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April 15, 2010

Boy Scouts Of America Found Liable In Sex Abuse Case

Boy Scout Emblem.jpgAfter 3 weeks of trial and two days of deliberations, a Portland jury returned a $1.4 Million verdict finding the Boys Scouts of America liable for negligently allowing a confessed child abuser to continue having contact with other Boy Scouts, including the man who brought the lawsuit. The assistant Scout master had admitted to abusing 17 out of 30 young boys in his troop.

During the case, the victim's attorneys were able to introduce evidence from the Scout's own "Perversion Files" which contained information the Scouts had gathered about its leaders who had sexually abused young boys in the Scouts. The jury, during its deliberations, were able to review approximately 1000 of the Perversion Files. Not only did the jury find the local chapter liable for allowing the abuse to continue, but it also found the national Scout organization, based out of Texas, liable for punitive damages. The jury did not decide the amount of punitive damages owed. Punitive damages are designed to punish a defendant and to deter it and others from committing similar wrongful acts in the future.

This $1.4 Million verdict is only the first phase of the trial, in that the case will resume on April 20, 2010 to begin the punitive damages portion of the trial. In many civil trials where punitive damages are alleged by the victim, the defense attorneys will ask the court to bifurcate the trial into two phases, a compensatory damages phase and a separate punitive damages phase. This tactic keeps the jury from hearing some of the most egregious evidence until after it has decided the amount owed for compensatory damages. Once a jury finds a defendant is liable for punitive damages, settlement negotiations often ensue as most defendants do not want to risk a huge punitive award.

The Boy Scouts have vowed an appeal, but, in my humble legal opinion, their chances of getting the verdict overturned are slim, unless the appellate court finds that the statute of limitations has already run.

At Davis Law Group, we have compassionately represented many individuals who have suffered abuse by those in whom their trust was misplaced. We have successfully argued that statutes of limitations have been tolled (suspended) due to the psychological nature of the injuries inflicted and the defendant's horrifically egregious conduct. If you or a loved one feel that you have a claim for sexual abuse, contact an experienced sexual abuse attorney to discuss your case and legal options.

April 5, 2010

Boy Scout's President Blames Parents

boy scouts.1.jpgIn the highly publicized lawsuit against the Boy Scouts of America, a local Scout executive has testified that he believes the parents of the abused scouts are to blame. The AP wire service reported that Eugene Grant, President of the Portland metro area Scout's Council, testified he thinks that the parents of the boys who were abused were negligent and even criminally responsible for the abuse by allowing their sons to attend sleepovers at a former scout master's home. Grant told the jury that the parents should have known better than to allow their sons to spend the night in a single man's apartment. He also testified that the Scouts did not have a policy prohibiting unauthorized sleepovers in the 1980s. Grant told the jury that he does not think the Cascade Pacific Council is responsible for any of the abuse.

It amazes me that a leader of this organization can cast stones at the victims' parents and at the same time deny that the Boy Scouts are in any way responsible for what happened to these children. If Grant thinks that the parents were negligent for allowing their young boys to spend the night at the defendant's apartment, how can he deny that the Boy Scout Council was negligent when the council was aware of allegations of abuse by this scout master and yet continued to send these same boys into the woods with this pedophile for overnight camping and hiking? Who was in a better position to suspect abuse? Parents who had no knowledge of any abuse allegations or the Scout Council who had received complaints of abuse?

As I mentioned in my earlier post on this case, the court has ruled that the victim's lawyers can use the Boy Scout's secret files, known as "the Perversion Files," to try and prove a pattern by Scout officials of ignoring suspected abuse or allowing pedophiles to return to their leadership roles. Such evidence would be compelling and might well lead to a substantial punitive damages verdict against the Scout organization. Most other lawsuits filed against the Scouts for sexual abuse have settled out of court.

So far, since the jury trial began on March 17, the victim's lawyer has opened up six large boxes filled with over 20,000 pages of files the Boy Scouts of America maintained on over 1,000 national volunteers who sexually abused boys between 1965 and 1984. The victim's lawyers have not shown the jury a file connected to the defendant in this case, but I would not be surprised if that file is the last one introduced into evidence. That would be a strong way to end the case.

At Davis Law Group, we believe that all organizations that take on the responsibility of caring for and supervising children have a duty to protect those children from abusers. This seems like a very common sense concept, yet there are still dozens of youth organizations that have not adopted any policies about how to make sure abuse does not happen within their organization. Failing to adopt such anti-abuse policies can lead to abuse. If you are a parent whose child or children belong to youth organizations, whether in church, school or athletics, you should ask the leaders of those organizations about their policies for preventing sexual abuse. If they have no policies, then you should decline to have your child involved in that organization. To learn more about child sexual abuse prevention, visit Darkness to Light.

March 31, 2010

Charlotte Truck Driver Charged With Reckless Homicide In KY Crash

truck crash in KY.jpgA Charlotte tractor-trailer driver, Arthur A. Davis, 44, has been charged with 2 counts of reckless homicide arising out of a crash that he caused on Tuesday morning in Kentucky at the intersection of US Hwy 460 and Kentucky State Road 1499. Authorities in Pike County, Kentucky are holding Davis under a $2 Million bond. In addition to the homicide charges, Davis faces charges that he had No Operators License, No Commercial Motor Vehicle License, a Driver's Daily Log that was Not Up To Date, and a Radar Detector In A Commercial Motor Vehicle. These are all serious violations of the Federal Motor Carrier Safety Regulations.

Seven minutes prior to the truck crash, several other truck drivers heard Davis asking on his CB radio if there were any big hills in the area because his brakes were not working well. At the time of the wreck, the truck driver was hauling several mini-excavators and other heavy equipment. As Davis went down a steep hill, he lost control of his big rig, swerved to avoid hitting a building, and struck 2 men who were part of a tree trimming crew. Both pedestrians were killed by the run-a-way truck.

Investigators found that the reckless truck driver had 10 different brakes on his vehicle, but 5 out of the 10 brakes were not working at all, and 2 of the remainder were not working properly. To operate a commercial motor vehicle when one knows that the truck's brakes are not working correctly is reprehensible, and this truck driver should go to jail for a long time for his grossly negligent and recklessly indifferent conduct. If this truck driver was driving for a company, then the company's management should also face criminal charges for their complicity in failing to keep this driver off the road. In several similar truck cases we have handled, we have been successful in convincing the US Attorney's Office to pursue criminal charges against the management of the truck company. That should happen in this case.

This is a pure tragedy because this wreck was totally preventable. Truck drivers and the companies they haul for are required to inspect the brakes on a tractor trailer before the start of each trip. If there is a problem with the brakes, then the trucker is not supposed to start the trip. The repairs are supposed to be completed first. End of story. But unfortunately, some truck companies force their drivers to operate unsafe tractor trailers because in many instances, the truck company's philosophy is "profits over safety." In the industry, these are known as "forced trips," because the company tells the driver to either drive the truck as it is or lose their job. This philosophy is one of the reasons why there are so many unnecessary truck crashes.

The Association of Plaintiffs Interstate Truck Lawyers of America (APITLA) has, as its goal, to eliminate unsafe and illegal interstate trucking practices. If you or a loved one have been seriously injured in a collision with a tractor-trailer, then you should immediately consult with an experienced interstate truck lawyer. Attorney Brian Davis is a National Advisory Board Member of APITLA.

March 28, 2010

Big Verdict Against DuPont Could Impact Asheville CTS Site

DuPont Logo.jpgLast Friday, the West Virginia Supreme Court of Appeals upheld most of a $381 Million verdict entered against DuPont by a West Virginia state court jury. DuPont, Co., the world's third largest chemical company, was found liable for damages caused by a waste pile DuPont created at a zinc-smelting plant in Spelter, West Virginia.

The Harrison County jury found that DuPont negligently created a 60-acre pile that contained arsenic, cadmium and lead. As a result of the verdict, DuPont had to pay $55.5 million to remove potentially hazardous soil and dust from surrounding homes and businesses, approximately $130 million for medical monitoring of those living near the plant, and $192.2 million in punitive damages. The jury found that DuPont actively tried to conceal the harm they had caused.

I have previously posted about the TCE contamination at the CTS Asheville Mills Gap Facility. One wonders why none of the residents who live near the CTS contamination site in Asheville, NC have taken legal action against CTS. The toxic chemical contamination surrounding the Mills Gap site has caused residents living nearby to have various health problems, and most of them have had to stop using their well water. So far, there has been no clean up of the contamination. One also wonders why the City of Asheville has not called for CTS to clean-up of the area.

The answer as to why no one has sued CTS may be because those harmed by the contamination simply waited too long to act. In North Carolina, there is a 3 year statute of limitations for most tort actions, including negligence claims. This means that someone who has suffered an injury as a result of an individual's or a corporation's negligence has 3 years in which to file a lawsuit. Failing to file a lawsuit before the 3rd anniversary of the injury may be fatal to the claim, and the injured person may be forever barred from recovering for their harms and losses. In some instances, the statute of limitations can be tolled, or put on hold, such as where the injured person first learns of the harm after the statute of limitations has already ran. Either way, CTS should at least pay for the clean up of the Mills Gap site.

If you have been seriously injured or harmed as a result of another's negligence or recklessness, you should speak with an experienced trial attorney as soon as possible. Hiring an attorney early enables your attorney to protect your legal rights from the beginning.

Many people take the "wait and see" approach, hoping that they can negotiate a settlement with the adverse party's insurance company. This is optimistic at best, and naive at worst. Insurance companies have the upper hand in this situation because they know how the system works. They know that individuals do not know the law, and they know that the longer they can string an injured person along, all the while delaying the hiring of an attorney, the more difficult it will be for the injured person to prove their case if they do end up filing a lawsuit. Very often, important evidence disappears with the passage of time. Witnesses' memories fade.

Taking the "wait and see" approach will adversely affect your ability to recover full damages for your harms and losses.

March 25, 2010

Boy Scout "Perversion Files" May Reveal Abuse In North Carolina

Boy Scouts.jpgThe Boy Scouts of America, one of the most respected organizations in the world, has kept secret files for decades on Scout leaders who have been accused of and caught sexually abusing young boys. The leadership of the Scouts have allegedly referred to the files as the "perversion files," and they have fought long and hard to keep the files from being made public. These sex files have only been seen by the public in one other case in the 1980s.

Dozens of lawsuits against the Boy Scouts have been filed over the years alleging sexual abuse by Scout leaders, but judges for the most part have denied access to the sex files or the Scouts have settled the lawsuits before trial. Attorneys for the plaintiff in the Oregon case contend that the sex files show a pattern by Scout officials of ignoring suspected abuse or allowing pedophiles to return to their leadership roles. The attorneys represent a 37 year old Oregon man who was abused by a Scout leader in the 1980s. The defendant in the Oregon case has admitted abusing 17 out of the 30 boys in his troop.

One document from the files, by a Scout leader in an undisclosed town, states that a Scoutmaster who admittedly slept in the nude and showed pornography to Cub Scouts showed bad judgment, but shouldn't be dismissed. Another document noted that a Scoutmaster who admitted sexual abuse was allowed to return to his duties after seeing a psychiatrist. Such evidence could certainly cause reasonable jurors to conclude that the Boy Scouts of America intentionally continued to expose young boys to sexually abusive leaders. Such intentional conduct could result in a substantial punitive damages verdict in the Oregon case.

There are over 4.5 million young boys between 7 and 20 years of age involved in the Scouts, and the Scouts have more than 300 leadership councils throughout the US. With thousands of Scouts in North Carolina, it is likely that some of those have also been abused by Scout leaders.

A spokesman for the Boys Scouts of America, Deron Smith, said "unfortunately, child abuse is a societal problem and there is no fail-safe method for screening out abusers." While this may be a technically true statement, there are proven methods for preventing child sexual abuse. As I have previously written, the most important rule any youth organization must have is a firm policy that prevents one adult to be alone with one child at any time. You can read about ways for preventing child sex abuse at Darkness To Light.

At Davis Law Group, we have successfully represented those who have been sexually abused by trusted adults. If you have any questions about your legal rights, feel free to call and discuss your situation with an attorney who is experienced representing those who have been sexually abused.

March 12, 2010

Asheville Music Minister Pleads Guilty to Producing Child Porn

darkness to light.gifThe former music minister at St. Eugene's Catholic Church pleaded guilty yesterday to coercing a 13 year old girl to engage in sexually explicit conduct for the purpose of producing a child porn video. Paul Lawrence Berrell, 29, faces between 15 and 30 years in prison. Hopefully, the Federal District Court Judge who sentences him will give him the maximum prison term.

Unfortunately, sexual abuse of children happens much more often than most people think, and the statistics of child sex abuse are shocking!

According to the advocacy group Darkness to Light, 1 in 4 girls are sexually abused and 1 in 6 boys are sexually abused before they reach age 18. Thirty to forty percent of children are abused by a family member. Another 50% are abused by someone outside of the family that they know and trust. Approximately 40% are abused by an older or larger child whom they know. That leaves only 10% to be abused by a stranger.

Child sexual abuse is the least known epidemic in our society. The biggest thing that you can do to protect your children and prevent this from happening to a child that you know is to get actively involved in the prevention effort. Darkness to Light is a national non-profit organization dedicated to preventing child sexual abuse. If you want to stop child sex abuse, go to their website and get involved.

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March 11, 2010

Police Charge Asheville Wrong Way Driver

Wrong way car.jpgNorth Carolina State Troopers have charged a Brevard man for driving the wrong way on Interstate 26 between Asheville and Hendersonville. The wrong way driver, James Mint Barton, age 65, apparently traveled at least 15 miles in the wrong lanes before he was apprehended by State Troopers. He told Troopers that he was on his way to the Asheville Airport.

Not surprisingly, Troopers charged Barton with Driving While Impaired. Trooper RE Baker stated that Barton was also charged with reckless driving and driving the wrong way on a dual lane highway. Barton ran several cars off the Interstate during his extreme drunk driving, but fortunately no accidents occurred and no one was injured.

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January 17, 2010

Johnson & Johnson Issues Giant Recall In North Carolina

Thumbnail image for Johnson & Johnson Bldg.jpgOn Friday, January 15, 2010, Johnson & Johnson, the multi-national conglomerate, issued a huge recall of several of its most popular over the counter medications, including Tylenol, Motrin and St. Joseph's Aspirin. The popular products have a strange moldy smell and have caused more than 75 people to become ill after taking the medicines. The symptoms range from nausea and vomiting to severe abdominal pain. Several people have sought medical attention after getting sick.

Johnson & Johnson apparently knew of the suspect drugs several months ago, but failed to promptly and thoroughly investigate the complaints. The moldy smell allegedly originates with a chemical used in treating the wooden pallets on which the products are shipped. Johnson & Johnson has not publicly disclosed the name of the chemical.

The Food and Drug Administration is also lobbing accusations that Johnson & Johnson should have notified them as soon as they suspected a problem. In a prior post about another drug making giant, Eli Lily, I explained how the FDA obtained billions as a result of the drug maker's violations of the Food, Drug and Cosmetic Act. Similar allegations by the FDA are considered likely in this case as a result of Johnson & Johnson's reckless disregard for the public's safety.

In a separate announcement, the Justice Department is alleging that the pharmaceutical giant has paid millions and millions of dollars in kickbacks to Omnicare Inc. to boost drug sales to patients in nursing homes. Federal prosecutors contend that Omnicare purchases of Johnson & Johnson medicines tripled during this under-handed scheme to more than $280 million. Such conduct will likely cost Johnson & Johnson tens of millions, as it should. Conduct by corporations that intentionally harms the public should continue to be subject these corporate wrongdoers to massive fines, criminal prosecution, and punitive damages.

January 11, 2010

Tractor Trailers Still Off Tracking In Western North Carolina

truck off tracking1.jpgA young mother and her child were recently driving west on US Highway 74 from Lake Lure to Asheville to visit relatives for the holidays. As the young women rounded a sharp curve about half-way into her trip, she encountered a tractor-trailer headed in the opposite direction. US Highway 74 is a restricted road, and it is illegal for tractor-trailers to travel it.

While the tractor was completely in its lane, the wheels of the trailer were more than half way across her lane. She braked immediately, and because of her low speed for the curve, she stopped in an instant, but it was not soon enough. The trailer tires rolled right over the front of her small compact car. This phenomena is commonly known as "off-tracking," and it happens on a regular basis in Western North Carolina.

The tractor-trailer did not slow down, nor did it stop, and it was gone before the young driver really knew what had happened. Fortunately, there was an eyewitness behind her, who turned around and followed the dangerous trucker until he was apprehended by the State Highway Patrol in Lake Lure. The trucker denied any knowledge that he'd run over the small car, but his companion in the truck told a different story. The trucker was charged with hit and run, operating a commercial motor vehicle on a restricted road, as well as other charges.

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November 11, 2009

Asheville - Wrong-way Driver Looked Sick Before Fiery Crash

Wrong way car wreck.jpgA recently released police report indicates that the woman who caused a fiery crash on the Taconic State Parkway in Mount Pleasant, NY looked ill on at least two occasions shortly before the wreck.

Police say that Diane Shuler was severely intoxicated and high on marijuana at the time of the crash that killed eight people, including herself. Toxicology reports show that Shuler's blood acohol content (BAC) measured .19 and that she had ingested marijuana during the hour prior to the wreck. The crash occurred as Shuler drove her minivan down the wrong-way of a scenic four-lane parkway.

Shortly before the crash, witnesses observed Shuler sitting on a guardrail beside her red minivan with her head down, looking sick. Another group of motorists described seeing Shuler driving down the middle of two lanes, staring straight ahead, both hands on the wheel, with a look of sheer panic on her face.

Tragically, Shuler's 2 year old daugher, her 8 and 7 year old nieces, and a 5 year old little girl were in the vehicle with Shuler and died in the crash. Three other adults were also killed as a result of the wreck. Shuler's son was the only survivor in the minivan.

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