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South Carolina Dog Bite Cases: Pointers from an Expert Witness

Ron Berman, an expert witness in dog bite cases throughout the United States, recently had an article entitled, “Dog Bite Cases: Avoiding 9 Common Mistakes”, in The Justice Bulletin published by the South Carolina Association of Justice.

This article provided several important points in building a dog bite case and the mistakes an attorney could make in developing their case against the negligent owner or person keeping and/or caring for the aggressive dog. (To review the law of South Carolina on dog bites read my previous blog entitled, “Dogs Bite, Owners Pay: South Carolina Dog Bite Law“.)

Mr. Berman makes these important points for those who have been bitten by a dog and incurred injuries:

  • Just because South Carolina has strict liabilityon dog bite cases does not mean a defense can not be raised or a burden for injuries can be met;
  • Video presentation or pictures of the aggressive dog can go a long way in being reimbursed for your injuries;
  • Inspect the area the dog inhabited for further clues of its aggressive nature;
  • Look over and request any documents or papers that can be provided by the owner for the dog;
  • Take pictures and document any wounds or bite marks; and
  • If going to trial, consult with an expert witness that can further your case.

As a point of reference, Mr. Berman cited statistics from the Center for Disease Control and Prevention that clearly point to how big an issue dog bites can be on a national level:

 

  • About 4.5 million people are bitten by dogs each year.
  • Almost one in five of those who are bitten :a total of 885,000: require medical attention for dog bite-related injuries.
  • In 2006, more than 31,000 people underwent reconstructive surgery as a result of being bitten by dogs.
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South Carolina Slip and Fall Law: When It’s Nobody’s Fault But Your Own

It may be a strange thing to hear from a lawyer but sometimes, there is no one to blame in a slip and fall accident but yourself. Just because you fall down on someone’s property does not mean the landowner is responsible for paying you for the injuries you incurred. I am sure it can be embarrassing to fall down and no one wants to get hurt and seek medical attention for fun. Just think about these scenarios:

  1. A roofer is hired to fix the top of your aging house and while jumping across the roof like a monkey, slips and falls to the ground, injuring themselves;
  2. Someone enters your home and trips over your bare hardwood floors for no apparent reason; and
  3. A shopper is pushing their cart down the aisle when one of their flip-flops comes off their feet causing them to stumble to their knees.

I would not take any of the above cases for the injured parties. They were simply harmed for no apparent reason or instigating factor. To have a slip and fall case there needs to be an element of notice to the landowner or the landowner must actually have created the harmful circumstance. Switch the cases around a bit and they would be worthy of pursuing further-

  1. A roofer is hired to fix the top of your aging house and while jumping across the roof like a monkey, slips and falls through a hole that had shingles placed over it when you noticed a leak but you failed to tell the roofer about your  “quick fix”;
  2. Someone enters your home and trips over the burly rug you have had for some time with all the corners ruffled over, that has caused you to trip over it once or twice already; and
  3. A shopper is pushing their cart down the aisle when they slip and fall in their flip flops because of all the water leaking from the ceiling/freezer/turned over product and there are no warning signs.

I would take a further look at the cases above.  Again, just because you fall on someone’s property doesn’t mean they owe you money. They owe you money when you receive injuries because you harmed yourself when they knew about a dangerous condition, should have known about a dangerous condition, and/or created a dangerous condition and failed to forewarn you about the condition.

Feel free to run any scenario you want by myself or someone that does that type of law in your state. A simple test to ask yourself:

I would not have fallen down but for ________.

Who is responsible for that blank?

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If You Are Injured After a Wreck, Dog Bite, Slip & Fall or _______:Seek Medical Attention

It sounds so simple but so many people I interact with from GreenvilleAndersonOconeeSenecaClemson, and the remainder of South Carolina, have a hard time understanding that lawyers are not doctors.

If you are hurt, hurting, in pain, or otherwise not in the same physical, mental, or emotional state you were in prior to some traumatic injury, or incident, then you should seek medical advice.  Doing this simple act can help you on several fronts:

  1. This helps diagnose and assess your problems;
  2. This helps you get better; and
  3. This helps objectify and validate the change(s) in your condition.

Having grown up in the rural area of Prosperity, South Carolina and now working for people from similar areas of the state, the comment:

“I dont like going to the doctor. They are just going to give me medication and run up a lot of bills.”

is a comment I hear all too often. However, try telling that evil insurance company that you are hurt, hurting, in pain, or otherwise not in the same mental, physical, or emotional condition you were in before ____________. (fill in the blank-wreckslip & falldog biteinjury at work, and/or negligent product).

Try figuring out a reasonable and fair amount to be compensated for your injury when you are the only voice or piece of evidence in your favor. Think that evil insurance company will believe you more or a disinterested third party that has no interest in the outcome?

I know, most times the evil insurance adjusters wouldn’t believe they were on fire if they saw their skin melting but you can only do your part as a reasonable person. Leave the insurance fighting to those that do it all the time and fight for your rights–trial lawyers, aka Trey Mills.

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Big Companies Make Big Mistakes and then Act Like Babies

Fortune Magazine had an Opinion article by journalist, Becky Quick, entitled:

“Toyota. Boston Scientific. Big Banks. Why So Many Companies Can’t Say ‘We’re Sorry,’ And Why That’s Bad for Business.”

Ms. Quick retells the account of an 84-year-old patient that had a Boston Scientific defibrillator and received an accidental shock to his heart.  Instead of apologizing the company sent letters to the medical journal that printed the account questioning the doctor that observed the incident.

We all know the plight of our tax money going to the Big Banks that were “Too Big to Fail”.

Toyota’s rise to global infamy may have come as a surprise to many consumers but not to Toyota as the Wall Street Journal reported knowledge of the problem with the gas pedals for nearly a year before the company was actually forced to admit to it.  (Secretive Culture Led Toyota Astray by WSJ).

Interestingly, Ms. Quick poses this question and then answers it herself:

So why do corporate execs seem to have such a hard time making apologies? Maybe because admitting a mistake can be expensive when you head a major corporation. Plaintiffs’ lawyers would have a field day with an apology, and recalling a product is expensive. Levick, a crisis-communications firm that has helped companies recall more than 100 products, estimates that it costs twice as much to recall a product as it does to litigate claims related to faulty goods.

I have gone over Costs Benefits Analysis in other blog posts. As a consumer you need to become a little more conscientious about what you are buying and from whom. Otherwise, your ignorance will work hand and hand with the profit analysis of big corporations. Those corporations count on your fear in making that call to get help from Plaintiffs’ lawyers when the company’s products do harm to you or your loved ones.

None of you will care until it happens to you, your son, your daughter, husband, wife, or loved one. I remember my early days with the American Red Cross. I worked with the blood services side because I had been a cancer survivor that received blood and platelets. Who better to recruit donors?  My spill to potential donors was always this:

If you or your loved one had a horrible wreck, got stricken with cancer, or needed blood or platelets immediately, wouldn’t you go to the hospital and expect it to be there? Why? You aren’t willing to give it yourself. Why should you or your loved one get it?

People usually got the point but the Red Cross thought my approach was a little too intense.  I went to law school where my intensity could be better focused on companies that do wrong. Never a shortage in work there.

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Personal Injury Claims and Bankruptcy (Part Two)

In Part One, I explained that if you don’t list your personal injury claim in your bankruptcy, you don’t “own it” any longer and don’t have the right to pursue the personal injury claim.   In this post I’ll tell you about another problem you’ll have and about a real case right here in South Carolina.

Judicial Estoppel Can Really Cause You Problems

If you fail to list legal claims during your bankruptcy, you may forever lose the right to pursue those claims. Once the other lawyer finds out your bankruptcy is inaccurate, you can’t say, “Whoops, I guess I’ll call my bankruptcy lawyer and list that claim on my schedules!” It’s too late.

This problem just raised its ugly head in the United States District Court here in South Carolina.  Blanche Wright had a legal claim against Richard Guess alleging violation of her civil rights. But when Ms. Wright filed bankruptcy, she didn’t list the federal lawsuit.

Predictably, the defense attorney found out about her bankruptcy filing. And they always do, by the way.

The defense then asked the court to dismiss Ms. Wright’s case because (1) she didn’t have standing to bring it—that is, she didn’t “own” the claim; her bankruptcy estate did, and (2) because Ms. Wright’s claims should be barred because of judicial estoppel.

What Exactly is Judicial Estoppel Anyway?

As Judge Anderson explained, “judicial estoppel is ‘an equitable doctrine that prevents a party who has successfully taken a position in one proceeding from taking the opposite position in a subsequent proceeding.’” This means you can’t say, “I have no legal claims” in your bankruptcy by not listing your personal injury case, then turn around and say, “I do have a legal claim” in your state or federal court case. You can’t “play fast and loose with the courts,” as Judge Anderson explained in Ms. Wright’s case.

Although Ms. Wright actually amended her bankruptcy after the defense filed its motion to dismiss, this didn’t impress Judge Anderson, who stated, “[c]ourts have repeatedly rejected the argument that judicial estoppel should not be applied when the debtor-plaintiff has attempted to remedy an omission by amending her bankruptcy filings.”

What’s All This Mean?

The bottom line is this:

  • You must notify your personal injury lawyer if you intend on filing bankruptcy. He needs to know. And he may also be able to refer you to a bankruptcy lawyer he knows will be qualified to handle your case.
  • You must list your personal injury claim on your bankruptcy schedules. Don’t ever hide anything from any lawyer you hire, and this is especially true when dealing with assets like claims in your bankruptcy estate.
  • If you don’t list your injury claim in your bankruptcy estate, you may lose it forever. Saying “oops, I forgot” will not work.

Your lawyers want the best outcome to your cases. Help them help you by keeping them informed of all your legal problems.

 

(This is a guest post written by Russell A. DeMott. Click on his biography below for more information about Mr. DeMott’s bankruptcy practice.)

 

Russell A. DeMott is a bankruptcy lawyer practicing in Charleston, South Carolina. He represents clients in Chapter 7 and Chapter 13 bankruptcy.

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