Wilmington Personal Injury Lawyer - Wrongful Death

Mother Hit By Tractor Trailer While Changing Tire on I-40 Highlights Need For Safety Precautions

Jean Martin — Thu, 17 Sep 2009 09:35:03 GMT

An update on the I-40 accident from last week:

Kristen Anne Belair stopped to change her tire just before 1 p.m. Wednesday alongside the eastbound lanes near the Burgaw exit, said Sgt. W.L. Thurston of the N.C. Highway Patrol. She had two children in her car, ages 10 and 8. The children were not hurt, and neither was a retired agent of the N.C. Alcohol Law Enforcement Division who stopped to assist Belair.

A trust fund has been set up to benefit Belair’s two children. Anyone can make a donation to the “Kristen Belair Memorial Fund” by visiting any Carolina First Bank branch, said Steve Allen, an attorney who helped the family set up the trust. He said he was told Belair did not have a life insurance policy.

While the actual cause of the accident hasn't been verified, authorities believe the victim was struck by a bulldozer that was partially hanging off the side of the truck. This would have placed the truck in violation of federal safety codes.

Unfortunately, safety violations such as this may be more common than we would like to think. According to the American Association for Justice, which compiled data from the Federal Motor Carrier Safety Administration, over 28,000 motor carrier companies in the United States are in some violation of federal safety laws. These violations may include operating trucks with faulty brakes or tires, overloading the trucks, or hiring unqualified or poorly-trained drivers. Often, companies are aware of these safety violations, and do nothing to fix the problem because to do so would be too expensive.

Any of these safety concerns would be dangerous enough in a family-sized car, but the sheer size of commercial trucks makes these violations much worse. The vast majority of people who are killed in an truck-involved accident are the people in the other vehicle, so companies that cut corners on safety are putting innocent people at risk. Add the fact that truck drivers often have a lowered sense of caution, due to their safety in the bed of a large vehicle, and you have a recipe for disaster.

West Virginia and North Dakota are the most dangerous states in terms of safety violations, but no state's roads are completely safe. Therefore, it is more imporant than ever that you drive responsibly and stay aware of your surroundings. Your life is too important to leave in someone else's hands.

Originally posted at InjuryBoard by Jean Martin

Lawsuits Against North Carolina State Employees

Jean Martin — Fri, 22 May 2009 12:14:03 GMT

The government and governmental agencies have protection from lawsuits under the theory of sovereign immunity, which precludes lawsuits against the government without its consent. Governments can waive sovereign immunity to allow for lawsuits.

In 1951, North Carolina adoped the State Tort Claims Act which allows injured persons and grieving families to file suit against state agencies and state employees for acts of negligence. Under the State Tort Claims Act, a state agency, state employees or agents of the state may be sued for injury to another for the negligence and carelessness caused of a state employee or agent acting within the course and scope of their employment.

An action under the State Tort Claims Act must be filed with the North Carolina Industrial Commission within three years of the date the cause of action accrued or within two years of the date of death in the case of a wrongful death. Under the State Tort Claims Act, the liability of the State is determined under the same principles applicable a private person under the laws of North Carolina. This simply means that the State has no greater protection or available defenses than would private citizen who was sued for negligence. As the injured party, although you have to bring your claim in a particular court of law, you have the same rights and claims against the State for the negligence causing the injury as you would if a private citizen would have been at fault.

Types of claims that may be brought under the State Tort Claims Act include:

* medical malpractice at a state hospital

* wrongful death in automobile accident caused by state employee driving a state vehicle

* gross negligence during a police chase

* premises liabilty at a state owned property or facility

Citizens need to be aware that they do have rights to bring lawsuits against the state for negligent acts of state employees or agents.

Originally posted at InjuryBoard by Jean Martin

DOT Worker Dies After Being Crushed By Backhoe

Jean Martin — Tue, 10 Jun 2008 15:09:09 GMT

When my fellow IB partner Steve Lombardi asked me to join in a series of blogs about workers being accidentally backed over by fellow workers, I had no idea that the timing would be so ripe. Unfortunately, last week here in Wilmington, New Hanover county, North Carolina, we experienced such a tragic accident. Jimmy Lee Phillips, a long-time DOT worker, was killed after being struck by a backhoe operated by a fellow DOT worker. Mr. Phillips was standing behind the backhoe when it backed up and crushed him. The accident is still under investigation, but there is no doubt that Mr. Phillips' family is left with many questions.

One has to wonder if spotters were being used. Operators of heavy machinery often have their vision blocked, particularly in backing up. Were there workers who were supposed to be standing guard to prevent such accidents? Did the backhoe have an alarm that sounded when it was operating in reverse? Did the backhoe have such a mechanism, but it didn't work this time or had been dismantled? We often make jokes about such alarms, but they can save lives. Were workers given proper instructions and guidance as to the work that was going to take place and how the machinery would be moving about? Was there a proper work plan to ensure that workers would not be working in an area that was dangerously close to the backhoe? Workers on these types of job sites work in very confined spaces. Safety precautions are absolutely necessary to prevent such accidents.

Our hearts go out to the family of Jimmy Lee Phillips and to the operator of the backhoe as he undoutedly feels much anguish due to the tragic consequences of this accident. Hopefully this accident will serve as a wake-up call for workers and supervisors that proper safety precautions are necessary and equipment needs to be checked prior to each use to ensure that safety mechanisms are working properly.

Originally posted at InjuryBoard by Jean Martin

Accidentally Backing over a Fellow Construction Worker

Tate Hodges — Mon, 09 Jun 2008 09:10:19 GMT

Your first impression about this type of accident probably will be one of curious interest and inquisitive horror. After all, how often could this actually happen? Surely, there must be precautionary measures in place to ensure that one of the most traumatic construction accidents will never occur on any jobsite. However, a sobering realization is that this type of accident happens far more than we would believe.

The amount of catastrophic injuries and deaths has reached epidemic proportions. Highway and roadway workers are the most frequent victims of this hazard. To help reduce the amount of vehicular construction accidents, Congress has passed numerous regulations through the Occupational Safety and Health Act (OSHA). For example, adequate barricades, conspicuous clothing, and flag persons are required when a large vehicle is being operated on a construction site. Furthermore, OSHA requires an operable backup alarm if a vehicle is backing up. The lack of a flag person raises issues of supervision and adequate manpower. If a worker is injured as a direct result of failure to adhere to these standards, the injured person likely will have a strong legal claim.

In addition, if the injury is a direct result of a vehicle not operating properly, for example, a break malfunction, the injured may also have a product liability claim against the manufacturer or distributor of the vehicle. Product liability claims are especially helpful in obtaining recovery for the injured because unlike negligence claims, most product liability actions follow the legal concept of strict liability. In strict liability product liability actions, all the injured would need to prove is that the defective product was the proximate cause of the injury. Conversely, if the injury was a result of inadequate supervision, an OSHA violation, or the lack of reasonable care by a fellow construction worker, a negligence claim may arise against one or more responsible parties. Finally, workers compensation statutes can help the injured party obtain adequate compensation for costly medical bills, pain and suffering, past lost wages, and future diminished earning capacity. Products liability, negligence, and workers compensation claims are common issues that may arise in a lawsuit when a construction worker is backed over at a jobsite.

If you or a loved one has been injured from being struck by an operating vehicle on a jobsite, first, it is most important to report the accident immediately. Having a record of the accident immediately after it occurs is often required by law to have a legal claim. Second, it is strongly suggested to acquire an attorney who may help you in collecting important evidentiary documents, gathering witness information, serving the responsible parties with a lawsuit, and filing the lawsuit with the appropriate court. Although these types of injuries may seem rare, they do occur with some frequency, and it is important that you know your rights.

Originally posted at InjuryBoard by Tate Hodges