Ward and Smith - Personal Injury Insights - September 2023

PERSONAL INJURY INSIGHTS

Know

Your Civil Rights (p. 4)

Greetings!

Welcome to the fifth edition of Personal Injury Insights, an annual newsletter from Ward and Smith’s personal injury team.

Ward and Smith has been representing victims and their families in cases involving car wrecks, medical malpractice, and other personal injury matters for decades. These cases include claims for traumatic brain injury, paralysis, wrongful death, nursing home liability, and many others.

When necessary, we actively litigate these claims, having taken such cases to jury trials more than 150 times. We believe victims and their families are entitled to the full compensation they’re owed under our legal system, and we do all we can to achieve these results.

Our team regularly produces articles for our firm website and, in this newsletter, we have highlighted several of these articles. We hope you enjoy our insights and thoughts on personal injury and wrongful death issues included in this newsletter.

Our team is always here to help. Don’t hesitate to call us at 800.998.1102.

Your Trusted Advisors

As a full-service law firm, our personal injury attorneys regularly call on team members within the firm to manage estate issues, assist with special needs trusts, or deal with other legal matters that may arise for our personal injury clients.

Just as we trust our internal team members, we also place trust and value in our co-counsel relationships with our peers, both in North Carolina and in other states. Thank you for trusting us when your families, friends, or clients need assistance with personal injury matters. If you ever would like to discuss a potential referral or co-counsel relationship, don’t hesitate to call any of us directly at any time. Ward and Smith is a full-service law firm and also handles other legal matters, from eminent domain to business transactional work, and we are available to discuss other matters as well.

Know Your Civil Rights

Nobody is above the law. Law enforcement and other government work is a high calling of service. People deserve to trust the police and the government. Almost always, law enforcement officers and government employees earn and deserve that trust. Sadly, citizens sometimes suffer abuses with excessive force or betrayal of confidence by law enforcement and other government officials. In today’s world, people want to know: what happens when public officials don’t act right, and you are hurt?

What Is a Section 1983 Civil Rights Lawsuit?

Congress passed a law to take our constitutionally protected freedoms and give a single citizen the ability to hold a government employee responsible for violating those freedoms. This law is found in the United States law books at 42 U.S. Code § 1983. You may have heard it called a “1983 civil rights” lawsuit. It gives an individual the right to bring a private lawsuit against a government employee to fix civil rights violations when that government employee violates those rights. There are two important things to remember about 1983 civil rights lawsuits:

1. CIVIL RIGHTS

Section 1983 protects an individual against a violation of civil rights. Basically, it protects rights guaranteed by the United States Constitution, what you learned about with the Bill of Rights, like:

• freedom of speech,

• freedom to exercise your religion,

• freedom from excessive force (like an unnecessary violent arrest),

• freedom from improper search or seizure (like a search conducted with no search warrant), or

• freedom from cruel and unusual punishment (like bad medical care in jail or prison).

2. COLOR OF STATE LAW

This means that the person who violated your rights must have been acting with the power of the government or “under color of state law.” Courts say that means the violator had some sort of authority from state law. For example, a state law enforcement officer (like an ALE officer or SBI agent) acts under the color of state law when they arrest or search you; a city police officer or county sheriff’s deputy acts under the color of state law when they are on the job; and a detention officer at a county jail or corrections officer at a state prison acts under color of state law because they are acting on the authority given to them by the government.

Ultimately, a 1983 civil rights lawsuit allows individuals who have had their civil rights violated by a state or local employee—such as an election official, police officer, school resource officer, or sheriff’s deputy—to bring a lawsuit against that official.

Complex Nature of a 1983 Civil Rights Lawsuit

Holding a government employee responsible under a 1983 civil rights lawsuit is complicated. It requires knowledge of both state and federal laws. A government employee who violated your civil rights often has strong defenses that can lead to a judge dismissing the claim. The individuals whose rights were violated have to prove their cases. Usually, these cases are in the federal court system.

It can be difficult to prove that the wrongdoer acted under the color of law. The government employee typically must be on the job and acting inside the normal scope of that job when the violation occurs. While police officers and jail or prison employees often come to mind as the typical government employee who would violate your civil rights, it could be any number of other government employees, like an election official or school board employee, or even a health care provider who works for the government.

Even if you can show the government employee acted under the color of state law when they violated your rights, they can claim “qualified immunity” as a defense. Qualified immunity allows a government employee to get away with their actions unless so shockingly bad that everyone should have known the actions violated their civil rights. Qualified immunity also requires that your particular civil right violated was clearly established in a prior lawsuit before this government actor violated it.

That may seem simple, but government employees have used the qualified immunity defense to avoid responsibility in the past for things that seem obvious to normal

folks. Put simply: this defense has stacked the deck against victims of civil rights violations. It therefore is important to work with attorneys who understand how to outmaneuver a complex qualified immunity defense.

The statute of limitations presents another defense that can defeat an otherwise good 1983 civil rights lawsuit. Typically, the statute of limitations for a 1983 lawsuit in North Carolina is two or three years from the date of the violation, but it could be shorter depending on the specific constitutional violation. Whatever statute of limitation applies, a victim must bring their claim before it expires, or they can never bring it.

Protect Your Rights

Civil rights lawsuits brought under 1983 are very complex. It is important that victims find an attorney who has the experience and ability to protect their rights, and the skill to guide any lawsuit or legal claim to the best possible outcome.

Car Wreck Cases and Third Party Liability

Generally, the thought of a car wreck brings to mind a victim and an at-fault driver. The at-fault driver, however, may not be the only cause of the wreck. Instead, the actions and inactions of other third parties, such as government entities, road maintenance crews, employers, and others may have also contributed. When a car accident happens, it is important to consider the potential liability of any such thirdparties. Doing so will help ensure that compensation is available for medical bills, lost income, and other damages that an innocent victim may endure. It can be easy to miss these additional sources of liability and compensation in some cases. But, it is important that they are fully investigated and pursued as part of any personal injury representation.

The Roles of “Negligence,” and Joint and Several Liability

As always, whether an additional third party is liable for an accident depends on whether the potentially at-fault third party was “negligent.” Individuals are negligent when they fail to act with reasonable care and their actions cause an injury. A party’s actions or inactions may also be negligent where they fail to comply with a law, regulation, or policy. So, to hold a third party liable for a car accident, the injured party must demonstrate that the third party was negligent and that the third party’s negligence was a cause of the accident and resulting injuries.

North Carolina does not proportion fault between multiple negligent parties. As long as a third party’s negligence was a proximate cause of the injuries (even when others also were responsible), that third party is on the hook for 100% of the damages. This is the rule of joint and several liability. If there are multiple responsible parties involved in a car accident, for example, a negligent driver and a negligent third party, everyone liable is responsible for the full amount of the injured party’s damages.

Possible At-Fault Third Parties in a Car Accident

Aside from the at-fault drivers themselves, depending on the facts of each case, there may be numerous other at-fault third parties who also are liable for a car wreck:

• Government Entities. Entities responsible for designing or maintaining roads may be liable for creating unsafe driving conditions, including a lack of necessary stop signs or stoplights, overgrown vegetation, inadequate road signs, and a lack of crosswalks.

• Contractors and Construction Teams. Contractors, subcontractors, and construction teams may be responsible for creating unsafe driving conditions, such as negligently designed roadways; negligently designed construction plans, including traffic management plans; improper construction signage; misplaced warning signs; improper use of construction equipment; and negligent construction that creates dangers to motorists.

• Road Maintenance Crews. These crews may be responsible for an accident when their actions or inactions cause the wreck, including failure to place proper signage and warnings for drivers and negligently operating maintenance equipment.

• Employers. When employees cause an accident while acting within the course and scope of their employment, their employer may be held liable for the accident. It is important to look into who owns an at-fault driver’s vehicle, the at-fault driver’s employment status, the at-fault driver’s purpose for driving at the time of the wreck, and whether the at-fault driver had the necessary qualifications to operate the vehicle.

• Bars and Restaurants. If a bar or restaurant providing alcohol overserves someone they knew would likely drive and that person causes an accident, the bar or restaurant may be liable pursuant to a “dram shop” claim.

• Negligent Entrustment. If the owner of a vehicle allows someone else to drive their vehicle knowing that the driver is inexperienced, incompetent, unlicensed, or has a reckless driving history, the owner may be liable for an accident caused by the driver.

• Parents. Under the family purpose doctrine in North Carolina, under some circumstances, parents/guardians may be held liable for car accidents their children cause.

• Passengers. A passenger may be liable for an accident if, for example, the passenger interfered with the driver’s ability to operate the vehicle or encouraged an unfit driver to operate the vehicle.

• Product Manufacturers. The manufacturer of a vehicle or its parts may be liable for an accident if a product defect in the vehicle itself, such as a manufacturing or design defect, causes an accident.

Lawsuits Against Additional At-Fault Third Parties

Bringing a claim against another liable third party can be a complicated process. Depending on the third party involved, an injured party may need to bring claims within two different judicial systems—for example, state or federal court and the Industrial Commission. Depending on who the at-fault parties are in a wreck, different laws and regulations may guide the standards of care or negligence standards involved. These claims may also require additional discovery tools, such as FOIA requests.

The injured party also must use a proper strategy in the sequence of resolution when there is more than one negligent party. For example, improper paperwork used in early settlements can negatively impact, and even bar, an injured party’s recovery against potentially larger recoveries from other third parties who contributed to the accident.

An Injured Party’s Damages

Once the injured party proves that a third party was negligent and such negligence caused the car accident, the injured party’s damages must be evaluated. A court awards damages to make an injured person “whole” under the law. Although no amount of money could ever compensate someone for a serious, permanent injury or death, a monetary payment is the only option our civil legal system provides. A negligent party or their insurance company, if applicable, is responsible for paying these damages to the injured party.

As with other personal injury cases, there are multiple types of damages that may apply. “Economic” damages include past and present medical bills, as well as any other

future medical costs. An injured party may also be entitled to lost wages or a claim for diminished future earning capacity due to ongoing health problems arising from their injuries.

“Noneconomic” damages are meant to compensate the injured party for pain and suffering, scarring or disfigurement, loss of use of a body part, or the permanency associated with any continuing injuries. It is up to the parties (or their insurance companies, if applicable), a judge, or a jury to determine a reasonable amount of compensation for these damages based on the specific facts of a case.

Again, under the rule of joint and several liability, each negligent party whose negligence proximately causes injury is responsible for all of the injured party’s damages. An injured party cannot recover more than their total damages, of course. But, the ability to fully pursue each responsible party protects a victim when one tortfeasor has limited insurance or other assets. Potentially, an additionally liable third party may have additional insurance coverage or otherwise be able to more fully compensate the plaintiff.

Conclusion

Many factors can contribute to a car wreck, including the actions or inactions of an additional third party who was not even in the at-fault driver’s vehicle. When an at-fault driver and another party cause an accident and someone is injured, each of the negligent parties are legally liable for the damages caused. These cases can sometimes be complex. It therefore is important to involve an experienced, committed attorney to ensure the protection of an injured party’s rights and to provide skilled guidance during the legal process.

On the Frontline: 3 Ward and Smith Attorneys to Help Lead the Fight for Justice in Camp Lejeune Lawsuit

As the battle for justice continues, Ward and Smith stands on the frontlines, helping those affected by Camp Lejeune’s water contamination through three pivotal leadership appointments in the growing litigation case.

In July, Attorneys Charles Ellis and Hugh Overholt were chosen by the U.S. District Court for the Eastern District of North Carolina to join the Plaintiffs’ Leadership Team as Liaison Counsel. Their role as vital bridges between the court, victims, and the Leadership Team also encompasses numerous responsibilities. These include attending case management conferences, providing reports to plaintiffs’ counsel, and ensuring efficient distribution of all courtissued Orders to plaintiffs’ attorneys.

In August, Lynwood Evans joined the Plaintiffs’ Executive Committee, a crucial body that supports and advises lead counsel and co-lead counsel in coordinating and conducting the proceedings. This committee consists of dedicated members who also serve on various subcommittees, diligently executing a comprehensive litigation plan while ensuring oversight, accountability, and coordination. Among these subcommittees is the Law and Briefing Subcommittee, where Mr. Evans will serve.

“We are encouraged by the appointment of 3 of our attorneys to leadership positions in

this groundbreaking litigation and believe that their participation will help propel the legal process forward,” remarked Brad Evans, Ward and Smith’s Co-Managing Director.

The Camp Lejeune Justice Act provides compensation for Marines, their families, civilian contractors, and other on-base personnel stationed at the base between 1953 and 1987 who were adversely affected by exposure to the toxic water. Given the magnitude of this litigation, these appointments are crucial in ensuring effective communication and representation for those seeking justice. There is hope that this newly appointed leadership structure will provide the framework for progress.

Mr. Ellis, a 40-year litigation attorney, expressed his personal connection to the issue: “As a native of Onslow County, I personally have dozens of classmates and friends who have been directly impacted by this contamination. I am honored to play a key role in helping to bring about a swift and equitable solution for these individuals, and all the others seeking justice.”

Mr. Overholt, a retired U.S. Major General of the U.S. Army, is deeply aware of the base’s

water contamination due to his military background and involvement in writing the Camp Lejeune Justice Act bill. He emphasized the importance of seeking justice: “Having been in the military and seeing these cases emerge, I feel very responsible that we have a Department of Defense that would let this happen. I want justice for the Marines. Money doesn’t cure it, but the government has to pay for what happened at Camp Lejeune. It’s the right thing to do.”

Reflecting on his new role, Evans stated, “I am honored to be appointed to the Plaintiffs’ Executive Committee and the Law and Briefing Subcommittee in this crucial litigation. Together with the dedicated leadership team, I am confident that we will be able to work collaboratively with the Government and Court to create the framework within which these claims can eventually be brought to conclusion.”

Ward and Smith’s entire Camp Lejeune litigation team is dedicated to advocating for victims seeking justice for damage caused by the water contamination. Those interested can contact Ward and Smith directly or visit their website for more information about how they can assist in beginning their journey towards justice.

CAMP LEJEUNE TOXIC

The Camp Lejeune Justice Act was passed to compensate those devastated by the decadeslong water contamination crisis at Camp Lejeune. So what sparked this tragedy, and how far have we come? Here's a comprehensive exploration of its unfolding history and the strides made toward justice.

Camp Lejeune Opens

Construction at Camp Lejeune began in 1941 and became operational the following year.

1st Contamination Discovered

The Hadnot Point treatment facility was built to supply water to Camp Lejeune residents. Sadly, the ATSDR later reported that, by 1953, dangerous chemicals and solvents had polluted the water supplied there.

More Contamination Found

Based on ATSDR's analysis, the Tarawa Terrace water treatment facility was contaminated in 1957.

Testing & Results

In 1980, the Marine Corps conducted tests of its drinking water and identified VOCs (volatile organic compounds) in the supply in 1982.

The Investigation

The Navy opened an investigation to determine the source of the contamination.

Wells Shut Down

The Navy's inquiry revealed that the contamination originated from wells, prompting an eventual closure of ten wells by 1987.

WATER TIMELINE

The Safe Drinking Water Act is Amended

The Safe Drinking Water Act of 1974 was amended to establish standards for chemical contaminants found in the water at Camp Lejeune, coming into effect in 1989.

Health Risks Notifications Begin

Nearly 20 years after discovering hazardous water at Camp Lejeune, the US Marine Corps notified former tenants of their possible exposure to toxic substances while stationed at the base

Camp Lejeune Families Act of 2012

In 2012, President Obama signed the “Honoring America's Veterans and Caring for Camp Lejeune Families Act,” which provided medical care through the VA for those exposed to contaminated water while stationed at Camp Lejeune.

The Camp Lejeune Justice Act

In 2022, President Biden signed the Honoring Our Promise to Address Comprehensive Toxics (PACT) Act into law, which included the Camp Lejeune Justice Act that allowed veterans, family members, and workers to file compensation claims for exposure to toxic water while at the base between 1953 and 1987.

Lawsuits Begin

A Marine's wife initiated a legal action against the US government concerning water contamination at Camp Lejeune.

Compensation Begins

Funds were allocated for the VA to start compensating veterans exposed to Camp Lejeune's toxic water, but compensation has been limited

The Navy has received over 50,000 administrative claims, and more than 1000 lawsuits have been filed. The US government has yet to pay a single penny to resolve a case and has asserted defenses to the Justice Act lawsuits contending Marines, their spouses, and children assumed the risk of drinking contaminated water and were negligent for having done so.

NC Lawyers Weekly Highlights a Ward and Smith Appellate Victory

At Ward and Smith, our attorneys represent clients before all levels of the North Carolina court system. We are pleased to announce that one of our recent appellate victories was highlighted by North Carolina Lawyers Weekly.

The case involved an elderly couple who were attacked in their home after hiring a Health-Pro home aide who orchestrated a home invasion and armed robbery in September 2016.

Personal injury attorney Jeremy Wilson secured a $750,000 verdict for the couple in a jury trial held in Pitt County in April 2018. That verdict was appealed and overturned by the North Carolina Court of Appeals, and their opinion was then was appealed and overturned by the North Carolina Supreme Court. The case, according to the publication, “resulted in the clarification of case law regarding negligent hiring, supervision or retention.” From the article:

The Keith’s appealed to the North Carolina Supreme Court. The Supreme Court overturned the Court of Appeals and reinstated the jury’s verdict. The Supreme Court concluded that the Keiths had presented a claim for negligent hiring, supervision, or retention, and, while these claims do have additional requirements under North Carolina law, the Keith’s presented sufficient evidence to reach the jury.

The Supreme Court found that the Court of Appeals had erred in applying an overly restrictive interpretation of Little v. Omega Meats. The Supreme Court concluded that

the jury verdict should be reinstated. In its opinion, the Supreme Court clarified case law concerning what evidence must exist to establish a valid claim for negligent hiring, supervision, or retention. With interest, the Keith’s jury verdict totaled at over $1 million.

The Supreme court clarified case law and the required standard, including that an employer may owe a duty of care to a victim of an employee’s intentional conduct, “when there is a nexus between the employment relationship and the injury.”

While the Supreme Court opinion doesn’t expand on employer liability, it clarifies this area of the law, which is vital for the legal community, employers, and members of the public.

Jeremy Wilson, Chris Edwards, and Alex Dale handled the appeal, representing the plaintiffs before the Court of Appeals and the North Carolina Supreme Court.

Ward and Smith Launches

New Insurance Counseling and Recovery Practice

Ward and Smith is proud to announce a new practice group devoted to helping its clients leverage insurance and navigate disputes about it.

The members of the Insurance Counseling and Recovery Practice have deep legal experience and an understanding of insurance law and litigation. With over 100 years of combined experience litigating in state and federal courtrooms, the team is well-positioned to provide comprehensive representation for policyholders requiring an understanding of or facing insurance disputes about all types of insurance policies, including, but not limited to:

• Business Owners Policies

• Commercial General Liability (“CGL”) Policies and Claims

• Crop and Livestock Insurance

• Disability Policies and Claims

• Long Term Disability (“LTD”) Policies and Claims

• Product Liability Policies

• Professional Liability Policies

• Commercial Property Policies

Regarding recovery, this Practice Group helps clients navigate the complexities of the insurance process, and pursue a fair resolution. “All too often, insurance companies deny claims that policyholders are rightfully entitled to,” said Amy Wooten, Co-Chair of the firm’s Insurance Counseling and Recovery Practice Group. “Our team works with clients to identify legal options available in order to secure the benefits they were promised in their insurance policies.” Additionally, attorneys are well-versed in asserting and defending declaratory judgment claims related to insurance contracts and initiating breach of contract, bad faith, and unfair/deceptive trade practice claims against insurance carriers.

The Firm also embraces insurance consulting and advice as a critical component of its representation of businesses and individuals. This advice includes comprehensive policy review and analysis of coverage issues, such as identifying potential gaps, limitations, or other concerns, and ways to leverage insurance coverage as a component of strategic risk mitigation plans.

“As we continue to diversify our service offerings to meet the evolving needs of our clients, we feel this is an area where we can be of real assistance to clients seeking help in navigating their way through the often confusing system,” added Allen Trask, Insurance Counseling and Recovering Practice Group Co-chair. “So, we are even more excited about our ability to leverage these capabilities to serve our clients across North Carolina in a cost-effective manner.”

Ward and Smith Welcomes Two Litigation Attorneys

Ward and Smith is pleased to announce the addition of two new litigation attorneys with more than 60 years of combined legal experience.

Ellis Boyle and Joe Knott bring a wealth of knowledge in various areas of litigation, including business disputes, personal injury and wrongful death, and general litigation matters.

These accomplished litigators join a deep bench at Ward and Smith that includes dozens of seasoned trial lawyers handling cases across North Carolina and beyond. The addition also bolsters the firm’s ability to provide efficient dispute resolutions for individuals, businesses, and other entities.

“Our unwavering belief in providing the highest quality services for our clients has driven us to new heights,” remarked Brad Evans, Ward and Smith’s Co-Managing Director. “The recent addition of Ellis and Joe strengthens this promise, ensuring that we continue to be a powerful advocate and trusted resource for our clients. We’re thrilled to welcome them to our team.”

Meet the New Attorneys

Ellis Boyle has a multifaceted litigation practice, focusing on business disputes, personal injury claims, and general litigation matters. He represents businesses,

individuals, and other entities in federal and state courts, and advises clients through all phases of the litigation process.

Ellis is based in the firm’s Raleigh office. Get in Touch with Ellis: weboyle@wardandsmith.com 919.277.9187

Joe Knott has been a trial lawyer for more than 40 years. He represents individuals injured by the negligence of others. Personal injury and medical malpractice comprise the majority of his practice. Almost all cases involving medical malpractice and personal injury pit individual people against the vast insurance industry and its legal teams. Mr. Knott counts it a privilege to represent the Davids against the Goliaths.

Joe is based in the firm’s Raleigh office. Get in Touch with Joe: jtknott@wardandsmith.com 919.277.9178

Ward and Smith Personal Injury’s New Website Launch

We are proud to unveil www. wardandsmithpersonalinjury.com— Ward and Smith’s new dedicated personal injury website designed to help individuals in their fight for accountability and compensation.

Stocked with informative resources on cases we handle, such as trucking cases, product liability, auto accidents, premises liability, medical malpractice, and wrongful death claims, our new site also features an extensive library of articles written by experienced Ward and Smith personal injury attorneys. Clients can read client testimonials, learn more about the results we’ve achieved on behalf of victims and their families, and get to know our team. Additionally, our chat box enables potential clients to connect directly with our team.

“We understand that navigating personal injury claims can be incredibly difficult,” commented Jeremy Wilson, Ward and Smith Personal Injury Practice Leader. “Our intention behind creating this website was to arm individuals who need help recovering from their losses with digital tools and information.”

The new website is not a replacement for wardandsmith.com; instead, it builds upon our already-established commitment to providing exceptional legal services and unmatched representation. Any personal injury-related content, articles, and resources found on our original site will seamlessly redirect to its new home.

We invite you to explore our new website and take advantage of its helpful features. Visit www.wardandsmithpersonalinjury. com to learn more about our personal injury practice, and how we can help.

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newsletter is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this newsletter without obtaining the advice of an attorney.