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North Carolina requires visits and inspections of its child care facilities, but regular inspections do not always guarantee a safe facility. A daycare in a neighboring state was forced to close earlier this month after a bookshelf fell on top of a little boy and broke his neck. The daycare had passed a surprise inspection as recently as February, but was previously cited for having too many infants and not enough day care personnel in January of 2012.

North Carolina law requires child care facilities to provide indoor area equipment and furnishings that are child size, sturdy, safe, and in good repair. North Carolina’s Department of Health and Human Services provides parents with an Environment Rating Scale that measures the quality of care provided at child care facilities. Evaluators assess a range of factors like hand-washing at regular intervals and the safety of the classroom area. Adequate supervision is also required, and North Carolina has determined the appropriate ratios of care-givers to children based on their age.

These statutory requirements and agency guidelines reflect the duty the state places upon day care providers to ensure a safe environment while watching other people’s children. When a day care provider fails in their duty to provide a safe environment, and the failure results in an injury or death, they are responsible for the damages that arise from the injury or death. Damages can include past, present, and future medical expenses, emotional distress, or lost wages. To obtain this needed compensation, the injured child and family may look to North Carolina’s guidelines and regulations for daycares as proof of the specific expectations placed upon facilities.

However, statutory requirements and guidelines for safety standards have previously been used by defendants to shield themselves from liability. In Davis v. Cumberland County Bd. of Education, 720 S.E.2d 418 (2011), the appellate court affirmed a lower court’s ruling in favor of the school board. The injured plaintiff was a six-year old boy who fell through wet bleachers and fractured his skull, causing permanent damage to his head. The school board was sued by the injured boy who alleged that they failed in their duty to keep the bleachers reasonably safe. The school board provided an affidavit from an engineer that affirmed the bleacher seatboards and floorboards met the Building Code requirements at the date of installation and modification. The courts looked at whether the school board, by meeting these requirements, exercised care that any reasonable school board would have exercised. The appellate court assessed that the school board’s compliance with the Building Code was evidence of due care, although not conclusive of the issue. Ultimately, the appellate court agreed that the school board exercised reasonable care and prevented the injured boy from pursuing his case against the school board.

The experienced North Carolina day care injury attorneys at Auger & Auger have worked tirelessly for their clients so they receive maximum compensation for injuries obtained in child care. They have analyzed all daycare statutory requirements and guidelines to hold negligent facilities accountable for the harm caused to children. If you would like to speak with one of the seasoned litigators, call the office for a free consultation at 888-487-0835.

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A recent appellate argument may lead the way for new civil liabilities across the nation for people who text drivers they know to be on the road at the time they send their text. Two injured motorcyclists attempted to sue the girlfriend of a driver who sent him the distracting text at the time of the accident. Both motorcyclists lost a leg, and sued the driver and the driver’s girlfriend for damages. The trial court threw out the claim against the texting girlfriend, but the injured motorcyclists appealed. The panel of judges appeared to take an interest in oral arguments that hold the texter accountable for sending texts that can distract the driver.

An injured party in North Carolina can pursue civil action against any negligent party to recover damages. To succeed in a claim of negligence, the injured party must “allege the existence of a legal duty or standard of care owed to the plaintiff by the defendant, breach of that duty, and a casual relationship between the breach of duty and certain actual injury or loss sustained by the plaintiff.” Sterner v. Penn, 159 N.C. App. 626, 629, 583 S.E.2d 670, 673 (2003). The aforementioned appellate argument may create the framework for a new civil duty to be applied to those who send text messages to colleagues, family, and friends. This means that texters would also be responsible to people injured by distracted drivers on the road.

If North Carolina chooses to hold those who text accountable, the injured party may have to show the following to succeed in an action against the texter: that the texter knew the driver was driving at the time they sent the text, that the texter knew the driver checks text messages while driving, and that this distraction resulted in the injury-causing accident. Proof may be necessary to show the relationship between the texter and the driver if there was not an explicit discussion documenting that the texter knew the driver was about to be on the road.

PlaygroundCurrently there is no such duty imposed upon texters in North Carolina, but the outcome of the appellate decision in New Jersey may open the door for those injured in North Carolina to pursue claims against those who cause the driver to be distracted. At the least, North Carolina drivers still have a duty to not drive while impaired or distracted. Drivers can be held accountable for compensatory damages if they injure others while driving negligently.

The North Carolina car accident attorneys at Auger & Auger know the pain and suffering of a car accident victim, and what compensation is needed to be made whole again. Arlene and Herbert Auger have several years of experience aggressively litigating car accident claims, and know how to navigate through insurance settlement negotiations and litigation. If you have been injured in a car accident by a distracted driver and want to pursue an action against all responsible parties, call the office today for a free, confidential consultation at (888) 487-0835.

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Last week the National Transportation and Safety Board (NTSB) recommended lowering the blood alcohol limit from .08% to .05%. All states, including North Carolina, implement the blood alcohol limit of .08% in their Driving Under the Influence or Driving While Impaired statutes. North Carolina has a tiered system of punishment for criminal prosecution of Driving While Impaired/Intoxicated. The six levels allow the courts to look at a combination of mitigating, aggravating, and grossly aggravating factors including prior DWI convictions, serious injury, and especially reckless or dangerous driving.

BreathalyzerWhile the criminal justice system provides a way of holding drunk drivers accountable, civil damages may also be available to those who are injured or to the family members of those who are killed by an intoxicated driver. In a civil suit for damages, the injured or representative of the deceased’s estate will have to prove that the driver’s intoxication level led to unsafe driving that caused the accident. The NTSB’s recommendation to lower the acceptable blood alcohol limit from .08% to .05% arose because the number of fatal car accidents can be substantially reduced. This information may aid in proving a negligent driver was impaired, even in the absence of a DWI conviction under current North Carolina statutes.

Impairment of one’s ability to drive can be difficult to prove, even with access to police reports and blood alcohol tests. In any suit for negligence or wrongful death, the injured party or deceased’s representative may need to use expert witnesses to aid the fact finders in analyzing the evidence presented. An expert witness in a drunk driving car accident case can explain the effects of alcohol or other controlled substances on a driver’s ability to see and process events. An expert witness may also be able to impute the level of intoxication at the time of the accident based on the blood alcohol test results, typically taken at a much later time. Tests administered hours after an accident occurs may reveal a blood alcohol level that has dropped since the accident, which means the person was driving at a higher level of intoxication and impairment when the crash happened.

The drunk driver may be liable to the injured or deceased for punitive damages on top of compensatory damages, if the driver’s conduct is considered willful and wanton. Willful and wanton conduct occurs when the driver behaved in such a way to show conscious and intentional disregard to the life and safety of others where he or she should have known it would result in injury or harm to the other person. The NTSB lowered alcohol recommendation may also aid in showing a fact finder that the driver was acting in a willful and wanton manner by driving at that level of impairment. If this can be shown by clear and convincing evidence, an injured or deceased party may be able to recover punitive damages up to $250,000 or three time the compensatory award (whichever is greater). Under North Carolina law, this cap may be removed if the actions of the drunk driver would give rise to a DWI offense.

The North Carolina Car Accident attorneys at Auger & Auger have successfully litigated and settled numerous car accident cases. Their experience has provided several clients with the compensation they need and deserve. If you have been injured or had a family member killed by a drunk driver, call the lawyers at Auger & Auger for a free consultation today at (888) 487-0835.

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The North Carolina Court of Appeals recently handed down a decision in favor of a truck driver whose tractor trailer ran into a woman, causing her death. The truck driver was driving down the highway when he saw another person driving in his lane the wrong way. To avoid a head-on collision, he jerked on his wheel, hit the brakes, and collided with the deceased’s car instead.

The driver claimed he was not responsible for damages to the deceased’s estate under the doctrine of sudden emergency. The doctrine of sudden emergency can be used when a person is confronted with an emergency situation that causes an injury to another as a result of his or her actions during the emergency. If the person’s actions are what a “reasonable person” would do in the same situation, then they are not liable for the injuries of the other party. The Court in Marshall v. Williams, 153 N.C. App. 128, 131, 574 S.E.2d 1, 3 (2002) summarized the doctrine of emergency as one that “creates a less stringent standard of care for one who, through no fault of his own, is suddenly and unexpectedly confronted with imminent danger to himself or others.”

The lower court found that the truck driver owed no duty of care to the now-deceased driver as he was trying to avoid a head-on collision. The representative of the deceased’s estate disagreed and appealed. The representative argued that while the doctrine of sudden emergency applied, there were other actions the truck driver could have taken to avoid the collision. The representative took the position that the truck driver could have veered right instead of left and braked sooner. The Court of Appeals upheld the lower court’s ruling, determining that while that may be true, the doctrine of sudden emergency exists to preclude that type of hindsight.

The doctrine of sudden emergency can be used in any negligence action to limit or preclude the defendant’s liability. Generally in negligence actions, a duty is owed by the defendant to the plaintiff specific to the situation, whether it is driving safely, maintaining real property that others are invited to, or manufacturing safe products. If the defendant failed in maintaining that duty and that failure resulted in an injury or death, then the defendant may be found liable for damages like the medical costs or lost wages of the injured party. The doctrine of sudden emergency is a defense that can only be used in very specific circumstances, like the appellate case described above.

Injuries caused by accidents can result in great pain and financial hardship to the person injured and their family. Life can produce complicated situations, and it may be difficult to claim the compensation that one is entitled to because the fault or responsibility may be unclear. If you have been injured in an accident and need attorneys who understand your unique set of circumstances, call the North Carolina personal injury lawyers at Auger & Auger for a free, confidential consultation at (888) 487-0835.

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Hand CuffsYou have paid for the tuxedo, tickets, dinner, flowers, dress, hair, make-up, and nails, but are you prepared for the price tag that comes with a DUI?

Senior prom, along with graduation, are the pinnacles of a student’s high school experience, and with all of the excitement comes the opportunity for some teens to make poor choices. This is a time for celebrating, but too often, teen celebrations involve underage drinking. According to the National Highway Traffic Safety Administration (NHTSA), during prom and graduation season, defined as April, May, and June, more than one-third of alcohol related fatalities involving people under the age of 21 will occur.

This scenario reads like the children’s book If You Give a Moose a Muffin. If your teenager is caught driving under the influence, he will likely be hauled off to jail. While he is being hauled off to jail, his car will likely be towed or impounded. To recover the vehicle, you will have to pay towing/storage fees in order to recover the vehicle. To recover your teenager, you will have to post bail. To post bail, you may need the services of a bail bondsman. Once out of jail, you will need the services of a criminal attorney. To pay the attorney, you may need several thousand dollars. If your teenager has to go to trial, you may need several more thousand dollars. And when you think it is over, it really isn’t, because you may need a few more dollars to pay the increased premium on your car insurance. And when it’s really over, you can count your blessings that it only cost money to survive your teen’s DUI.

North Carolina has a Zero Tolerance Law for underage drinking and driving. No one under 21 years of age can have any alcohol in their blood. Despite these strict laws, according to the Centers for Disease Control and Prevention, between 4.6 and 8.9% of teens in North Carolina admit to drinking and driving, and in South Carolina, the rate is even higher, with 11.3 to 14.5% of teens admitting to drinking and driving. Car accidents are the leading cause of death for teens between the ages of 16 to 20, and nearly 20% of teen drivers tested positive for alcohol.

So, what can you, as a parent do?
-Talk to your teen. Remind him that it is illegal and the criminal penalties can affect his future.
-Arrange for transportation with a limousine company. It is a small price to pay compared to the alternative.
-Do not allow your teen to attend a party where alcohol will be served, and if you are hosting the party, do not allow alcohol for the teens, even if everyone is spending the night. Under North Carolina law, you can face criminal penalties for allowing minors to have alcohol.

Facebook iconYour Posts Can Make Or Break Your Case

While your posts may seem harmless at the time, they can make or break your personal injury case. Recently, Courts have decided that the social media profiles of the parties to a legal action may be discoverable evidence, and that a person’s social media profiles can be requested by an opposing attorney as long as the profile and its contents are relevant to the legal action. What this means for you is that a defense lawyer has the right to ask to see your social media profiles and to examine the contents of those profiles up to and including any posts, messages, and pictures that are deemed to be relevant to your case.
Relevancy is interpreted broadly, and it is likely that any posts, pictures, or messages that
are located on your profile will be discoverable, meaning that the information will be able to be seen by defense lawyers and possibly a jury once your case goes to trial. It is the defense lawyer’s goal to portray the Plaintiff in a bad light and often times they will use any means necessary in order to do so. However, there are certain steps that you can take to avoid having your social media profiles negatively affect the outcome of your case. Following these easy tips will prevent any harmful post-injury information posted on your profile from becoming a tool that the defense can use against you.

“Privacy” Is Not A Valid Objection

When you join Facebook or other media sharing site, you are agreeing that your information is not private, even with the use of privacy settings. As a Facebook or other social media user, you are actively making information about yourself available on websites intended to be shared by other users. Even “non-public” sections of your profile will likely be discoverable as Courts favor a broad interpretation of what is relevant, and to conclude otherwise would excuse a plaintiff that tried to obscure information from self-imposed privacy settings.
Tips
-After you are injured or involved in an accident, freeze your account activity and change your privacy settings so that only you can post information to your profile and only friends may see your profile, this prevents anyone from posting to your accounts after the accident has occurred and also will prevent the general public from being able to access your profile from an internet search.
-Do not post anything regarding the injuries that you have sustained, how you are feeling, or any activities that you are doing, this includes “private messages” to friends, family, or co-workers.
-Do not post ANY pictures to your accounts following your injury as these pictures will be discoverable and may be used against you to show activity levels, your mood, or the extent of your injuries.
-Do not delete any old pictures or posts as this will look suspicious to defense lawyers. If deemed relevant, this information can and will still be found as it is backed up on the social media sites servers and by tampering with the information after your accident or injury you will raise suspicion as to why the post or pictures were deleted.
Following these four easy tips may prevent any post-injury information posted to your social media profiles from negatively affecting your case. Remember even though the information you post may seem private to you, once it is posted on the internet it no longer remains private and can be used against you.

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