For BadApple40

[seacluded]

What is the name of your state?What is the name of your state? South Carolina Injury occured in NC

Dear BadApple,

I just read your answer to James on a closed post regarding some answers before his federal trial.

I posted today asking questions regarding whom to sue while litigating as a pro se plaintiff. Your answer jolted me back to reality. No, I am not an attorney and yes, my attorney did drop our case and yes, I guess I should then reconsider the merits of my case if I have to, at this late date, file it pro se. This is in superior court which, to me, means nothing in relation to federal court as I have no clue.

I never thought of anything after the initial complaint except that, if I filed correctly, I might have the chance of securing an attorney after I have stopped the clock. Your thoughts on depositions etc made me nervous just reading it. Imagine if I couldn't get an attorney and we were in court; I'd be a wreck up against a para legal let alone an attorney for the other side.

I feel that our case has merit because of the damages my husband incurred but I imagine that proving he didn't contribute to his accident would be futile. I do not know the law, I don't know procedures and when you told James to look up the 'rules' I was lost. Like what rules? and where?

I'd just like you, and others, to tell me that I'm doing the right thing by chalking this up to experience and then learning from that experience, though I do hope this never happens again. I feel terrible just rolling over and allowing the insurance company to win but even though I can put all of my time and effort into this venture I just don't think I have nearly a fraction of the knowledge of civil procedure to complete the task.

I guess I'm just asking for assurance that I'm doing the right thing and that I'm in a lose/lose situation.

Thanks for any advice and/or help you can give. Seacluded

 

[seniorjudge]

Details?

Facts?

 

[seacluded]

Facts and details to SJ

Hi SJ and thanks for an answer.

Fact is: I was going to attempt to file pro se, superior court, state of NC which, as you know, has very restrictive personal injury laws regarding contributory negligence. I posted the facts under NEED HELP DESPERATELY yesterday.

Synopsis: Three years (almost) ago my husband fell while walking up to the 17th tee box at a golf course. Day was misty, tee box stairs were as slippery as the steps get up North in the winter except this was from a mossy substance on the stairs. No handrail, wooden steps, no anti slip surface. He was wearing golf shoes, normal, ordinary, soft cleated ones. You couldn't tell that this substance was on the stairs as all of the surrounding area was discolored. (They have since cleaned it off and also installed a handrail there.)

Stepped on the stair to go up and foot slipped out from under him. He did an actual split and then flipped over backward, kind of like a somersault. The rest of his foursome told me it was an extremely violent fall. They went to the club house to file an incident report but the staff had left early. It was about 4:45 PM in February in coastal NC.

My husband arrived home and was sore all over. I took him immediately to the ER as he complained of problems with his back. I had been told this was a violent fall and he isn't a young man who'd bounce back right away so I knew there could be some residual damage. The ER doctor told us to go to an ortho guy the next day.

Meanwhile, because he couldn't file an incident report, I called the course. No answer. I then (next day) went to the course with one of his foursome and he showed me what had happened and I filmed the stairs, the tee box, the conditions etc.-just in case. I told the staff what had happened. I asked for the name of their insurance company. They kept refusing that info (acting as if they didn't know) and after a few months of no answer from them I obtained the services of an attorney.

The attorney had the case for well over two years but was waiting to see if my husband required surgery. We kept asking him to file suit and he kept saying there would be plenty of time and he wanted to see what doctor bills would be etc. Meanwhile, we received $5,000 from the insurance company for the golf course, my husband received social security disability due to his injuries and yes, he may need surgery though he is reluctant to get it. He has injuries than can be proven by MDs, with X rays, MRIs and with medical records and I have them all. He has compressed and fractured vertabrae in his lumbar region of his back. He is still receiving treatment in the form of epidurals for pain every three months, steroids, pain meds etc.

The insurance company states that because my husband has one eye, because he had surgery on his knee twenty years ago, that this could have contributed to his fall. Additionally, he used a different set of stairs than the other guys because his ball was there so he approached the stairs from the side rather than the front. The side stair was still on ground level and also, there was no handrail to keep him from approaching that way.

His eye injury is 30 years old and since then he has played tennis and golf, he drives and he also ran a crane in a nuclear power plant AFTER he lost his eye. His knee surgery was over 20 years ago and he since then (this also without benefit of two eyes) has walked on girders 90 feet in the air, nimble as a ballerina. He was (at the time of the injury) 5'10" tall, 155 lbs and in excellent shape.

The insurance company probably reminded the attorney of those strict laws in NC (LOL) and the attorney contacted us and told us he was not going to keep our case as he was going into partnership with another attorney. I felt like he left me at the altar, all dressed up and no where to go, but I was gracious and thanked him for what he had done up until that time which, since I have the file now, I find is nothing. Because he 'abandoned' our case, whenever we would call an attorney and tell them the story they would say they couldn't help. I guess they feel as some on this board did on past postings...If you can't secure an attorney then the case probably doesn't have merit.

So, that's where I am today. Over $50,000 in doctor bills, husband on SS disability facing possible surgery, our lives changed forever, and no attorney. So, we are forced, if we want any kind of compensation, to attempt to file on our own. We had no idea we COULD file pro se. An attorney suggested it to us.

I was going to do that until I read some of the postings and realized that I have no idea what I'm doing. Yes, I think we are right. Their negligence in not maintaining the course in a safe manner, their steps not having anti slip surfaces, no handrails, their attitude regarding his eye and knee surgery (whatever happened to people 'taken as they are found'?) is indicitive of the kind of course they have and the kind of people that they employ. The stairs that my husband fell on are NOT up to code in height and depth or risers. I measured.
But, and because NC has that stupid but, we can lose even if a jury found them to be 99% negligent.

I guess the moral of the story is 'don't spill your coffee in your lap in North Carolina or, if you do, drive to the next state before you go to the hospital!' Thanks, Sea

 

[seniorjudge]

The insurance company probably reminded the attorney of those strict laws in NC (LOL) and the attorney contacted us and told us he was not going to keep our case as he was going into partnership with another attorney. I felt like he left me at the altar, all dressed up and no where to go, but I was gracious and thanked him for what he had done up until that time which, since I have the file now, I find is nothing. Because he 'abandoned' our case, whenever we would call an attorney and tell them the story they would say they couldn't help. I guess they feel as some on this board did on past postings...If you can't secure an attorney then the case probably doesn't have merit.

An attorney is not required to represent anyone. If this attorney (for whatever reason) wanted out of the case, then generally (big word) he is allowed to withdraw.

Yes, the fact that you cannot find an attorney indicates you have a bad case.

Slip and fall cases are notoriously hard to prove.

 

[seacluded]

To SJ

Thanks very much for taking the time to answer. I appreciate it. Seacluded

 

[seniorjudge]

Thanks very much for taking the time to answer. I appreciate it. Seacluded

You are welcome.

 

[badapple40]

Weird... I checked out the law on this, and it appears that North Carolina does have a 3 year statute of limitations on these type of claims.

Hatcher v. Flockhart Foods, Inc., 161 N.C. App. 706

A plaintiff cannot be guilty of contributory negligence unless he acts or fails to act with knowledge, either actual or constructive, of the danger of injury which his conduct involves. Harris v. Bridges, 46 N.C. App. 207, 264 S.E.2d 804, cert. denied, 300 N.C. 556, 270 S.E.2d 107 (1980).

The question of whether the plaintiff was guilty of contributory negligence is to be determined by the jury upon proof offered at the trial pursuant to this section. Miller v. Scott, 185 N.C. 93, 116 S.E. 86 (1923)

If you can properly plead out a complaint, and file it against the course, more power to you, it may even garner some type of settlement.

Let me suggest, however, that slip and fall cases are exceedingly difficult to prove absent some prior injury that occurred similar to that of your husband (e.g. that the course was on notice that the bridge constituted a slip hazard).

In private practice, I had the privilege to represent a PGA golfer who slipped on a bridge. We sued the tournament, the course, and the city that owned the course. We lost the case due to the "open and obvious" doctrine (I suggested to the partner on the case that we accept the $15,000 combined settlement, but he refused).

You _might_ be able to work out a $20,000 settlement. Also, by your cashing of their check, you might have precluded yourself from any kind of suit at all, if the letter with it said "please accept this in settlement" or anything like that. Insurance companies are tricky.

 

[seniorjudge]

Q: Also, by your cashing of their check, you might have precluded yourself from any kind of suit at all, if the letter with it said "please accept this in settlement" or anything like that.

A: You can bet the insurance company said that!

 

[seacluded]

Bad Apple

Thanks for the answer. Very kind of you and genuinely appreciated.

No, the check didn't come with any release to be signed. The letter indicated that the course was not accepting liabilty but that they had insurance for anyone hurt on their property and the limits were $5000.00. I made sure of that and, I wrote on the check, this is NOT a settlement.

Secondly: The course had prior knowledge of slippery conditions from moss covered stairs and bridges constructed of the wood used and not maintained. Usually courses (in Myrtle Beach, SC where I live) will have the rangers go out on their carts, inspect conditions and then take appropriate steps to eliminate potential hazards such as throwing sand on slippery surfaces etc. This course was not maintained and they should have known, because of the prior incident cited below, that slippery conditions could exist when all of the right elements come together. When I attempted to explain to the pro about the accident he said to me, "You won't get anything, Go to your insurance company. We had a member, old guy, slip and break his arm and they made him use his insurance company, not theirs." So yes, they had at least one incident to warn them of the dangers involved.

Third: They (the course) lied. The ins adjuster went out a year after it happened and said he could find no slippery conditions. I guess not. He also stated that 169 golfers had played that day and none had complained. No way did that course have 169 golfers. They would have been teeing off at 1:00PM and the pro shop would not have been empty before 5PM. The parking lot was empty, the day was miserable and the course was wide open, not many golfers. Those are records that must be made available, I'm sure.

All we asked for, in the beginning, was to have our medical bills paid. They refused. That's why we secured an attorney.

The only thing we have going for us, if we could file an intelligent complaint, is that we are telling the absolute truth so we wouldn't have to worry about what story we told, the injuries are documented and permanent and the golf club has no maintenance records at all which would indicate that the course has a lack of reasonable safety precautions. Golfers are sometimes elderly and have poor eyesight. The establishment should expect that and be able to accomodate for them also. (The ins company stated my husband has one eye....he had a hole in one right before the accident, with one eye!) OK, so even a blind squirrel gets an acorn once in a while.

Thanks to everyone for the advice and the help. I have no idea what I will do and yes, I wish I had an attorney. We wouldn't attempt to file pro se to save money as I would happily pay 50% to have a qualified attorney do the job. However, 50% of nothing is nothing, so who can blame them?

Thank you again. Seacluded

 

[seniorjudge]

Post back with results.

 

[seacluded]

sj



Thanks for the interest. I will do that. Seacluded

 

[Lynx 36]

What a joke!

Another example of someone trying to blame someone else b/c they fell. What a joke. Does your husband not have any common sense? When walking outdoors on things wet or icy one can slip.

I got a badly sprained foot while hiking. I tripped over a root in the trail. Maybe I could sue the National Park Service f/ not maintaining the trail.

With all this ridiculous litigation happening we are all going to have to sign waivers to go on any public property eventually. We'll have all the greedy lawyers to thank f/ this. Be happy you got 5k, you didn't even deserve that.

This country needs tort reform in the worst way. These ridiculously insane lawsuits must stop! They're ruining our country. So keep on suing. Every ridiculous lawsuit filed is just one more step to passing tort reform. It's certainly on our Presidents agenda. You greedy lawyers would hate that huh?

 

[seacluded]

tort reform and my ridiculous suit

Hi Lynx,

Hope you don't live in NC 'cause I don't want you on my jury. However, you are entitled to your opinion and I appreciate your answer. I like to know, in advance, what arguments I will have to defend against.

My husband is a very cautious man with an abundance of common sense. This was an accident and it was caused by negligence (not his) which is the operative word. He didn't claim that he burned himself because he spilled coffee in his lap. Now that would be a frivilous lawsuit.

Tort reform, in my layperson's opinion, is a gift to the insurance companies. I agree that we should clamp down on frivilous lawsuits and that the frivolity of the lawsuit should be determined in advance and sanctions imposed when filing such a lawsuit.

Do you accuse your doctor of greed when he charges you $150.00 for a visit? No, because he went to school for years to obtain the expertise which he used to heal you. Lawyers get a bad rap. They dedicate themselves to years of training and then, when they are aggresive and successful, they're called greedy. Every occupation is the same, there are good ones and bad ones, from janitors to attorneys and judges.

My husband paid $150.00 to play on that course as did about 25,000 other people that year. Surely the course can afford to pay an employee $6.00 an hour to ride in a cart and make sure the course is safe.

An outdoor step must have a surface that does not become slippery when wet. If an outdoor step does not have an anti slip surface the owner has not taken reasonable safety precautions and may be liable if you slip and fall.

Thank you for your interest and I appreciate your input. Regards, Seacluded

 

[badapple40]

Lynx:

That is perhaps the most unintelligent diatribe I have ever heard. We have a number of protections in place to protect landowners from liability for slip and falls, but sometimes they deserve to be held liable.

In the present case, it appears the course had knowledge and took precautions to prevent slip and falls, yet failed to do so on the instance the OP's husband falls. Thats classic negligence, and no amount of tort reform will change those circumstances.

They are looking for their meds -- it seems to me that if the insurance company was smart, they'd simply pay the medical bills, or, in the alternative, the course should do so. Had the course been doing their job and following their procedures to mitigate slip hazards in the first place, this would not have happened.

As for tort reform generally... I'm a big proponent of personal responsibility. Tort reform shifts risk and causes people to be more willing to hurt others or allow others to be hurt because it is economically beneficial to do so. It, in effect, allows folks to do things they shouldn't without any repurcussions. It'd be like saying "we should put a cap on all murder sentences to ten years." Everyone would be outraged. Yet a misunderstanding of the situation coupled with political hype and additional misinformation has everyone up in arms, all to protect a special interest group, the insurance lobby, so they can put more money in their pockets at the expense of injured parties at the end of the day.

And, so that my interest is disclosed.... I am a government attorney (litigation) that handles criminal/civil matters with no monetary interest one way or the other in tort reform, except to note that it puts me and my family at additional risk from folks who won't be held fully responsible for their negligence. I know insurance companies.... I had a number of them as clients in private practice.

Lynx: What is your interest? Ohh yeah, you work for an insurance company.

 

[Lynx 36]

Quote: "Tort reform, in my layperson's opinion, is a gift to the insurance companies. I agree that we should clamp down on frivilous lawsuits and that the frivolity of the lawsuit should be determined in advance and sanctions imposed when filing such a lawsuit."

Gift to the insurance companies? It's a gift to everyone. Why do you think your insurance rates are high. The more an insurance co. pays the more we all pay, as they just raise evryone's rates year after year.


Quote: "As for tort reform generally... I'm a big proponent of personal responsibility. Tort reform shifts risk and causes people to be more willing to hurt others or allow others to be hurt because it is economically beneficial to do so. It, in effect, allows folks to do things they shouldn't without any repurcussions. It'd be like saying "we should put a cap on all murder sentences to ten years." Everyone would be outraged. Yet a misunderstanding of the situation coupled with political hype and additional misinformation has everyone up in arms, all to protect a special interest group, the insurance lobby, so they can put more money in their pockets at the expense of injured parties at the end of the day."

Wrong. Tort reform eliminates ridiculously high punitive damages that people are awarded in certain areas of the country. No insurance co. should have to pay $100,000 to someone b/c they got whiplash in a car accident. This settlement is ridiculous.

Quote: "Do you accuse your doctor of greed when he charges you $150.00 for a visit?"

No I don't. I think it's justifiable as they need to charge this much to pay f/ their high malpractice insurance rates, as they are constatantly geting sued too. The awards in these cases are also ridiculous. You can thank the greedy lawyers f/ this as well. It's been all over the news lately, I'm sure you read, or seen articles on this.

Quote: "An outdoor step must have a surface that does not become slippery when wet. If an outdoor step does not have an anti slip surface the owner has not taken reasonable safety precautions and may be liable if you slip and fall."

I'm sorry but I just don't agree w/ you here. Any surface can be slippery if it's wet or icy. It's up to the user to have the common sense to know that when you step on a wet step, hey, it could be slippery and to exercise caution. In the wintertime it can get icy where I live. Now granted I'm a lot smarter than most normal humans I know, but when I see ice these signals go to my brain telling me to exercise caution when walking across.

My point is we all pay when insurance companies have to pay out. This affects the costs of consumer goods, doctor bills, etc. The only ones that make money are the lawyers. I could bore you w/ numerous class actions suits that benefitted no one but the atty's, but I won't do that here.

From a personal standpoint I certainly hope your husband heals up and is 100% again. It did sound like a nasty tumble. I just don't see where the golf course is liable here. Anyway, have a good day and best of luck to you.