RYAN BOLICK (Charlotte) and JANELLE LYONS (Charlotte) obtained Dismissal of all Plaintiff's claims against a Municipality and its Board of Elections in the Eastern District of North Carolina Federal Court.  Plaintiff was not promoted to Director of the Board of Elections and she filed suit alleging employment discrimination based on race, gender, and retaliation under Title VII, 42 USC §1981, §1982, and §1983 seeking compensatory and punitive damages, attorney's  fees and costs, and that Defendants be enjoined from engaging in any employment practices shown to be discriminatory and in violation of Title  VII .  The Court held that the Municipality and its Board of Elections had presented sufficient evidence that the  decision to hire someone other than the Plaintiff was based upon legitimate non-discriminatory reasons.  The Court also held that Plaintiff's evidence was insufficient to establish that the Municipality and the Board of Elections'  reasons for their decision to hire someone other than the Plaintiff were pretext and that the real reason for the refusal to promote was discriminatory.   As a result, Plaintiff's claims were dismissed with prejudice as a matter of law.

ROBIN TERRY (Raleigh) prevailed in a claim wherein Plaintiff sought a computerized prosthetic leg replacement.  Plaintiff had lost his left leg 24 years before.  In 2008, Plaintiff sustained a compensable low back injury and claimed physiologic changes from the low back injury caused Plaintiff to need a new computerized prosthetic leg. Defendants provided a replacement socket but argued that Plaintiff was not entitled to replacement of the entire prosthetic since Plaintiff had previously been compensated for the leg, had been prescribed a replacement prior to his low back injury and had the means to purchase same without contribution by the workers' compensation carrier.

In a permanent and total claim wherein Plaintiff was seeking 24 hour attendant care services to be provided by Plaintiff's family members, ROBIN TERRY (Raleigh) succeeded in limiting attendant care being provided to Plaintiff to 18 hours per day and prevailed in obtaining from the Industrial Commission and the Court of Appeals a continuation of Defendants' right to provide said care using professional caregivers as opposed to family members.  Plaintiff and his family members subsequently declined to allow professionals to provide the care recommended and additional litigation appealed through the Full Commission again confirmed Defendants' right to provide care through professional caregivers and found the family's refusal to allow professional caregivers into the home to be unjustified barring family members from receiving approximately one year of caregiver fees.  The Full Commission ordered the family to cooperate with Defendants' attempts to place professional caregivers into the home.

RYAN BOLICK (Charlotte) obtained Summary Judgment for a corporate sponsor of an event after which a sheriff’s deputy who had been hired to provide security for the event caused an automobile accident.  The Court held that the sheriff’s deputy had completed his duties at the time of the accident, and was not an agent of the corporate sponsor.

RYAN BOLICK (Charlotte) successfully appealed a denial of a Motion for Summary Judgment on behalf of a teacher based upon the doctrine of sovereign immunity.  The trial court denied the defendant Teacher’s Motion for Summary Judgment holding that she had been sued in her individual capacity.  On appeal, the Court of Appeals reversed this finding and held that sovereign immunity applied to the teacher as she was not sued in her individual capacity.

PATRICK FLANAGAN (Charlotte) and BRAD KLINE (Charlotte) obtained a per curiam decision from the Fourth Circuit Court of Appeals affirming the Western District of North Carolina Federal Court's granting of Summary Judgment to a defendant municipality and police officer.  Plaintiff alleged that he was subjected to an unreasonable search and seizure and was deprived of his substantive and procedural due process rights, all in violation of the Fourteenth Amendment of the United States Constitution.  The complaint arose out of a traffic stop of a vehicle owned by the plaintiff and the subsequent search of the vehicle and arrest of the plaintiff for possession of a controlled substance.  The case was dismissed with prejudice after the defense successfully argued that probable cause existed for the arrest and that the plaintiff failed to meet the standard for federal constitutional claims against municipalities set by Monell v. Department of Social Servs., 436 U.S. 658 (1978).  Oral arguments were held before the Fourth Circuit, and the Court issued an Order in which it held that Plaintiff had failed to meet the standard required by Monell, and the decision of the lower court granting Summary Judgment had, therefore, been proper.

BRAD KLINE(Charlotte) obtained a "no-cause" finding from the NC Department of Labor regarding a Retaliatory Employment Discrimination Act claim brought by a former employee who claimed he was terminated because he had filed a worker's compensation claim.

JENNIFER ADDLETON WELCH (Raleigh) tried a motor vehicle negligence case in Pitt County Superior Court in March, 2009 and received a no negligence verdict.

CHIP CAMPBELL (Raleigh) recently obtained a favorable defense award in an Uninsured Motorist (UM) binding arbitration. The two plaintiffs claimed significant injuries, but the arbitration award was less than 1/2 the amount that was offered by the defendant carrier prior to the arbitration.  

KATIE WEAVER HARTZOG (Raleigh) recently prevailed on a Partial Motion to Dismiss on behalf of an employer who was sued for breach of contract, wrongful discharge, fraud and misrepresentation by a former employee.  MS. HARTZOG successfully argued that the plaintiff’s claims for fraud and misrepresentation should be dismissed for failure to state a claim upon which relief may be granted.

KATIE WEAVER HARTZOG (Raleigh) recently obtained a “No Cause” finding from the EEOC with regard to a charge of discrimination made by a former employee who claimed that her employment was terminated due to her race.  MS. HARTZOG successfully argued that the charging party’s employment was terminated due to insubordination, not because of her race. 

KATIE WEAVER HARTZOG (Raleigh) recently prevailed on behalf of an employer at a hearing of the Employment Security Commission when the hearing officer reversed the prior ruling that the former employee was entitled to unemployment benefits.  The hearing officer determined that the former employee should be partially disqualified from benefits because his employment was terminated due to substantial fault on the part of the employee. 

KATIE WEAVER HARTZOG (Raleigh) recently obtained a “No Cause” finding from the EEOC with regard to a charge of discrimination made by a former employee who claimed that her employment was terminated due to her age.  The charging party, who was a person over the age of 40, claimed that she suffered from age discrimination because the position which was left vacant due to the charging party’s termination was filled by a younger person.  MS. HARTZOG successfully argued that the charging party’s employment was terminated due to her poor work performance, not because of her age.

MARSHALL WALL (Raleigh) represented a large farming operation that was sued by the estate of a former employee under a Woodson theory, claiming that the employee died as the result of serious violations of OSHA regulations.  MR. WALL was able to convince the plaintiff's attorney that there was insufficient evidence to support the claims and the case was dismissed, with prejudice, before any discovery was done or motions filed.

On behalf of an insurance carrier, MARSHALL WALL (Raleigh) pursued a commercial insured who was improperly underreporting payroll in order to significantly lower workers' compensation premiums.  MR. WALL won Summary Judgment for breach of contract but continued to press claims for unfair trade practices and fraud.  Ultimately the insured's answer was stricken for discovery violations.  After a judge denied the insured's motion to set aside this order, the case was resolved and the insured paid virtually all of the money owed. 

MARSHALL WALL (Raleigh) represented a business that was sued as a result of a motor vehicle accident involving one of its employees.  Using an accident reconstruction expert, MR. WALL was able to show that the plaintiff was traveling in excess of the speed limit and likely could have avoided the accident had she been following the law.  The plaintiff suffered significant injuries, underwent several surgeries and was hospitalized for a period of time after the accident.  The case was settled for a fraction of the plaintiff's medical expenses shortly before a hearing on a motion for Summary Judgment based on the plaintiff's negligence. 

FRANK ALBETTA (Wilmington), CHRIS HINNANT (Wilmington), and MELODY CANADY (Wilmington), obtained dismissal of a $24 million lawsuit filed against Cooperative Bank of Wilmington, now First Bank, in the federal District Court for the Eastern District of Virginia.  The complaint in the case – over 200 pages and 1300 paragraphs long – was filed on behalf of 130 purchasers of lots in coastal development communities in North Carolina and South Carolina, and named Cooperative as a defendant along with developers, marketers, six other mortgage lender banks, and others.  The plaintiffs alleged violations by Cooperative of the Interstate Land Sales Act (ILSA), the North Carolina Unfair and Deceptive Trade Practices Act, as well as conspiracy and fraud.  The seven lender banks and one developer moved for dismissal of all claims.  MR. ALBETTA, MR. HINNANT, AND MS. CANADY produced memoranda in support of dismissal based upon extensive research and drafting by MS. CANADY, sorting out and analyzing complex issues of jurisdiction, statutory construction, conspiracy, and fraud raised by the lengthy complaint.  At oral argument during the July 1, 2009 hearing, MR. ALBETTA addressed the ILSA issues on behalf of all the moving parties.  On August 28 2009, U.S. District Judge Gerald Bruce Lee dismissed all claims against Cooperative and the other lending banks, with prejudice and without leave to amend. 

KARI JOHNSON (Raleigh), with assistance from DAN HARTZOG, JR. (Raleigh), obtained Summary Judgment on behalf of a police department and its officers in a case pending in Superior Court where the plaintiff claimed that she was wrongfully arrested for larceny.  The defendants prevailed on all of the claims which included malicious prosecution, false imprisonment, defamation, intentional infliction of emotional distress and punitive damages. 

KARI JOHNSON (Raleigh) obtained Summary Judgment on behalf of a police department and its officers in a case pending in Superior Court where the plaintiff claimed that he was wrongfully arrested for driving while impaired and that his car, which was subsequently sold without his knowledge, was wrongfully seized in connection with the arrest.  

KARI JOHNSON (Raleigh) prevailed in a Fourth Circuit appeal where she represented various deputies and a Sheriff's Department in a case where the plaintiff claimed that her federal constitutional rights were violated when she was allegedly arrested without probable cause.  The plaintiff also alleged that she was the victim of racial profiling. 

KARI JOHNSON (Raleigh) obtained Summary Judgment in favor of a police officer in a case pending in the United States District Court (Eastern District) where the plaintiff claimed that his federal constitutional rights were violated when he was prosecuted for felonies as opposed to misdemeanors resulting in harsher habitual felon sentencing.  The plaintiff had also asserted that the defendant officer provided false testimony against him before the grand jury. 

KARI JOHNSON (Raleigh), with assistance from DAN HARTZOG, JR. (Raleigh), obtained Summary Judgment in favor of a municipality in a case pending in the United States District Court (Middle District) where the plaintiff claimed that his federal constitutional rights were violated when he was allegedly wrongfully arrested.  The plaintiff also claimed that the municipality engaged in discriminatory practices concerning districting and the treatment of handicapped individuals.

MELODY CANADY (Wilmington) and LEE POOLE (Charlotte) got a favorable opinion in a legal malpractice claim pending in the Western District. Judge granted our 12(b)(6) motion. Plaintiffs were alleging that this was a class action and that damages would have exceeded $5 million if they had been suc­cessful on all counts.

MELODY CANADY (Wilmington) and LEE POOLE (Charlotte) obtained dismissal as a mat­ter of law on behalf of their client, a southeastern law firm, in a purported class action lawsuit seeking over $11 million in damages and alleging numerous claims including fraud, breach of contract, breach of fiduciary duty and violations of North Carolina’s Unfair Trade Practices Act. Suit was originally filed in state court. After removing the case to the U.S. District Court for the Western District of North Carolina pursuant to the Class Action Fairness Act, MS. CANADY and MR. POOLE prevailed over Plaintiffs’ Motion to Remand the case back to state court. MS. CANADY then filed a Motion to Dismiss the complaint for failure to state a claim, on the basis that Plaintiffs’ claims were all premised on violations of North Carolina State Bar ethics opinions which do not give rise to civil liability, that Plaintiffs failed to allege any duty independent of the State Bar ethics opinions and Rules of Professional Conduct, and that Plain­tiffs failed to allege damages. Briefs were submitted by all parties, and the Court requested oral arguments on Defendants’ Motion to Dismiss. At the hearing, MS. CANADY successfully argued Plaintiffs’ failure to state a claim, and Defendants’ Motion to Dismiss was granted, resulting in dismissal of Plaintiffs’ case with prejudice.

At the conclusion of a week-long jury trial, RYAN BOLICK (Charlotte) obtained a defense verdict that the officers of a municipality did not use excessive force in effectuating an arrest of the plaintiff and that the officers and the City were not liable to the plaintiff for the injuries sustained during his arrest. Plaintiff claimed that the officers battered him and allowed police dogs to bite him unnecessarily. The defense argued that the use of force by the officers and the K-9s was reasonable under the circumstances.

PATRICK FLANAGAN (Charlotte) and BRAD KLINE (Charlotte) obtained Summary Judgment on behalf of a municipality, its police chief and a police officer in the Western District of North Carolina Federal Court. Plaintiff was a former police officer who alleged libel and a deprivation of his liberty interest under 42 U.S.C. 1983. The complaint arose out of the officer’s separation from employment with the municipality’s police department and information contained in the personnel file. The case was dismissed with prejudice after the defense successfully argued that the informa­tion contained in Plaintiff’s personnel file was true and had not been published to an outside third party.

NICK VALAORAS (Charlotte) won a recent workers’ compensation case in which Plaintiff suffered a compensable eye injury while working part time for a major home improvement store (Employer). As a result of his injury, he was also unable to go back to work at his full-time job as an air traffic controller. Employer has been paying him wage loss based on his AWW and CR with Employer but he claimed wage loss based on the difference between his full-time and part-time jobs. Such an outcome would have entitled Plaintiff to the maximum weekly CR due to his high salary as an air traffic controller. Deputy Commissioner Rowell ruled in favor of Employer and has allowed them to continue paying benefits based on his AWW and CR with Employer.   AMANDA SMILEY       (Charlotte) assisted on the case.

DAN HARTZOG, JR. (Raleigh) obtained a finding of substantial fault before the Employment Security Commission.

DAN HARTZOG, JR. (Raleigh) obtained two zero dollar settlements before the Equal Employment Opportunity Commission.

VICTORIA STREET TOLBERT (Charlotte) successfully represented a municipality, its police department, as well as four individually-named employee-defendants in an appeal filed with the Fourth Circuit Court of Appeals. Plaintiff initially filed suit in 2006 with the Eastern District of North Carolina alleging claims of race discrimination, racial harassment, retali­ation, wrongful termination, as well as claims for negligent infliction of emotional distress, intentional infliction of emotional distress, and negli­gent supervision. In February 2008, the Eastern District of North Caro­lina granted Summary Judgment in favor of all Defendants and Plaintiff filed an appeal with the Fourth Circuit Court of Appeals. In March 2009, after considering the defendants’ argument, the Fourth Circuit Court of Appeals filed a judgment and order affirming the Eastern District’s grant of Summary Judgment and dismissed Plaintiff’s complaint with prejudice, ending nearly three years of contentious litigation.

KATIE WEAVER HARTZOG (Raleigh) recently obtained Summary Judgment on behalf of the owner of a shopping center in a premises liability case. Plaintiff argued that the shopping center had multiple violations of the Americans with Disabilities Act and North Carolina Accessibility Code which caused Plaintiff to trip and fall over a curb. Katie successfully argued that Plaintiff was contributorily negligent at the time of her fall and that any alleged violations of the Americans with Disabilities Act or North Carolina Accessibility Code did not proximately cause Plaintiff’s fall.

TODD KING (Charlotte) Obtained a verdict of “no negligence” in an automobile accident trial where the defendant collided with Plaintiff. Plaintiff was riding a dirt bike on the sidewalk and collided with the defendant when her car made a left turn in front of him. Plaintiff operated the dirt bike without a light, after dusk, while wearing dark clothing.

MEREDITH BERARD (Raleigh) and GREGG NEWTON (Raleigh) recently received a favorable decision on a workers’ compensation claim from the Court of Appeals in which Plaintiff suffered an admittedly compensable lower back injury when she slipped and fell in a freezer while retrieving some bagels on March 7, 2003. Plaintiff was treated for her accepted lower back injury through April 14, 2003, at which time she was released from care and allowed to return to work without any restrictions by her authorized treating physician. Plaintiff never returned to work for the defendant-employer, though her former job was available. Plaintiff subsequently claimed that she injured her neck in this accident, and ultimately underwent a two level cervical decompression and fusion surgery at C5-6 and C6-7 performed on February 5, 2004. Although Plaintiff subjectively related her cervical condition to the work accident of March 7, 2003 and claimed that she had complained of cervical symptoms immediately after the accident, the medical records reflected (and the Full Commission found) that with the exception of an isolated complaint of neck pain on March 2, 2003 and an isolated complaint of having a “catch” in her neck on June 16, 2003, Plaintiff did not complain of any cervical symptoms until she saw her primary care physician on September 24, 2003 - over six months after the work accident. Nevertheless, two of the physicians testified that Plaintiff’s cervical condition was related to the work accident of March 7, 2003.   However, the Court of Appeals affirmed the Full Commission’s finding that the opinions of these physicians were based on an assumption not supported by the evidence (i.e. that Plaintiff developed cervical symptoms consistent with her disc herniations immediately to shortly after the work accident) and were also based solely on the purported temporal proximity of her symptoms to the work accident, contrary to established case law. As such, the Court of Appeals affirmed the Full Commission’s finding that Plaintiff’s claimed cervical condition was not causally related to the work accident of March 7, 2003. The Court of Appeals also affirmed the Full Commission’s finding that Plaintiff was not disabled as a result of any work-related injury after April 14, 2003. Clearly, any disability related to Plaintiff’s cervical condition was not compensable since the Court of Appeals upheld the Full Commission’s finding that the cervical condition was not proximately related to the work accident. Although Plaintiff’s primary care physician testified that Plaintiff was totally disabled due to both her cervical condition and her accepted lower back injury, he also admitted that Plaintiff had no objective findings with which to corroborate her subjective complaints or upon which to keep her out of work. Accordingly, the Court of Appeals upheld the Full Commission’s finding that Plaintiff was not disabled beyond April 14, 2003 as a result of any work-related injury.

BRIAN KROMKE (Wilmington) defended a compensable claim where the quadriplegic Plaintiff had a home voluntarily built by the carrier and who requires 24/7/365 attendant care from an RN and an NA to help him with every aspect of living in his own home and not in an institution. Plaintiff’s attorneys filed an expedited Hearing Request and dispensed with mediation, refusing to try and reach some agreements that would alleviate a Hearing. Plaintiff’s attorneys contended several modifications to Plaintiff’s home were necessary, despite the attendant care. They also contended roughly $700.00 in outstanding bills were unreasonably not paid by the carrier (out of a total of $3.2 million paid) and asked for attorneys fees in their pursuit of payment of the bills. The evidence illustrated that instead of helping effectuate payment of these bills over the course of roughly three years, Plaintiff’s counsel tried to “paper the file to death” and then seek attorneys fees from the IC through the hearing process. For the time period March 8, 2005 through June 25, 2008, Plaintiff’s attorneys claimed 1303.35 total hours were spent on “bill recovery” and their fee request was $86,188.50 with expenses of $5,087.19. The honorable DC Phil Baddour ordered the defense to make a number of modifications to the home on top of what AIG stipulated to provide pre-hearing and he also granted Plaintiff’s counsel attorney’s fees. On our appeal, the Full Commission wholly overturned the defense-negative portions of the DC’s O&A. AIG’s bill handling was found to be reasonable, no attorney’s fees were ordered to the plaintiff and the IC even ordered Plaintiff’s counsel to stay out of all aspects of bill handling. Plaintiff’s attorneys did not appeal.

NICK VALAORAS (Charlotte) Plaintiff alleged exposure to asbestos while working for our employer among other companies and claimed total disability. Case went to hearing and Deputy Commissioner ruled Plaintiff was exposed to asbestos but was not last injuriously exposed during his employment with our client, Power Plant Maintenance. Plaintiff was not awarded total disability but only lung damage compensation. Case was appealed to Full Commission and the Full IC affirmed the decision but also awarded Plaintiff ongoing total disability. The case is now on appeal to the Court of Appeals. JARED SIMMS (Charlotte) assisted in the case.

MARSHALL WALL (Raleigh) and DREW HATHAWAY (Raleigh) were able to have a $1,000,000 default judgment against a trucking company and driver set aside in Carteret County Superior Court. MR. WALL and MR. HATHAWAY were able to show that a letter filed with the court by the former owner of the company should have been considered an answer and prevented the entry of a judgment.

MARSHALL WALL (Raleigh) had a trial in Lee County Superior Court in which Plaintiff claimed that she suffered serious, ongoing headaches as the result of a relatively minor motor vehicle accident. Liability was admitted and the case was tried solely on damages. Plaintiff’s attorney demanded $75,000 to settle the case before trial. The jury awarded her $1,000.

MARSHALL WALL (Raleigh) had a trial in Martin County Superior Court in which Plaintiff was driving a tractor on a rural highway when he was struck by a commercial vehicle and thrown into a ditch. He was flown to a trauma center after the accident. His primary injury was a tibial plateau fracture. He claimed that he would need knee replacement surgery in the future, although this had not been performed. Liability was clear and was admitted before trial. Plaintiff’s counsel asked the jury for more than $200,000 in damages. The jury awarded $65,000.

HOUSTON FOPPIANO (Raleigh) was able to get a wrongful death case dismissed on behalf of a medical center in Oxford. The facts involved a 57 year old man with a seizure disorder who was brought into the emergency room, treated and discharged by the emergency room physician. It was 3 am and the man had been brought by EMS so the ED nurse called the man’s mother to come and take him home. The complaint alleged that the mother told the nurse that her son was disabled with a seizure disorder and to keep him at the hospital until someone could come to pick him up in the morning. The man was allowed to stay in the waiting room of the ED for as long as he needed, but at some point, decided to leave the premises and went missing. Seven months later his remains were found on a property about a mile away from the hospital. The cause of death was undetermined. Plaintiff tried to plead the action as one of ordinary negligence for letting the patient leave the premises, and did not have a Rule 9(j) expert review the case as if it was a medical malpractice case. MR. FOPPIANO argued that the negligence in question was centered around the healthcare providers’ professional evaluation of the decedent’s medical and psychological condition, and was, therefore, a medical malpractice action that required a Rule 9(j) expert certification. The court agreed and dismissed the action.

REGAN TOUPS (Wilmington) won Summary Judgment in a homeowner’s association lawsuit that was filed by several property owners against their Association, their Board of Directors, and the remaining property owners in the community. The neighborhood at issue is a waterfront community that provides water access and docking capabilities to owners both on and off the water. A canal and turning basin were dredged by the developers to create the water access, and a bulkhead was installed around the dredged area to make sure the water area remained navigable. Plaintiffs filed a declaratory judgment action and asked the Court to invalidate a significant assessment that was passed to replace the bulkhead. Plaintiffs also asked the Court to judicially declare what each property owner should be required to pay for the bulkhead, claiming those who live on the water should pay more than those property owners who live off the water. A partial Summary Judgment was filed by the defendants, and the Court entered a declaratory judgment in their favor declaring that all property owners are to be equally assessed to repair, maintain and replace the bulkhead under their covenants unless a vote is passed by the owners to vary an assessment.

COLLEEN SHEA (Wilmington) and KATHERINE WAGNER (Wilmington) obtained Judgment on the Pleadings on behalf of their client, a regional elevator installer, in a wrongful death case arising out of the death of an 11 year old girl who was crushed when she became wedged between the residential elevator car and the elevator shaft wall. Suit was originally filed against the general contractor and the installer, and after several months of contested discovery, MS. SHEA successfully obtained a dismissal in the case based on the general contractor’s intervening and superseding negligence. After obtaining a settlement with the general contractor, the child’s Estate subsequently re-filed suit against the installer. MS. SHEA and MS. WAGNER filed a Motion for Judgment on the Pleadings grounded on the doctrines of judicial and collateral estoppel, which was granted, resulting in dismissal of Plaintiffs’ case with prejudice.

JENNIFER MORRIS JONES (Raleigh) received a favorable Full Commission decision in a workers’ compensation claim in which Plaintiff, a general maintenance mechanic for a major Triangle area university, contended that he sustained a work-related left thumb injury when he allegedly reached for his two-way radio in an awkward manner. As a general maintenance mechanic, Plaintiff used his two-way radio approximately four to five times per day. Plaintiff testified that he normally grabbed his radio straight on. In the day in question, Plaintiff testified that for some unknown reason, he reached around to pick it up, allowing his thumb to make contact on the opposite side of the radio from where his thumb usually made contact with the radio. He immediately felt a cramp in his arm and his left thumb was limp. Deputy Commissioner Griffin concluded that Plaintiff sustained a compensable left thumb injury and awarded benefits. On appeal, the Full Commission determined that Plaintiff had not sustained an injury by accident, as there were no unusual circumstances that led Plaintiff to reach for his radio in a manner different from his usual manner. The Full Commission denied Plaintiff’s claim for benefits.

JOHN MARTIN (Wilmington), NORWOOD BLANCHARD (Wilmington) and KATHERINE WAGNER (Wilmington) were successful at the North Carolina Court of Appeals, when the Court affirmed the trial court’s granting of Summary Judgment. Plaintiff was a child seen in a hospital for a fractured wrist. After treatment he was discharged home, and two months later brought back to the Hospital with severe head injuries, as a result of which the child is a quadriplegic. DSS found that the injuries were due to child abuse from a live-in boyfriend. Plaintiff alleged that the healthcare providers who saw and treated the child for the wrist fracture were negligent, and should have suspected and pursued an investigation and reported the abuse to DSS, all of which would have prevented the child abuse. The Court of Appeals affirmed the trial court’s granting of defendants’ Motion for Summary Judgment and dismissal of the case, holding that Plaintiff failed to establish that any alleged negligence was a proximate cause of the injuries.

AMY PFEIFFER (Raleigh) won a case at the Deputy Commissioner level in which Plaintiff had an admittedly compensable cervical spine injury for which she has received ongoing medical and indemnity compensation since 1992. In the interim, Plaintiff has developed low back pain and has had several dizzy spells, both of which she attributed as being directly related to the cervical spine injury. Plaintiff argued in front of Deputy Commissioner Houser that she was entitled to medical treatment for these issues, including a brain scan and an echocardiogram. Plaintiff also sought attendant care for help around her house, and wanted her employer to fund a life care plan, despite one never having been ordered or even recommended by a treating physician. Deputy Commissioner Houser denied all of Plaintiff’s claims as not being related to the initial compensable injury.

HOLLAND BARKSDALE (Charlotte) Deputy Commissioner Harris found that Plaintiff’s claim was barred by N.C.G.S. 97-22 due to her lack of reasonable excuse for the delay in reporting her claim. Plaintiff waited over six months and her excuse for the delay was that she “did not know it was work related” or thought that her back pain was related to a kidney problem. However, she had been treating with her chiropractor for several months by the time she report the injury. The Full Commission affirmed the determination of Deputy Commissioner Harris.

HOLLAND BARKSDALE (Charlotte) Deputy Commissioner Stanback found that Plaintiff’s claim was not compensable for various reasons, including her lack of credibility in the report of injury; her attempt to pass a drug screen using false pretenses; her failure to return to suitable light duty employment and her failure of the post-accident drug screen. The Full Commission affirmed Deputy Commissioner Stanback’s determination denying her claim for workers’ compensation benefits.

STEPHANIE A. GASTON (Raleigh) successfully defended a motor vehicle negligence case in Wake County District Court. At trial, Plaintiff alleged he made a U-turn on a green arrow, and that his vehicle was struck from the rear by the Defendant’s vehicle after he completed his turn. Defendant contended she was traveling straight through the intersection on a steady green light and that she did not see Plaintiff’s vehicle until immediately prior to the accident. Defendant testified that a vehicle in the lane to her left partially obstructed her view of traffic. There was testimony from the investigating police officer that the left turn signal for Plaintiff’s lane of travel sometimes emits a steady green light and sometimes emits a green lead. After submission of the issues to the jury, the jury returned a defense verdict, finding no negligence on the part of the Defendant. Plaintiff moved for a new trial on the grounds that there was no competent evidence to support the verdict and that the verdict was contrary to the greater weight of the evidence. The trial court denied Plaintiff’s Motion for a new trial, and Plaintiff appealed to the North Carolina Court of Appeals. Following briefing of the issues and a hearing without oral argument, the Court of Appeals affirmed the trial court’s denial of Plaintiff’s Motion for a new trial.

STEPHANIE A. GASTON (Raleigh) successfully obtained Summary Judgment for the owner of a hotel in a premises liability case. Plaintiff alleged that she slipped on an area of wet carpet in her hotel room. After deposing Plaintiff as well as Plaintiff’s roommate at the hotel, Defendant moved for Summary Judgment on multiple grounds. Defendant argued that viewing the evidence in the light most favorable to Plaintiff, Plaintiff had at least equal, if not superior, knowledge of the allegedly defective condition of the carpet prior to the accident. As such, Defendant argued it had no duty to warn or protect Plaintiff from the allegedly dangerous condition. After consideration of all matters of record and the arguments of counsel, the Court granted Defendant’s Motion for Summary Judgment as to all claims.

DAN HARTZOG (Raleigh) and STEPHANIE A. GASTON (Raleigh) successfully obtained Summary Judgment in a defamation and misrepresentation case. Plaintiff, a radiologist, alleged that statements made by Defendant, an orthopedic surgeon, resulted in a lawsuit being filed against him for medical malpractice and fraud. Defendant denied making any alle­edly defamatory or false statements regarding Plaintiff. After deposing Plaintiff and Defendant, as well as the claimant and claimant’s attorneys in the underlying medical malpractice action, Defendant moved for Summary Judgment. The Court found that taking the evidence in the light most favorable to Plaintiff, any allegedly defamatory statements made by Defendant were made to claimant’s attorneys in preparation of claimant’s medical malpractice lawsuit, and thus, were subject to an absolute privilege. The Court entered Summary Judgment on all claims in favor of the defendant.

STEPHANIE A. GASTON (Raleigh) successfully represented a car rental company (“Rental Company”) in a motor vehicle negligence case. Defendant driver, represented by separate counsel, was allegedly operating the rental vehicle at the time of the accident. In his complaint, Plaintiff alleged that Rental Company owned the vehicle operated by the defendant driver, but Plaintiff failed to allege any independent acts of negligence on the part of Rental Company. A Motion for Summary Judgment was filed pursuant to 49 U.S.C. 30106 on behalf of Rental Company. The morning of the Summary Judgment hearing, Plaintiff took a dismissal without prejudice of his claims against Rental Company. The remaining Defendants later settled the case and obtained a global release and dismissal with prejudice of all Defendants, including Rental Company.

GLORIA BECKER (Raleigh) and BOB SUMNER (Raleigh) obtained a dismissal in the highly contested “body bag” case. Plaintiff filed suit alleging a catastrophic anoxic brain injury as a result of being wrongfully declared dead at an accident scene where he was subsequently placed in a body bag and transported to the morgue. MS. BECKER successfully argued a Motion to Dismiss on the basis that the complaint failed to state any negligence and gross negligence claims against the volunteer fire and rescue personnel at the scene.

GLORIA BECKER (Raleigh), MEREDITH BERARD (Raleigh) and DAVID BATTEN (Raleigh) obtained a dismissal in a class action case in which Plaintiffs alleged that the private collection agency wrongfully collected child custody pay­ments from them even after their parental rights had been terminated

HOLLAND L. BARKSDALE (Charlotte) successfully defended a claim where Plaintiff alleged that she sustained a back injury while working in the warehouse for her employer.  Defendants presented evidence from several witnesses that Plaintiff had never reported an injury, hadn't missed work until a few months later, no investigation of an injury could be conducted by Defendant-Employer due to her delay and that no one was even aware of Plaintiff's claim for 6 months. Further, defense evidence showed that Plaintiff had not even reported a work-related event to any of her medical providers and stated at the hearing that she thought her back pain was related to a kidney problem (even though she had been seen by a chiropractor for months).  Deputy Commissioner Harris bifurcated the hearing and found that Plaintiff's claim was barred by N.C.G.S. 97-22 due to a lack of reasonable excuse for delaying reporting her claim.  Due to this determination, Defendants didn't have to go through the expense of depositions and the claim was denied outright by both Deputy Commissioner Harris and the Full Commission.

MELODY CANADY (Wilmington) and LEE POOLE (Charlotte) obtained dismissal as a matter of law on behalf of their client, a southeastern law firm, in a purported class action lawsuit seeking over $11 million in damages and alleging numerous claims including fraud, breach of contract, breach of fiduciary duty and violations of North Carolina's Unfair Trade Practices Act.  Suit was originally filed in state court.  After removing the case to the U.S. District Court for the Western District of North Carolina pursuant to the Class Action Fairness Act,  defendants  prevailed over Plaintiffs' Motion to Remand the case back to state court.   Defendants  then filed a Motion to Dismiss the Complaint for failure to state a claim, on the basis that Plaintiffs' claims were all premised on violations of North Carolina State Bar ethics opinions which do not give rise to civil liability, that Plaintiffs failed to allege any duty independent of the State Bar ethics opinions and Rules of Professional Conduct, and that Plaintiffs failed to allege damages.  Briefs were submitted by all parties, and the Court requested oral arguments on the Defendants' Motion to Dismiss.  At the hearing, Ms. Canady successfully argued the Plaintiffs' failure to state a claim, and Defendants' Motion to Dismiss was granted, resulting in dismissal of Plaintiffs' case with prejudice.

RYAN BOLICK (Charlotte), at the conclusion of a week long jury trial, obtained a defense verdict that the officers of a municipality did not use excessive force in effectuating an arrest of the Plaintiff and that the officers and the City were not liable to the Plaintiff for the injuries sustained during his arrest. The Plaintiff claimed that the officers battered him and allowed police dogs to bite him unnecessarily. The defense argued that the use of force by the officers and the K-9s was reasonable under the circumstances.

COLLEEN SHEA (Wilmington) and KATHERINE WAGNER (Wilmington) obtained Judgment on the Pleadings on behalf of their client, a regional elevator installer, in a wrongful death case arising out of the death of an 11 year old girl who was crushed when she became wedged between the residential elevator car and the elevator shaft wall.  Suit was originally filed against the general contractor and the installer, and after several months of contested discovery, Ms. Shea successfully obtained a dismissal in that case based on the general contractor's intervening and superseding negligence.  After obtaining a settlement with the general contractor, the Estate subsequently re-filed suit against the installer.  Ms. Shea and Ms. Wagner filed a Motion for Judgment on the Pleadings grounded on the doctrines of judicial and collateral estoppel, which was granted, resulting in dismissal of Plaintiffs’ case with prejudice.

HOLLAND L. BARKSDALE (Charlotte) successfully defended a claim where Plaintiff alleged that she sustained an injury to her back and knee as a result of two falls while working for Defendant-Employer as a laborer.  Defendants presented evidence that she was not credible in her report of injury to her supervisor as well as her physician. Further, she had previously attempted to pass a drug screen using false pretenses and witnesses testified for Defendants regarding this event.  She also tested positive for drugs following the accident and while the claim was not denied for this reason, the positive drug test result was the reason that her light duty work restrictions could not be accommodated- she was terminated pursuant to company policy.  Plaintiff's counsel argued that the drug test was not valid and was truly the sole reason for the denial of the claim but Defendants were able to prove that the drug test was valid through testimony of the director of the drug testing facility.  Deputy Commissioner Stanback denied Plaintiff's claim for benefits and the Full Commission affirmed this determination.

DAN HARTZOG (Raleigh) and GLORIA BECKER (Raleigh), obtained summary judgment on behalf of their client, a national real estate investment group and apartment owner, in Wake County Superior Court in a negligent security case arising out of the brutal rape and murder of a tenant at their apartment complex. The case had been designated as an "exceptional case" pursuant to Rule 2.1 and had already undergone over 2 weeks of trial when the plaintiff took a voluntary dismissal following a ruling from the Court prohibiting a portion of plaintiff's security expert's testimony. The plaintiff re-filed the lawsuit, pursuant to Rule 41, and Mr. Hartzog and Mrs. Becker successfully argued that the rape and murder of the plaintiff was not foreseeable to the apartment owner, nor was the crime preventable. The evidence showed that the perpetrator was a serial killer who stalked the tenant and who took numerous trophy items with him from the crime scene.

BOB SUMNER (Raleigh), LEE POOLE (Charlotte), and JAYE BINGHAM (Raleigh) obtained a defense verdict of no negligence in favor of an international antiques and collectibles show producer, following a two week jury trial. The plaintiff, a vendor, sought over $1 million in damages, after he claimed some of his merchandise was stolen from a show.  The defense argued that the security and procedures at the show were in place and operational, and there was no negligence on the part of the defendants.

DAN HARTZOG (Raleigh) and KARI JOHNSON (Raleigh) obtained a favorable opinion from the North Carolina Court of Appeals in a case involving claims against a municipality and its police officers for a death that occurred during a vehicular police pursuit.  In the case, the decedent's estate alleged that the officer's conduct during the pursuit amounted to gross negligence.  The Court of Appeals disagreed and affirmed Summary Judgment in the defendants' favor.

HOLLAND L. BARKSDALE (Charlotte) successfully defended a claim where Plaintiff alleged that he sustained a head injury as a result of his employment.  Defendants presented evidence that Plaintiff actually sustained an alcohol withdrawal related seizure while working for Defendants and argued that case law precluded finding that this event was compensable because his injuries were not causally related to his employment.  Further, Plaintiff was not restricted from work and as of February 2008 was offered suitable light duty employment, which he refused. Deputy Commissioner Stephenson found that Plaintiff's claim was denied on both grounds.

KARI JOHNSON (Raleigh), with assistance from DAN HARTZOG, JR. (Raleigh) obtained a favorable ruling from the Fourth Circuit in a case where Plaintiff claimed that his constitutional rights were violated when he was charged by the defendant officer with various charges stemming from three separate incidents of sexual assault.  The Fourth Circuit affirmed Summary Judgment in favor of the defendant police officer based on qualified immunity.

LEE POOLE (Charlotte) and JANELLE LYONS (Charlotte) tried a week-long nursing home case in Mecklenburg County in which Plaintiff alleged negligent care resulted in Stage IV decubitus ulcers and sepsis.  The jury returned a verdict of no negligence.

KARI JOHNSON (Raleigh) obtained Summary Judgment on behalf of the defendants, a Sheriff and various deputies, in a case pending in the Eastern District of North Carolina wherein Plaintiff claimed that she was arrested without probable cause and was the victim of racial profiling. 

DANIEL KATZENBACH (Raleigh) and ANDREW HATHAWAY (Raleigh) successfully obtained Summary Judgment on behalf of their client, an architectural firm, in Federal Court in the Middle District of North Carolina.  The architectural firm had been sued for professional malpractice on a commercial project with alleged damages of over $1 million.  MR. KATZENBACH and MR. HATHAWAY successfully argued that Plaintiff had failed to forecast sufficient evidence of any breach of the applicable standard of care by the architectural firm, and the Court granted Summary Judgment in favor of the firm. 

TODD KING (Charlotte) obtained a defense verdict in a trial involving breach of warranty and lemon law claims against a national car manufacturer.  Plaintiff alleged that the car had a vibration at speeds of 70-75 m.p.h.  The defense admitted that the vibration existed, but disagreed with Plaintiff's description of its severity.  The defense also alleged that the vibration was an inherent characteristic of the car and, therefore, no defect existed. 

  

MELODY CANADY (Charlotte) obtained a voluntary dismissal with prejudice of a premises liability action against a municipality in which Plaintiff sought damages for injuries suffered when he slipped on ice allegedly created by Defendant's failure to maintain a fire hydrant. Plaintiff’s attorney voluntarily dismissed the action with prejudice after MS. CANADY filed a Motion for Summary Judgment and supporting memorandum, arguing that the City did not owe Plaintiff a duty because it was not the fire hydrant that created the dangerous condition and also arguing that Plaintiff was contributorily negligent in failing to take precautions to ensure his own safety.

NORWOOD BLANCHARD (Wilmington) secured a defense verdict on behalf of a municipal client in a jury trial of a premises liability case.  The case arose out of an incident in which a twelve year old minor was injured when she collided with a volleyball pole at a city park and struck an exposed bolt.  Plaintiff alleged that the City’s Parks & Recreation Department was negligent because the applicable safety guidelines required the bolt to be trimmed flush.  The jury returned a contributory negligence verdict.  This was a significant win because under North Carolina law there is a presumption against contributory negligence when the injured party is a minor under the age of fourteen.  

MEGHAN KNIGHT (Raleigh) obtained a favorable ruling from North Carolina Department of Labor regarding a Wage and Hour Act complaint filed by a former employee who, upon her resignation, claimed she was entitled to an extraordinary amount of pay for unused vacation.   

MEGHAN KNIGHT (Raleigh) obtained Default Judgment, including an order for an execution sale, in a statutory lien matter.  

MEGHAN KNIGHT (Raleigh) obtained a favorable settlement in a motor vehicle negligence case where the defendant driver admitted driving while impaired.  

MEGHAN KNIGHT (Raleigh) assisted a mental health care provider in reporting compliance after numerous HIPAA violations by former employee.

JONATHAN ANDERS (Raleigh) obtained favorable decisions from the North Carolina Industrial Commission in two cases involving alleged pulmonary occupational diseases.   The cases are Ray v. Mountaire Corp. and McNeill v. Mountaire Corp.  In both cases, live haul drivers contended that their exposure to chicken proteins, feathers, and droppings caused them to develop the condition of hypersensitivity pneumonitis, a condition that can result in inflammation of lung passageways, permanent scarring and permanent reduction in breathing capacity.   In Ray, the Commission ruled in Mountaire's favor in part due to the fact that a pulmonary function testing revealed no abnormality within a month after Ray was terminated from Mountaire for falsifying his job application.  In McNeill, the Commission ruled in Mountaire's favor in part due to the fact that Plaintiff suffered from Coccidyodomicosis that resulted in his hospitalization and disability.  Cocci is a fungal infection that can be contracted only in the Southwestern US, which is where Plaintiff drove trucks before going to work at Mountaire.   The Commission also found in both Ray and McNeill that neither Plaintiff proved that their job duties significantly contributed to their contraction of their alleged conditions.

PAT FLANAGAN (Charlotte), RYAN BOLICK (Charlotte), and MELODY CANADY (Charlotte) successfully defended an appeal by Plaintiffs to the North Carolina Court of Appeals of the entry of Summary Judgment in favor of a municipality.  Summary Judgment was granted in favor of the municipality in the Superior Court case in which two subcontractors died while working on a water line project owned by the municipality.  The estates of these subcontractors filed claims for wrongful death alleging that the municipality was negligent in failing to follow appropriate safety procedures and standards, and that the municipality was strictly liable under Chapter 143 of the North Carolina General Statutes due to its alleged failure to discover underground storage tanks near the site of the subcontractors’ deaths.  Plaintiffs’ counsel sought damages in this suit in excess of $10 million.  The Court of Appeals affirmed the Superior Court's entry of Summary Judgment in favor of Defendant.

RYAN BOLICK (Charlotte) successfully defended an appeal by Plaintiff to the North Carolina Court of Appeals of entry of Summary Judgment in favor of a corporate defendant and its employee.  Summary Judgment was granted in favor of Defendants in the Superior Court case in which Defendants complained to Plaintiff and her employer regarding her poor work performance over a period of approximately six months.  As a result of these complaints, Plaintiff was removed from her position.  Plaintiff sued Defendants for defamation per se, tortious interference with contract, punitive damages and unfair and deceptive trade practices.  In dismissing the action, the judge found that the complaints were not made with malice and that Defendants were privileged to make such statements as they were made to protect a business interest.  The Court of Appeals affirmed the Superior Court’s entry of Summary Judgment in favor of Defendants.

PATRICK FLANAGAN (Charlotte) and BRAD KLINE (Charlotte) obtained Summary Judgment on behalf of a municipality and police officer in the Western District of North Carolina Federal Court.  Plaintiff alleged that he was subjected to an unreasonable search and seizure and was deprived of his substantive and procedural due process rights, all in violation of the Fourteenth Amendment of the United States Constitution.  The complaint arose out of a traffic stop of a vehicle owned by the plaintiff and the subsequent search of the vehicle and arrest of the plaintiff for possession of a controlled substance.  The case was dismissed with prejudice after the defense successfully argued that probable cause existed for the arrest and that the plaintiff failed to meet the standard for federal constitutional claims against municipalities set by Monell v. Department of Social Servs., 436 U.S. 658 (1978).

ROBB RUBIN (Charlotte) and BRAD KLINE (Charlotte) obtained Summary Judgment on behalf of two individually named members of a corporation that owned and operated various sandwich shops.  Plaintiff alleged that she contracted Salmonella javiana food poisoning from a sandwich she ate at one of the restaurants owned and operated by the corporation.  However, Plaintiff filed her complaint against the individual members of the corporation and did not name the corporation as a defendant in her complaint.  The case was dismissed after the defense successfully argued that Plaintiff’s complaint failed to name the proper party defendant; that any Motion to Amend the complaint would not “relate back” to the original complaint; and, that any Motion to Amend would therefore be futile due to the running of the statute of limitations.

  

ERIN TAYLOR (Charlotte):

Kenneth Baker v. CCCC

Plaintiff sustained a compensable back injury in 2000.  Defendants accepted liability and paid medical and indemnity benefits.  Plaintiff returned to work for the Insured and Defendants made several attempts to pay Plaintiff for the rating.  Plaintiff refused to enter into a Form 21 agreement or clincher.  Defendants requested a Hearing to determine what permanent partial disability benefits were due.  Just weeks prior to the Hearing, Plaintiff informed Defendants that he had received additional treatment, including surgery, and would be asking the Commission to approve this unauthorized treatment.  Deputy Commissioner Gillen found Defendants rebutted the Parsons/Perez presumption and denied Plaintiff's claim for medical compensation; Plaintiff's recovery was limited to the rating.

Carl Kingston v. Lyon Constr.

Plaintiff alleged he contracted mesothelioma as a result of exposure to asbestos during his employment.  Two different carriers provided coverage for Lyon Construction during Plaintiff's employment period, PMA Group and Penn National.  While Penn National was the last carrier on the risk for Lyon Construction, Deputy Commissioner Glenn found that Plaintiff was last injuriously exposed to asbestos during PMA Group's coverage period.

Douglas Cooke v. First Choice Paints

Plaintiff, a painter, fell off a roof on September 21, 2005.  Defendants accepted liability for Plaintiff's injury to his right hip and provided medical and indemnity compensation.  In May 2007, Plaintiff alleged that he also injured his low back in the fall and sought medical treatment which was denied by Defendants.  Deputy Commissioner Glenn found Plaintiff presented insufficient evidence to establish the original work incident caused his low back condition.

Harold Hayes v. Weldon Steel

Defendants accepted liability for Plaintiff's neck strain on October 3, 2005 and provided medical treatment and indemnity compensation.  Plaintiff returned to work for the Insured and alleged a second injury on March 2, 2006.  Plaintiff then went to work for another Employer and alleged a third injury on January 17, 2007.  Defendants denied Plaintiff's claims for the March 2006 and January 2007 incidents.  Deputy Commissioner Griffin found Plaintiff failed to prove that he sustained a compensable injury on March 2, 2006 or January 17, 2007; Plaintiff's recovery was limited to a 5% rating issued after the October 2005 incident.

Belinda Harrison, Administrator of the Estate of J.C. Taylor, deceased, Employee v. HBD Industries

Plaintiff alleged deceased employee contracted asbestosis and lung cancer as a result of exposure to asbestos during his employment.  Deputy Commissioner Glenn found that deceased employee was not injuriously exposed to asbestos, that he did not contract any asbestos-related disease and that his death was not caused by occupational exposure to asbestos.  Plaintiff appealed to the Full Commission.  Commissioners Sellers, Mavretic and McDonald affirmed the denial of benefits.

Furnell Peaks v. Duke University

Plaintiff sustained a compensable injury to his right knee on May 12, 1998.  Defendant accepted liability for this claim and provided indemnity and medical compensation.  On February 9, 2006, Plaintiff fell at home injuring his right wrist.  Plaintiff alleged that his fall was caused by his right knee giving out and therefore was a compensable consequence of the original work injury.  Defendants denied liability for the wrist injury.  Deputy Commissioner Baddour found Plaintiff failed to prove that his fall on February 9, 2006 was caused by or was a direct and natural result of the original compensable injury on May 12, 1998. 

ROB GRIFFIN (Raleigh) and JENNIFER WELCH (Raleigh) successfully moved to set aside an entry of default against an alleged underinsured motorist carrier in Johnston County Superior Court. After obtaining the order setting aside the default entry, MR. GRIFFIN and MS. WELCH then successfully obtained a dismissal of the entire case against the carrier on the grounds that there was no UIM coverage available under the policy. 

ROB GRIFFIN (Raleigh) and CHIP CAMPBELL (Raleigh) obtained a Rule 12(b)(6) dismissal of a punitive damages claim in a wrongful death suit in Alamance County Superior Court. The estate of the decedent sought punitive damages from the defendant corporation's driver, who was legally intoxicated and was also killed in the accident. The dismissal of the punitive damages claim against the defendant estate assisted MR. GRIFFIN and MR. CAMPBELL in obtaining favorable settlements in the wrongful death claim and a companion suit in Guilford County involving a catastrophic injury to the passenger of the other vehicle in the same accident.  

MEREDITH BERARD (Raleigh), KATHY MILES (Raleigh), and DAVID BATTEN (Raleigh) obtained a dismissal of Plaintiff's appeal and upheld the trial court's granting of Summary Judgment in a medical malpractice case. Plaintiff's counsel subsequently filed a Petition for Writ of Certiorari with the Court of Appeals, which was denied by the Court. 

KATHY MILES (Raleigh) and MEREDITH BERARD (Raleigh) obtained a dismissal in a medical malpractice case when Plaintiff's Rule 9(j) expert failed to qualify under the NC Rules of Civil Procedure.

In another case, a Motion to Dismiss a medical negligence claim by KATHY MILES (Raleigh) was granted on the grounds that Plaintiff failed to comply with Rule 9(j) of the NC Rules of Civil Procedure. 

DAVID BATTEN (Raleigh), LEE POOLE (Charlotte), and LEIGH ANN SMITH (Raleigh) successfully defended a Maternal Fetal Medicine Specialist at trial in Mecklenburg County.  In this case, the minor plaintiff was born prematurely at a very early gestation and, as a result, was born with Cerebral Palsy and Blindness.  The plaintiff had a 23 million dollar life care plan as well as an emotional “day in the life” video.  After seven weeks of trial, the jury decided in favor of the defendant doctor. 

VAN BARNETTE (Raleigh) successfully argued a motion for summary judgment in Sampson County Superior Court.  Plaintiff claimed that he sustained significant knee injuries after he slipped and fell in a restaurant.  In his complaint, Plaintiff alleged that he fell due to moisture which was present on a hard tile floor.  He also alleged that there were no signs warning him of this “hidden danger.”  During discovery, Defendant produced a video tape showing Plaintiff’s fall, which clearly illustrated that a restaurant employee had placed a “wet floor” sign at the area in question.  MR. BARNETTE utilized the video during his summary judgment argument and argued that, as a matter of law, the restaurant was not negligent and that Plaintiff’s own contributory negligence caused the fall.  The presiding judge viewed the tape in its entirety four times, read the briefs and ultimately granted Defendant’s Motion for Summary Judgment.

LEE POOLE, JR. (Charlotte) and TODD KING (Charlotte) obtained summary judgment and were awarded attorneys' fees in a case where the plaintiff sought property damages following a fire in plaintiff's home. The fire was caused by a faulty oven, and the defendant was a service technician who repaired the oven prior to the fire. The plaintiff appealed the award of attorneys' fees, and the firm's appellate division prevailed on that issue.

SUSAN BURKHART (Raleigh) obtained a dismissal of an insurance coverage action, removed to federal court, in which a claimant was seeking coverage for a large judgment obtained against an insured for allegedly failing to prevent an assault. The claimant’s attorney voluntarily dismissed the claim after being persuaded by Ms. Burkhart that no coverage existed for the judgment under an assault and battery exclusion in the policy, which North Carolina state courts had recently enforced in a similar case, even as to claims for “negligent” failure to prevent an assault or battery.

MEGHAN KNIGHT (Raleigh) and RACHEL ESPOSITO (Raleigh) successfully resolved a dispute over unemployment benefits that were improperly paid to a Town employee. The Employment Security Commission (ESC) sought reimbursement from the Town for the payment of those benefits. Problematically, this particular employee had worked for the Town on substantially the same basis for many years, and had never been terminated or had his hours reduced. It appeared that the employee had fraudulently obtained these benefits. The Town issued a letter to the ESC, explaining the impropriety of charging such improperly paid benefits to the Town. A check was sent with this letter in order to avoid penalties should the ESC determine that the benefits were properly paid. However, conversations with the ESC employees made it apparent that once the Town's payment was deposited, it would take some time for the ESC to issue a refund check even if the ESC determined the benefits were erroneously paid. The ESC employee who received the letter and check was directly contacted, and asked to hold the check without depositing it until after giving consideration to the Town's letter. As a result, the ESC reviewed the letter, gave the Town a full credit for the improperly paid benefits, and immediately returned the undeposited check to the Town.

MARSHALL WALL (Raleigh) obtained a summary judgment in a coverage case in the US District Court for the Eastern District. Plaintiff's wife was killed in a car accident. He claimed that he was entitled to recover UIM benefits of $1 million from her employer, since she was on the job when the accident happened. While we agreed that she was working when the accident happened, we argued that the policy only provided coverage if she was driving a vehicle owned by her employer, which she was not. The Court agreed and allowed our motion for summary judgment.

DAVID BATTEN (Raleigh), KATHY MILES (Raleigh), and MEREDITH BERARD (Raleigh) obtained summary judgment in a medical malpractice case on behalf of an emergency room physician and the physician's practice group. The judge found that the plaintiff's experts were not qualified to testify on the issue of standard of care because either they did not have expertise in emergency room medicine or they were not familiar with the community standard of care at the time of the incident giving rise to the lawsuit.

DAVID WARD (Raleigh) and LEIGH ANN SMITH (Raleigh)  After two weeks of trial in Moore County, North Carolina, a jury rendered a Defense Verdict for an OB/GYN physician. The case involved the delivery of a 36 week gestational age female, 7lbs, 7 oz, complicated by a nuchal cord and shoulder dystocia resulting in a severe left Brachial Plexus arm injury. Plaintiffs alleged the physician caused the injury by applying excessive traction or pulling on the head during delivery. The defense argued that the delivery was an emergency and that the physician provided excellent care. In addition, the defense argued the injury was caused by the expulsive forces of the Mother before the physician touched the infant.

DAN HARTZOG (Raleigh) and KARI JOHNSON (Raleigh) obtained a summary judgment in favor of the defendants, a police department and two police officers, in a wrongful death action where the plaintiff's decedent's vehicle collided with a patrol car involved in a vehicular pursuit. The defendants argued, and the court agreed, that the appropriate standard is gross negligence and that the evidence failed to establish gross negligence on the part of the defendants as a matter of law.

KARI JOHNSON (Raleigh) and DAVID WARD (Raleigh) obtained a dismissal of a wrongful death/medical malpractice action. The defendant prevailed based on the statute of limitations, despite the fact that a prior action had been filed and voluntarily dismissed. The court agreed with the defendant that the prior action was filed just to toll the statute and did not prevent a statute of limitations defense.

JOHN MARTIN (Wilmington) obtained summary judgment in a medical malpractice case on behalf of a pediatrician. The plaintiff alleged the pediatrician, along with other health care providers, failed to recognize child abuse in a 6 year old boy who had suffered a wrist fracture. The child was discharged home, and later returned to the hospital with severe head injuries resulting from child abuse, leaving the child permanently brain damaged. The defendants filed a motion for summary judgment on the issue of foreseeability, which the trial court granted, dismissing the case.

JOHN MARTIN (Wilmington) and JOHN "BO" WALKER (Raleigh) obtained dismissal in a medical malpractice case against an orthopaedic surgeon. The plaintiff alleged the surgeon failed to timely identify and treat loss of alignment at the fracture site following surgery, resulting in permanent injury. John deposed the plaintiff's expert witness, and filed a motion to dismiss the case on the ground that the plaintiff's expert witness failed to qualify on being familiar with the standard of care. The trial court granted the motion, dismissing the lawsuit.

GEORGE AUTRY (Raleigh), STEPHANIE AUTRY (Raleigh), and BRADY WELLS (Raleigh)   The new Clayton bypass took 11.5 acres of farmland from Donald and Edna Williamson. The Department of Transportation’s initial offer was $420,000. When that offer was declined the DOT condemned the land and filed suit. After the land was condemned the DOT appraised the land at $957,700. Trial began Monday, February 26, 2007 in Smithfield. The jury returned a verdict in favor of the Williamsons on Friday of the same week after only 30 minutes of deliberation in the amount of $2,377,681. The jury awarded every penny the Williamsons had asked for. Interest of over $300,000 has been added to the judgment. (DOT v. Williamson, Smithfield, NC)

JESSE M. "JAY" TILLMAN, III (Charlotte) obtained a dismissal in a construction defect mold damage trial in Buncombe County, North Carolina where he defended the developer and general contractor against the personal injury, construction defect, and unfair and deceptive trade practice claims made by the plaintiff. The plaintiff's claims of personal injury and unfair and deceptive trade practice claims were dismissed as a matter of law and the plaintiff received from the jury less than ten percent of her original $1.5 million claim.

TODD KING (Charlotte) obtained summary judgment for a substance abuse rehabilitation facility accused of negligent infliction of emotional distress, negligent hiring/retention/supervision, and punitive damages after a client staying at the facility was assaulted by another client.

DANIEL KATZENBACH (Raleigh) obtained a summary judgment ruling in a case where he represented a home inspector who was being sued by homeowner plaintiffs who alleged that the home inspector did not perform his services properly and that resulted in them failing to discover extensive termite damage. The plaintiffs were claiming over $300,000 in damages. The Court dismissed all claims against the home inspector.

DANIEL KATZENBACH (Raleigh) obtained a hung jury result at trial where he represented a trucking defendant in a motor vehicle personal injury case. The trial judge refused to send the issue of contributory negligence to the jury over the objection of Mr. Katzenbach. The contributory negligence issue seemed to be the only realistic chance for a defense verdict. However, the jury could not reach a consensus on the liability issues in the case.

DAVID RHOADES (Raleigh) successfully defended a workers' compensation claim. The plaintiff worked in a plant making tires for a number of years and for the past couple of years had transferred to an inspection position where she actually walked more. She alleged that having to stand on concrete all day performing her job for approximately 18 years led to the development of right foot problems for which she had been taken out of work. There was no evidence of a specific injury or accident at work. Defendants put forth evidence that although plaintiff worked on her feet most of the day, the employer had provided ergonomic mats at her work station, insured that she was moving around the machines consistently so she was not actually standing in one position and verified that her most recent positions required more walking. Plaintiff also was overweight and had other congenital conditions. Plaintiff had seen a number of physicians, including podiatrists and orthopedic surgeons. Plaintiff underwent two surgeries and had several diagnoses of her condition. Defendants retained an expert to review records and testify as to plaintiff's condition and on causation. The Commission ultimately held that plaintiff failed to prove the elements of an occupational disease and denied her claim. Plaintiff has appealed, and the appeal is pending at the Full Commission.

DAVID RHOADES (Raleigh) successfully defended a workers' compensation claim. The plaintiff worked in a factory and suffered a compensable left knee injury in 2000. Plaintiff underwent three surgeries on the knee and ultimately returned to work with the same employer. Plaintiff last saw his treating physician in August 2003. Defendants paid all permanent partial disability owed on a Form agreement approved in May 2004. Plaintiff ultimately filed a Form 18M in January 2006 signed by the treating physician. Defendants objected to the Form 18M and the matter was referred for a hearing. At the hearing, plaintiff acknowledged that he had not returned to his treating physician since August 2003 or any other physician with respect to his knee. Plaintiff also testified that he had not taken any medications for his knee since the last time he saw his treating physician. Plaintiff's supervisor testified that he had worked with plaintiff and had not seen any problems in plaintiff performing his job. Plaintiff's treating physician testified that when he signed the Form 18M he did not have the information that plaintiff had not been having problems and had not needed medical treatment for the knee since August of 2003. Based on the additional information, the treating physician testified that plaintiff was not at a substantial risk of needing future medical treatment, although he was still at some risk based on the injuries and surgery and characterized any risk as moderate or even lower. The Deputy Commissioner found that the evidence presented showed that there was not a substantial risk of the necessity of future medical compensation for the knee injury and denied future medical treatment. Plaintiff did not appeal.

DAVID RHOADES (Raleigh) successfully defended a workers' compensation claim. The plaintiff was a temporary employee employed by a temporary employment agency. Mr. Rhoades represented the Company to which plaintiff was assigned to work. Plaintiff had worked for the Company for about a year. The Company approached plaintiff about being hired as a full time employee. The Company usually hired full time employees from the temporary workers. The process for hiring someone full time included a pre-employment physical and drug screen by the Company's approved physician. The physical was scheduled by the Company on plaintiff's personal time and plaintiff had to provide her own transportation. If the pre-employment physical was passed, the Company would then make a final determination to hire and additional paperwork would be signed at that time. Until then, plaintiff was not a full-time employee and was still a temporary employee of the temporary employment agency. There were occasions when employees were not hired, even after passing the physical. Plaintiff went to the physical and upon returning from the pre-employment physical, plaintiff was involved in a motor vehicle accident and was injured. The temporary employment agency acknowledged that injuries arising out of work of the Company were covered for workers' compensation by the temporary agency. The Company argued that they did not have workers' compensation coverage for the injury as there was no employer-employee relationship. The Deputy Commissioner found that there was no employment relationship between the Company and plaintiff and no conditional offer of employment had been made. He found that plaintiff was an employee of the temporary employment agency. The Deputy found that the pre-employment physical furthered plaintiff's employment with the Company and therefore was covered by the workers' compensation coverage provided by the temporary employment agency. The Deputy Commissioner found that the Company benefited from the hiring of temporary workers and specifically from plaintiff's activity in that they could find good employees to hire through the temporary employment agency. The temporary employment agency benefited as the process where the Company could hire the temporary workers prolonged the business relationship between the two companies. Also the temporary agency benefited as it made the agency more attractive to other workers in that the temporary positions could turn into permanent positions with the Company. The temporary employment agency will likely appeal.

JONATHAN ANDERS (Raleigh) successfully settled a workers' compensation claim that involved the Industrial Commission and the Attorney General's office. An Employer/Owner had been in business as a pet shop since 1979 without workers’ compensation coverage. His agent in 1979 told him he did not need workers’ compensation coverage as he was licensed by the Department of Agriculture, and did not have 10 or more employees (G.S. 97-2 provides agriculture employers are not required to carry workers’ compensation insurance unless there are 10 or more employees). Years later, a different insurance agent wrote the employer’s business liability coverage but never suggested workers’ compensation insurance. In 2005, an employee fell and broke her wrist. Her average weekly wage was approximately $100. She was offered light duty at the cash register but said she could not perform the same with her left hand only. She never returned to work and never again had any contact with the Employer until she hired an attorney in 2006. The attorney recently withdrew as her attorney. The Industrial Commission set the case for hearing on its Non-Insured docket and the Attorney General's Office got involved on the issue of the penalty for being non-insured. The Employer contacted the Attorney General's Office immediately upon notice of his non-insured status and promptly obtained coverage. The plaintiff had a bad back, bilateral carpel tunnel syndrome, and residual wrist problems. She claimed she had not returned to work with any employer since June of 2005. The Attorney General could have assessed a penalty in excess of $90,000 as it could document no coverage dating back to 2002. Mr. Anders met with plaintiff at the hearing, as well as with a Deputy Attorney General, and a Deputy Commissioner. Prior to hearing, Mr. Anders settled the workers’ compensation case with the plaintiff for $1,000 plus payment of unpaid medical expenses and obtained informal approval of this settlement from the Deputy Commissioner in the plaintiff's presence. Mr. Anders then obtained the Deputy Attorney General's agreement to reduce the penalty to $1,500, all to the relief of the Employer.

VAN BARNETTE (Raleigh) prevailed in a bench trial in a motor vehicle case. Plaintiff suffered injuries as a result of a collision with a vehicle which crossed the center line on a two-lane road. Defendant alleged that the plaintiff was contributorily negligent for failing to operate his headlights after sunset. Defendant presented evidence from eyewitnesses that the accident occurred at approximately 5:45pm on a December evening. The defendant testified that he felt it was dark enough to require headlights. One witness testified that she "flashed" the plaintiff to warn him to turn on his headlights just moments before the collision. The witness testified that she had her headlights on and almost did not see the plaintiff. Mr. Barnette also cited a North Carolina statute requiring that headlights be operated from sunset to sunrise along with information from a local airport confirming that sunset had occurred at approximately 5:12pm that day. Therefore, plaintiff was operating his vehicle without headlights more than 30 minutes beyond the statutorily required time. The judge found that plaintiff was contributorily negligent and was therefore denied any recovery.

NORWOOD BLANCHARD, III (Wilmington) obtained summary judgment in favor of a local Town and its Police Chief in a wrongful termination lawsuit brought by an officer who was discharged from the Town’s police department. The officer claimed that he was discharged in retaliation for speaking with a newspaper reporter about a potential wage and hour lawsuit against the Town and for accusing a Town Councilman of wrongfully accessing the personnel files of certain Town employees. After conducting a hearing, the U.S. District Judge ruled that the plaintiff’s First Amendment rights had not been violated and granted summary judgment in favor of the defendants.

NORWOOD BLANCHARD, III (Wilmington) obtained a favorable ruling in another wrongful termination lawsuit against a local Town brought in federal court by a former police officer. The plaintiff, a white male, was terminated after being caught at a female friend’s home several miles outside of Town late at night, while he was on duty. He filed suit claiming, among other things, that his constitutional right to equal protection was violated because the Town had arbitrarily punished him more severely than other officers whom he claimed had engaged in allegedly similar misconduct. Mr. Blanchard filed a motion to dismiss that equal protection claim, asserting that the plaintiff’s own allegations showed that his termination was not “arbitrary” in any constitutional fashion. The U.S. District Judge agreed and granted the Town’s partial motion to dismiss.

LARRY BAKER (Charlotte) successfully defended a claim for back injury where the plaintiff testified he sustained an initial injury, followed by a second injury two weeks later. The Deputy Commissioner determined that plaintiff's allegations were not credible because plaintiff had prior back problems and did not report the second incident.

PAT FLANAGAN (Charlotte) and RYAN BOLICK (Charlotte) obtained summary judgment in favor of a municipality in a case in which two subcontractors died while working on a water line project owned by the municipality. The estates of the subcontractors filed claims for wrongful death alleging that the municipality was negligent in failing to follow appropriate safety procedures and standards and that the municipality was strictly liable under Chapter 143 of the North Carolina General Statutes due to its alleged failure to discover underground storage tanks near the site of the subcontractors’ deaths. Prior to the dismissal of these claims, plaintiffs’ counsel sought damages in this suit in excess of $10 million.

RYAN BOLICK (Charlotte) obtained summary judgment in favor of a corporate defendant and its employee. Defendants complained to plaintiff and her employer regarding her poor work performance over a period of approximately six months. As a result of these complaints, plaintiff was removed from her position. Plaintiff sued defendants for defamation per se, tortious interference with contract, punitive damages and unfair and deceptive trade practice. In dismissing the action, the judge found that the complaints were not made with malice and that defendants were privileged to make such statements as they were made to protect a business interest.

RYAN BOLICK (Charlotte) and BRAD KLINE (Charlotte) obtained a dismissal on behalf of a municipal client in the Middle District of North Carolina Federal Court. Plaintiff alleged she had been discriminated against based upon her sex and retaliated against because she complained about a violation of her civil rights. In dismissing plaintiff’s Title VII claims, the Court held that it did not have subject matter jurisdiction over the claims filed as plaintiff failed to file her lawsuit within ninety days of the issuance of a Right to Sue letter as required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.

MELODY CANADY (Charlotte) successfully argued and obtained dismissal as a matter of law at the pleading level of the majority and most serious of fifteen claims against a volunteer fire department and one of its members individually in an action brought by a former member. Among the claims dismissed were breach of contract, blacklisting, negligent supervision and retention, wrongful discharge, and intentional infliction of emotional distress.

MELODY CANADY (Charlotte) and LEE POOLE, JR. (Charlotte) obtained a dismissal of all claims against the manufacturer and distributor of cranes, which were allegedly defective. The plaintiff alleged violations of the Uniform Commercial Code as well as products liability claims. The defense filed a pre-Answer Motion to Dismiss arguing statute of limitations defenses and plaintiff's failure to state any claim for relief. Based on the brief and oral arguments, the court granted the defense's motion and dismissed the case with prejudice.

COLLEEN SHEA (Wilmington) and MEREDITH BERARD (Raleigh) won an appeal at the Court of Appeals in a nursing home medical malpractice case. Due to out of state counsel for plaintiff's egregious discovery violations and failure to properly designate her expert witnesses, Colleen filed a Motion to Strike Plaintiff's Expert Witnesses. The trial court allowed the Motion to Strike and also sanctioned counsel for plaintiff for a sum over $26,000 in costs and fees. The plaintiff then appealed the Order to the Court of Appeals. MEREDITH BERARD submitted an outstanding brief outlining the history of the matter and vigorously argued for the lower court's decision to be affirmed. On December 5, 2006, a unanimous panel agreed and affirmed the lower court's sanctions.

COLLEEN SHEA (Wilmington) obtained Summary Judgment in a wrongful death medical malpractice case against an area hospital. The plaintiff alleged that the hospital nurses were negligent for failing to keep the physicians informed of the plaintiff's declining condition which resulted in the plaintiff developing necrotizing fasciitis, being hospitalized for six months and eventually passing away. Colleen was able to demonstrate that the plaintiff's experts were not qualified to give standard of care opinions against the hospital and was that the co-defendant physicians were not agents of the hospital. The Court granted our Motion for Summary Judgment and the case was dismissed.

COLLEEN SHEA (Wilmington) and BO WALKER (Raleigh) obtained an early Voluntary Dismissal from a plaintiff in a premises liability action against a local health care provider. An elderly patient fell sustaining serious injuries. Colleen and Bo were able to aggressively address discovery issues presented by plaintiff early in the lawsuit and prior to being heard on a Motion for Summary Judgment, the plaintiff dismissed the lawsuit.

JOHN MARTIN (Wilmington) and REGAN TOUPS (Wilmington) were granted Summary Judgment in a Section 1983 case filed by a prisoner against a number of individuals, including the prison's physician. The prisoner claimed the physician denied him appropriate and timely medical treatment for his ongoing complaints of back pain following a back injury. The federal court granted the Motion and dismissed the action, which was affirmed by the Court of Appeals.

NORWOOD BLANCHARD (Wilmington) and ROBERT JONES (Wilmington) obtained Summary Judgment in Federal Court on behalf of a county government in collective action in which Plaintiff class claimed that the county had not paid them appropriate overtime in violation of the Fair Labor Standards Act.

HOUSTON FOPPIANO (Raleigh) and MEREDITH BERARD (Raleigh) were able to get a significant ruling in the North Carolina Business Court. The plaintiff sued under the Telephone Consumer Protection Act, alleging that the defendant violated the act by sending him an unsolicited advertisement by fax. The act provides statutory damages of $500 for each violation, which can be trebled to $1500 if the violation was willful and knowing. More importantly, the plaintiff sought to have the case certified as a class action, claiming that the class should be comprised of all 4800 owners of fax numbers to whom the fax was sent. If certified, the class could have exposed the defendant to a potential judgment of $2.4 million, or $7.2 million if the damages were trebled. However, after extensive briefing and oral argument, Judge Albert Diaz of the North Carolina Business Court denied the plaintiff's Motion for Class Certification in a 20-page opinion.

BOB SUMNER (Raleigh) and GLORIA BECKER (Raleigh) successfully defended a trucking company in a 2 week jury trial and obtained a defense verdict against a construction company's workers' compensation lien and property damage claim arising out of a highway construction workplace accident.

DONNA RASCOE (Raleigh) prevailed in a motion for a preliminary injunction in federal district court. In a long-running dispute with a school district, the parents of a disabled student sought an injunction requiring the district to fund a private residential placement for the student pending the outcome of an underlying lawsuit. The parents have contended for some time that the school district failed to provide appropriate special education services and that the district should therefore pay for a private placement. In this preliminary injunction motion, the parents offered letters from several physicians and two expert witnesses asserting that the student would suffer irreparable harm if he was not placed in the parents’ chosen program. In response, the school district offered the testimony of its teachers, therapists and administrators who explained that the student’s educational needs could be met in the district and that any difficulties the student was having was caused by the parents’ prior lack of cooperation with the school district, including their decision to remove him from school. Judge Bill Osteen of the Middle District of North Carolina ruled in favor of the school district and denied the parents’ request for a preliminary injunction placing the student in the private facility.

BILL POLLOCK (Raleigh) and JENNIFER WELCH (Raleigh) just won at the Court of Appeals in a case where the trial court had stricken our employer negligence defense from our answer in a wrongful death case.

• The court of appeals case was a wrongful death case where our client was sued by an individual allegedly killed while working on a job on which we were a subcontractor. The plaintiff/employee's family was paid workers' compensation benefits by his employer, so we alleged the employer's negligence in our answer under NCGS 97-10.2, which, if successful, would entitle us to an offset in the amount of the workers' compensation benefits paid.
• The employer "waived" its subrogation lien according to a Compromise Settlement Agreement approved by the Industrial Commission, but then entered into a separate agreement with the administratrix of the estate, whereby the employer stood to recoup $12,500 in the event the estate recovered against us (the third party). The employer moved to strike our employer negligence defense, claiming it had waived its lien, therefore, there could be no offset under NCGS 97-10.2. The trial court granted the employer's motion and struck our employer negligence defense from the answer, effectively preventing us from possibly getting a reduction in any damages awarded against us in the amount of $92k.
• We appealed the decision to the Court of Appeals, and the trial court's decision was reversed in a unanimous decision.
  As to the Summary Judgment, the plaintiff allegedly fell in a hole on our client's property and sustained personal injuries which she claimed made her totally disabled. Plaintiff indicated she was seeking $150k from our client for her injuries.
• We moved for Summary Judgment on the basis that our client did not own or occupy the property on which plaintiff allegedly fell, therefore plaintiff failed to establish that the defendant owed her a duty of reasonable care. We further moved on the basis that, even if we did owe a duty of care, plaintiff presented no evidence that we created the allegedly dangerous condition, or that we knew or should have known about the condition and failed to do anything about it. The trial court granted our Summary Judgment motion and the case was dismissed.

VAN BARNETTE (Raleigh) won a Motion to Dismiss for lack of subject matter jurisdiction in the U.S. District Court for the Eastern District of North Carolina. Plaintiff, a North Carolina resident, alleged that the defendants (a fast food restaurant franchise owner and a well known fast food chain corporation) were negligent in connection with preparation of food products which led to plaintiff finding a bloody band-aid in his cheeseburger sandwich while dining in a fast food restaurant in Virginia. Because of defendants’ alleged negligence, plaintiff claimed that he suffered physical and mental injuries (including possible exposure to HIV/AIDS) and requested damages in the amount of $2 million in his complaint. Defendants moved for a dismissal arguing that while the restaurant itself existed in Virginia, the franchise owner was a North Carolina corporation. Therefore, defendants argued that complete diversity did not exist in the case and that federal jurisdiction was improper due to the franchise owner defendant being a North Carolina corporation. Plaintiff attempted to defeat the motion to dismiss by dismissing its case against the North Carolina franchise owner while maintaining its case against the national fast food chain. The court was not persuaded by this action and agreed with defendants’ argument that plaintiff’s complaint clearly established that the court lacked jurisdiction and that the plaintiff could not repudiate its own pleading by attempting to dismiss his case against an essential party. The case was subsequently filed in North Carolina state court where the case against the national fast food chain was dismissed base upon evidence that it was not a real party in interest.