How to Sue a City for Negligence

There may be many reasons why a city – a municipal government – may be responsible for a person’s injury. Someone may slip and fall on a wet floor in a city building or on an uneven sidewalk at a city park. A city employee might cause a car accident. A driver may hit a pothole on a city street and damage their car.

State and local governments are typically shielded from liability for accidents thanks to the doctrine of “sovereign immunity,” which dates to British common law.

Under certain circumstances, local governments in North Carolina may waive sovereign immunity. By purchasing liability insurance, a local government may waive its sovereign immunity up to the limits of the policy, depending on what exclusions the insurance policy contains. How the exclusions apply is often a point of dispute.

Our attorneys will analyze whether the local government was engaged in a governmental function or a proprietary function at the time the injury occurred. This is an important distinction when considering a lawsuit against a local government.

If you have been injured in an accident, and you believe a municipal employee, program, or department caused the accident, you should speak to a personal injury lawyer at Younce Vtipil Baznik & Banks in Raleigh. An attorney can evaluate the facts surrounding your injury and discuss whether filing a claim against the city or another local government is an appropriate step. If so, we can make sure your injury case is supported by evidence and that your claim complies with all notification and filing requirements.

How to Seek Damages from a City in North Carolina

In most cases, your first step after being injured on city property or by a city employee is to file a claim with the city government, describing the incident and your injury. You will want to provide as much information as possible including a police report, if available, photos of the damage, and an estimate of your expenses. Depending on the city’s size or organization, the complaint may go to the city attorney’s office or to a risk management administrator.

There will be a deadline for submitting your complaint and specific forms you must complete. You should contact an attorney without delay to discuss the situation.

Once you’ve filed a complaint, the city may:

•  Investigate the claim and determine the city’s liability
•  Ask you for more information
•  Accept your claim and pay the compensation you seek
•  Deny your claim

In most cases, the city will deny the claim. Even the thousands of pothole damage claims filed in North Carolina each year are usually denied. If your evidence is strong, the city may try to negotiate a settlement. An experienced attorney at Younce, Vtipil, Baznik & Banks can submit your claim with supporting evidence and negotiate on your behalf.

If you cannot reach a settlement, you may pursue your claim with a formal lawsuit. You must file the lawsuit within the period allowed by the statute of limitations.

In North Carolina, a personal injury lawsuit must be filed within three years of the injury date and a wrongful death suit must be filed within two years. This is not as long as it seems, given the time required to investigate and prepare a complex lawsuit. If you wait until just a few months before the statute of limitations runs to find an attorney, you may have a hard time finding a good lawyer willing to handle your case. Normally, you need to find a lawyer within at least a year before the statute of limitation runs.

Filing a Lawsuit Against a North Carolina City

Local governments in North Carolina have maintained immunity from lawsuits when the act in question occurred while the government or its employee was performing government functions. But local governments are not shielded from injury lawsuits if the local government organization was engaged in a proprietary activity. This is an activity not traditionally performed by a government agency or that is commercial (a fee was charged) or chiefly for the benefit of a specific group rather than the entire community. Operating a golf course may be considered a proprietary function, for example.

The distinction between government functions and proprietary functions can be difficult. It requires a close analysis of the facts. Because there is no bright-line standard, a court hearing, and often appeals, may be required to determine whether the defendant in your claim was engaged in a proprietary activity when you were injured.

Need a Lawyer to Sue a City? Contact Us Today

If you have been injured because of negligence on the part of a local municipality, you should seek legal guidance about your options. The attorneys at Younce Vtipil Baznik & Banks can review the circumstances of your case for free. If we proceed with your case, we will work on a contingency fee basis. You will not owe any legal fee unless and until we recover damages for you. Contact us online or call us at 919-661-9000 for your FREE, no-obligation consultation today.

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Common Misconceptions About NC Personal Injury Claims

We often hear from prospective clients that they “aren’t the type to sue,” but they are meeting with us because they believe they have been wrongly injured by someone, and they’ll face financial harm if they don’t do something. That is really why you should speak to a personal injury lawyer – for assistance making up for the serious injuries and financial harm you have suffered due to someone’s negligence or recklessness.

After a car accident, a slip and fall or other types of accident that has caused you serious personal injuries, the attorneys at Younce, Vtipil, Baznik & Banks, P.A. can help you seek compensation for medical bills, lost wages and more, including for your pain and suffering. It doesn’t always require a lawsuit.

Below we address some common myths and misconceptions about North Carolina personal injury claims. One thing we hope is clear is that your initial consultation with Younce, Vtipil, Baznik & Banks regarding personal injury is always free. Contact us now and we can answer your questions and outline how to proceed with a claim for compensation.

5 Top Myths About Personal Injury Cases in N.C.

1. It costs too much to hire a personal injury lawyer.

As personal injury lawyers, we handle cases on a contingency fee basis. This means our fees are contingent upon winning the case. If we do not win your case, we will not charge you a legal fee. All of this is in writing.

If we recover money for you – either by negotiating a settlement or winning a jury verdict – we will retain a pre-determined percentage as our legal fee and to pay expenses incurred to prepare your case such as ordering medical records, filing fees, or hiring court reporters).

When you hire Younce, Vtipil, Baznik & Banks, P.A. as your legal representatives, we will go over the contingency fee arrangement with you. A contingency fee allows you to obtain legal representation without paying money upfront.

2. Winning a personal injury claim is a way to get rich.

When we pursue a personal injury claim, we work to recover the maximum amount of compensation available for our client. But our guiding objective is to ensure that our client does not suffer lasting financial harm from the injuries someone else has caused.

A personal injury claim in North Carolina may allow you to recover compensation for:

• Medical expenses
• Lost income
• Property damage
• Pain and suffering, including:
  • Emotional distress
  • Loss of enjoyment of life

Much of what is recovered in a claim goes to pay medical bills. Money for lost income is money our client would have earned had he or she not been injured.

The compensation available is often limited by the defendant’s insurance coverage limits. For example, the minimum auto insurance liability coverage in North Carolina pays up to $30,000 bodily injury for each person, $60,000 total bodily injury for all persons in an accident, and $25,000 for property damage.

When high-dollar settlements or jury awards make headlines, the plaintiff typically was young and suffered a permanent and fully disabling injury or has lost a loved one in a wrongful death accident. The highest jury verdicts often go mostly uncollected because the verdict amount is far above the liability insurance limits. No one gets rich off personal injury or wrongful death cases.

3. It would be a shame to ruin them or their business with a lawsuit over an accident.

Almost all personal injury claims are paid by insurance companies and not directly by the individual responsible for the accident. Insurance exists because accidents happen, and the costs of a serious accident cannot usually be paid out of pocket. This is why car owners in North Carolina and most other states are required to maintain a minimum amount of auto liability insurance. Businesses loans and mortgages usually require the borrower to have liability insurance.

Often a personal injury claim consists of conducting a preliminary investigation, gathering evidence such as medical records, medical bills, lost wage documentation, photos, etc., submitting a demand to the insurer, and negotiating a settlement acceptable to our client. Most people who cause accidents expect their insurer to do the right thing for someone injured through no fault of their own.

4. A lawsuit means I’ll have to go to court and live through it all again.

Most personal injury cases are settled through negotiations, without a trial. Very few cases go to trial because of the added time, expense and risk. Negotiating a settlement avoids the unpredictability of a trial outcome and allows our client to receive compensation sooner.

Cases go to trial when the facts are disputed and the insurer sees an opportunity to avoid a payout. But in most cases, what happened and who is at fault can be proven.
If we must take your case to trial, we will make sure you understand and are prepared for what is likely to happen every step of the way.

5. Winning a personal injury lawsuit is a sure thing.

The attorneys at Younce, Vtipil, Baznik & Banks, P.A. only pursue a case when we believe the injury claim is valid and supported by the evidence. But even so, there are no guarantees about the outcome. This is especially true if a case must go to trial, where North Carolina has strict rules for awarding compensation. We do not file a lawsuit unless we have consulted with you and obtained your permission first.

North Carolina personal injury law operates under what’s known as a “pure contributory negligence” doctrine, which is a strict standard. If the injured party is in any way at fault for their injury, they cannot recover compensation.

We investigate, weigh the facts, and move forward with demands to the insurer according to the evidence in your case.

Contact a Raleigh Personal Injury Attorney for Answers After an Accident

If you have suffered harm because of someone else’s negligence or recklessness, you deserve to be fully compensated for your losses. Younce, Vtipil, Baznik & Banks, P.A. will investigate to find out what happened and why. Our attorneys will fight for the compensation you are due. Contact us online or by phone for a free, no-obligation consultation and let us get started finding answers for you.

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How Do You Know It’s Time to Divorce?

Many people have difficulty reaching the decision to get a divorce, even when it’s the right thing to do. It represents a huge loss. Some people consider divorce a personal failing, though in fact it’s a positive step in many situations. Anyone considering divorce is right to take the time necessary to make sure it is the proper step for you to take and to weigh its impact on any children of the marriage.

There are telltale signs that it’s time for a divorce and some steps you should consider before you seek a divorce. Below, we look at how you can know when it’s time to seek a divorce. The North Carolina family law attorneys of Younce, Vtipil, Baznik & Banks, P.A., have helped many people in Raleigh and central North Carolina change their lives for the better by assisting them with divorce and separation agreements, child custody arrangements, and other issues surrounding divorce.

If you’ve concluded that divorce is the answer to your unhappiness, call Younce, Vtipil, Baznik & Banks at (919) 351-8827 or reach out to us online to schedule a consultation.

Why and When to Consider Divorce

Marriages ebb and flow. As newlyweds become parents with families and then transition to empty nesters and eventually retirees, individuals’ needs, desires, and outlooks invariably change. Some couples grow apart although nothing, in particular, has gone wrong. It has been said that marriages don’t break; they erode over time as one or both partners’ needs go unmet.

In other cases, some action on the part of one spouse or both breaks the bond and wrecks the marriage. From relationship experts to academic studies to our own experience as divorce attorneys, we see the most common specific causes of divorce again and again:

• Infidelity
• Overwhelming financial problems
• Domestic violence
• Substance abuse
• Emotional trauma, such as a major illness or death of a child
• Ongoing conflict and irreconcilable differences.

We have found that when a couple is headed to divorce, one or the other spouse is continually unhappy or has lost respect for the other. They feel like they don’t find support for their goals or values.  In many cases, physical attraction to one another and intimacy are just a memory.

Couples who are fighting often find themselves returning to the same old hurtful issues repeatedly or hurling increasingly mean insults

In marriages such as these, if marital counseling has not improved the situation, it may be time to consider separation and divorce. No one should have to endure constant unhappiness, hurt, anger, fear, or loneliness.

Can My Marriage Be Saved? Things to Consider Before Divorce

Divorce can be an emotionally draining process. It can have negative financial consequences, as well. On the other hand, there are health advantages to being married — especially for men. Any couple should want to fight to preserve their marriage, except in situations involving an abusive relationship (which we can help you escape),

North Carolina divorce law gives a married couple time to consider their prospects for staying together before they may obtain a divorce. North Carolina is a no-fault divorce state, meaning you do not have to prove infidelity, abuse, or any other reason to end your marriage. But divorce is only available after a one-year separation. This means the couple must live apart for at least 12 months before being eligible to receive an absolute divorce.

A period of separation from your spouse provides time to consider what divorce will mean to your life. At the end of the separation, you should have a better idea of what you each want.

During or before a separation, you should consider:

• You might work with a marriage counselor or a religious leader and may seek counseling together or on your own. A qualified counselor will make you feel safe to open up about the issues affecting your marriage and help you cope with the emotions that arise. He or she should help you learn to talk to each other with positive results instead of causing additional strife. At the least, you should come to understand your marriage better.
• Specific problem areas. Can you identify the issues that are driving you apart? If you can agree on the problem issues, then you may be able to work on or even resolve them. Here’s an exercise: each of you should make a list of what you think you need to do to save the marriage and then a list of what your spouse needs to do. Compare and see where there is agreement and an opportunity to work on your marital problems.
• Financial impact. North Carolina law requires an equitable division of marital assets as part of a divorce. This means money, retirement accounts, insurance, and personal property, as well as your debts, will be divided between you (with allowances for need and ability). For most people, it means a significant change. Make a list of your assets and debts and consider meeting with a financial adviser and a lawyer to get an idea of what a divorce will cost you.
• Is there any love left? Some couples fall out of love because they let it happen. Busy careers or divergent interests keep them apart. One day they realize they don’t mean that much to each other. Before splitting up, take some time to be together and see whether what you use to feel for each other can be rekindled. Try a couple of evenings at places you enjoyed early in your relationship. If that works out, maybe a weekend away and then a longer vacation, all focusing on the two of you as a couple. You’ll know quickly whether this is a path to pursue.

Our Raleigh Divorce Lawyer Can Help

It’s unfortunate, but some marriages should come to an end. When handled correctly, a divorce can lead to a better life for each spouse. If you live in the Raleigh, NC, area and see the signs that it’s time for a divorce, contact the Raleigh divorce attorneys at Younce, Vtipil, Baznik & Banks. Schedule a consultation about your legal rights and options and the experienced and skilled legal representation we can provide to you.

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Division of Unvested Restricted Stock Units During Divorce

RSU in Divorce

Many companies in the Triangle offer shares of restricted stock to attract and retain employees. The restricted stock units, or RSUs, are redeemable after the employee has worked at the company a certain number of years or met certain performance goals.

The value of RSUs can become an issue when considering the equitable division of marital property in separation and divorce—especially if the RSUs are unvested. The value of a new company’s stock can fluctuate considerably. If the employee is not vested in the stock plan, it can be challenging to determine the fair value of unvested restricted stock units.

The divorce lawyers at Younce, Vtipil, Baznik & Banks work to protect clients’ financial interests as they go through separation and divorce and divide marital property. If you or your spouse has unvested RSUs that are considered a part of marital assets to be divided, we can help you with strategies for meeting the requirements of North Carolina divorce law in a manner that benefits you.

What Are Restricted Stock Units?

A restricted stock unit is a financial share in the issuing company, like any other company stock. The shares are “restricted” because they only attain value when the holder becomes vested in the stock plan and cannot be sold or traded beforehand.

By issuing RSUs as part of a compensation package and requiring years of employment or certain job performance milestones for the stock to attain value, employers use RSUs as an incentive to retain talent. Vesting may occur all at once (100% vested) or in stages, such as 40% of issued shares vesting at three years of employment and 100% at five years.

If an employee leaves the company before they are vested, they usually forfeit any unvested RSUs issued in their name.

Restricted stock units are typically issued over time and are assigned a fair market value when they vest. They are then counted as income, and a portion of the shares is withheld to pay the holder’s income taxes. The employee receives the remaining shares and is free to sell the shares or hold onto them in hopes that their value will increase. In publicly held companies, RSUs may convert to common shares of stock upon vesting.

Because RSUs have no real value until they vest, startups can issue them without immediate expense while capital is dedicated to building the new company. If the company fails, the value of the RSUs and the amount the company must pay out falls accordingly.

How Unvested RSUs Impact Your Separation Agreement and Divorce

One of the most contentious issues in a divorce is often the equitable division of marital property. The presumption is that the net marital estate will be divided in a manner that ensures each party receives a fair share. The marital estate is based on the total value of the assets and debts held jointly by the divorcing spouses.

In North Carolina, both vested and non-vested stock options are subject to distribution. If one spouse has been issued unvested restricted stock units, their disposition will become part of the separation agreement. This requires determining whether the unvested RSUs are marital property, and if they are, their value, and then how they are to be divided.

Are RSUs marital property?

Marital property is assets acquired during the marriage. RSUs are granted to an employee for specific periods of work or for performance during a specific period. If some of the unvested RSUs held in a spouse’s name were for periods before the marriage or after the date of separation, they could be excluded from marital property subject to distribution.

We would expect the judge hearing a separation agreement to look at the period the RSU was issued for, not the date of issuance. For example, if RSUs are accrued annually and issued each January but the couple separated September 30, two-thirds of the first RSUs issued after the marriage ended should still be considered marital property.

We would seek the spouse’s employment contract, employee handbook, and other documents to determine how restricted stock options are issued and the number of units issued in each grant of RSUs received so far.

How do you value unvested RSUs?

Obviously, the spouse who is to receive proceeds from their estranged spouse’s unvested RSUs wants them valued higher and the spouse holding the RSUs wants them valued lower at this point in time.

The simplest thing to do is to come to an agreement on a value. If other employees’ shares have vested, the company may be able to state a recent stock value. If the company is publicly traded, you could go by the current value of common shares, as well as financial statements.

If the company cannot provide helpful documentation, determining the potential value of unvested RSUs may require the services of a forensic accountant.

One valuation method, the Black-Scholes formula, produces a theoretical estimate of the value based on derivative investment instruments. Another approach common in North Carolina is the “coverture fraction,” typically used to value qualifying retirement plans. This formula divides the length of time a spouse was simultaneously married and earning stock options/units by the total length of employment during which the options/units were earned.

How do we divide unvested RSUs in a divorce?

There are two ways to divide RSUs once we have agreed to their worth:

• Buyout. The spouse who earned the RSUs keeps them and pays the other spouse half of the agreed-upon value.
• Deferred division. The spouse who earned the RSUs holds them until fully vested and then sells them and splits proceeds with their former spouse.

Neither choice is without risk. The spouse who agrees to a buyout could watch with no recourse as the value of the stock soared afterward. While waiting for a deferred sale, the company could go under or the spouse could become separated from the company before being vested.

Because the value of unvested RSUs is up for negotiation, another approach is to find another asset to give or receive in lieu of a stake in the unvested RSUs.

Contact Our Equitable Distribution Divorce Attorneys

There are multiple factors to consider when dividing restricted stock or other marital assets during a separation and divorce. The experienced Raleigh divorce attorneys at Younce, Vtipil, Baznik & Banks, P.A., can help you weigh all of your options and introduce you to strategies to protect your financial interests.

Contact us today at 919-661-9000 or schedule a free consultation online about how we can assist you.

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What You Need to Prove in a Slip-and-Fall Case

Every year, millions of people slip and fall in accidents and hurt themselves. One out of five falls causes a serious injury, such as a broken bone or a head injury. Falls are the most common cause of traumatic brain injuries (TBIs) and cause 95% of hip fractures. Both brain injuries and broken hips may be permanently disabling.

When a slip-and-fall accident occurs because of unsafe conditions on another person’s property, the individual injured may be entitled to seek compensation from the negligent property owner. Property owners have a legal obligation to take reasonable steps to maintain their property to protect anyone who legally visits their premises. When a property owner shirks his or her responsibility and someone is injured as a result, the property owner may be financially liable for the injured person’s medical bills and related losses.

If you have been seriously injured in a slip-and-fall accident caused by someone else’s negligence, you may seek compensation for your medical expenses and more. To recover a settlement, you will need to prove the property owner was at fault and caused your injury. The slip-and-fall accident lawyers of Younce, Vtipil, Baznik & Banks, P.A., can help you pursue a slip-and-fall accident claim in Raleigh and the surrounding areas.

How To Prove Negligence in a Slip And Fall

In a slip-and-fall claim, the injured person must prove the defendant’s negligence, or fault, for their injury. Under North Carolina’s strict rules, the injured person cannot recover compensation if he or she did anything to contribute to the accident.

To prove a defendant’s negligence, a plaintiff must show:

• The defendant had legal responsibility for the safety of the injured person
• The defendant breached that duty by failing to keep up the property or address an unsafe condition
• The breach of duty caused the plaintiff’s injury
• The defendant should have foreseen the likelihood that someone would be harmed by their action or failure to act
• The injury resulted in compensable costs and losses.

A slip-and-fall accident claim states that the injured person fell and sustained an injury on the property because of a hazard the property owner knew existed or should have known existed and failed to correct or warn about in a timely manner.

For a successful claim, you will need to gather evidence to show that the property owner or property manager:

• Breached his or her duty to keep the premises safe for legal visitors by causing or allowing a hazard to exist within the building or on the grounds
• Should have known about the hazard
• Or was aware of the hazard but did nothing to address it
• Or took inadequate steps to mitigate the hazard or warn visitors about it
• The hazard caused the plaintiff to fall
• The fall caused the plaintiff physical and/or mental injury, which resulted in compensable damages.

The injured person’s claim for compensation would go to the defendant’s insurance company, which would determine whether to pay the claim and, if so, how much to offer to settle it. In addition to outlining evidence of the property owner’s liability, a demand letter would state the compensation owed to the plaintiff. The amount paid may be subject to negotiation.

To have the best chance of success, an injured person should enlist the help of an experienced Raleigh slip-and-fall injury lawyer to gather evidence, develop a persuasive case and negotiate with the insurance company for a just settlement.

Compensation Available in Slip-and-Fall Cases

Compensation paid in a slip-and-fall claim is meant to make the injured person financially whole. Settlements are often thought of as economic damages (for quantifiable costs such as medical bills and lost income) and non-economic damages (for intangible losses such as emotional suffering).

Compensation recovered in a slip-and-fall case may include money for:

• Medical expenses related to the injury, including emergency room treatment, surgery, costs of rehabilitation, assistive devices such as crutches or a wheelchair, or nursing or personal assistance
• Lost wages during time away from work
• Diminished earning capacity in cases of ongoing disabilities
• Pain and suffering
• Emotional distress
• Future medical costs if your injuries will require ongoing medical care
• Loss of enjoyment of life
• Loss of consortium

A demand letter to an insurer or a formal lawsuit would state the amount of compensation sought. To determine the appropriate amount to seek, we would add up quantifiable costs and separately determine a figure for non-economic damages. Typically, noneconomic damages due are calculated as a multiple of economic damages, according to the severity of the injuries.

Evidence in Slip-and-Fall Cases

To win a slip-and-fall case, we must persuade the property owner’s insurance company or a jury that the property owner was at fault and the plaintiff was hurt through no fault of his or her own. Evidence may come from any combination of:

• Witness statements, from the accident victim, the accident victim’s companions or others who saw the accident, or employees who can testify about the condition of the property
• Accident reports filed with the property owner or business or by emergency responders
• Photos or video from security cameras or witnesses’ phones that may depict the hazard and/or the accident happening
• Property maintenance records that may indicate that the need for repairs was known but put off
• Expert witnesses who may testify about proper/improper maintenance or use of the property, and the connection between the dangerous property conditions and the plaintiff’s injury.

Showing That You Were Not Being Careless

An insurance company may attempt to show that the injured person was acting carelessly when the accident occurred and therefore contributed to his or her own injuries. If a property owner in North Carolina can show that the injured person contributed to the slip-and-fall accident in any way, then the victim is not entitled to collect compensation. The rule of thumb is that the property owner is not responsible for someone hurt by a hazard that a reasonable person would have recognized and known to avoid.

For example, if the injured person was not paying attention when he or she encountered a hazard that led to the accident, then the accident victim would have a weaker claim. This includes someone who was talking on a phone, texting or otherwise looking at a screen, turning to talk to someone or carrying objects that obscured the view of the hazard.

A property owner may post barriers or warning signs to mitigate a hazard they cannot remove right away. Their insurer may argue that these barriers or signs were adequate to alert a reasonable person to the danger. However, some warnings, such as a handwritten sign taped to a wall or a single yellow caution cone may not necessarily be adequate.

Property owners also are given some leeway to respond in a timely manner to a newly formed hazard, such as a spill in a grocery store or snow and ice on a sidewalk. If an accident occurred before the property owner had a reasonable opportunity to discover it and address the problem, a jury might be persuaded the property owner was not at fault.

Finally, an accident victim who was trespassing when he or she fell typically does not have a legitimate claim. However, different rules apply for children who are too young to understand the potential danger of certain situations.

Contact a Slip-and-Fall Attorney

If you have been seriously injured in a slip-and-fall accident that occurred on someone else’s property and was not your fault, you may be due compensation for your medical bills and losses. The personal injury lawyers at Younce, Vtipil, Baznik & Banks, P.A. in Raleigh, N.C., can investigate the accident to determine what compensation you are eligible to claim and aggressively pursue a settlement for you.

It is best to begin gathering evidence after a slip-and-fall accident as soon as possible. Contact us today for a free consultation with an experienced and compassionate North Carolina slip-and-fall lawyer. Phone 919-351-8757 or reach out online.

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Do I Need to Replace My Car Seat After an Accident?

Parents in North Carolina may have questions about whether to replace their child’s safety seat after a car accident. Faced with many childcare expenses, some parents may be reluctant to spend money on a replacement if the car seat doesn’t appear to be damaged.

Experts say car seats that are subjected to the stress put on them in car crashes can be damaged in ways that are not obvious. The National Highway Traffic Safety Administration (NHTSA) says you should always replace a child’s car seat after a moderate or severe crash. But car seats do not automatically need to be replaced after a minor crash, the agency says.

“The decision to replace a car seat after a crash generally depends on the manufacturer of the car seat and the severity of the crash,” says BuckleUpNC.org, a website maintained by the UNC Highway Safety Research Center. “The best way to determine if your car seats need to be replaced is to contact the manufacturer directly and explain the circumstances of the crash.”

Car Seats Save Kids’ Lives

The adequacy of your car seat is certainly an issue worth exploring.

The National Safety Council (NSC) says car crashes are a leading cause of death for children. In 2019, 608 children under age 13 were killed in motor vehicle crashes, according to the NSC’s Injury Facts. Of them, 206 children were unrestrained and many others were inadequately restrained at the time of the crash.

Properly securing children in car seats that meet federal motor vehicle safety standards goes a long way in keeping them safe. The NHTSA estimates that car seats reduce the risk of fatal injury by 71% for infants (younger than 1-year-old) and by 54% for toddlers (1 to 4 years old) in passenger cars. For infants and toddlers in light trucks, the corresponding reductions are 58% and 59%, respectively.

The American Society for the Protection and Care of Children says the use of car seats and safety restraints can reduce the risks children face by 50 to 70% when employed properly.

Does a ‘Minor Car Crash’ Indicate that a Car Seat is Still Safe?

The NHTSA says to follow the car seat manufacturer’s instructions regarding the replacement of the seat after a minor accident.

A minor car accident is one in which ALL of the following apply:

• The vehicle could be driven away from the crash site.
• The vehicle door nearest the car seat was not damaged.
• None of the passengers in the vehicle were injured in the crash.
• If the vehicle has airbags, the airbags did not deploy during the crash.
• There is no visible damage to the car seat.
• Some manufacturers say to replace a seat after any collision.

For example, the user manual for the Graco Snug Ride Classic Connect 35 infant car seat says, “Replace the infant restraint and base after an accident of any kind. An accident can cause damage to the infant restraint that you may not be able to see.”

A medically reviewed article on the Very Well Family blog says, “Even an empty car seat that was buckled into the vehicle will experience crash forces. The force of the car seat moving forward and being held back by the lower anchor strap or tether strap can cause damage that may be invisible but might keep the car seat from doing its job if you’re in another crash.”

The NHTSA used to advise replacing a child’s car seat after an accident but has modified its stance as described above. Very Well Family says the NHTSA changed its policy because some parents were buying used child seats after accidents to save money. Purchasing a used child safety seat increases the potential for having a seat with unrecognized damage.

BuckleUpNC says the best way to determine whether your car seat needs to be replaced is to contact the manufacturer directly and explain the circumstances of the crash. If you do not have the phone number for the manufacturer, BuckleUpNC offers a directory of Car Seat and Vehicle Manufacturers.

After an accident, some car insurance companies will reimburse policyholders for some or all of the cost of a new car seat. This is something to ask about when reporting your accident to your insurance company.

North Carolina’s Child Seat Law

The North Carolina Child Passenger Safety Law (G.S. 20-137.1) requires children younger than age 16 to be properly restrained in an age-, weight- and height-appropriate restraint. Passengers who are 16 and older are covered by the North Carolina Seat Belt Law (G.S. 20-135.2A).

• Children younger than age 8 who weigh less than 80 pounds must be in a properly installed car seat or booster seat when in a motor vehicle. When a child reaches age 8 (regardless of weight) or 80 pounds (regardless of age), a properly fitted seat belt can be used in place of a car seat or booster seat.
• Children younger than age 5 and who weigh less than 40 pounds must be restrained in the back seat if the vehicle has a passenger-side front airbag and has a rear seat.

Ambulances and other emergency vehicles and large buses are exempt from the law, as are cars made before 1968 and pickup trucks, SUVs, and vans made before 1972, which were not required to have seat belts when manufactured.

Do I Need a Car Accident Lawyer after a Minor Crash?

Along with contacting your car seat manufacturer following a minor car accident, you should see a doctor for an evaluation. There are injuries common to car accidents that do not exhibit symptoms right away, including some traumatic brain injuries.

If you or anyone in your car was injured and another motorist caused the crash, you should have a lawyer review the accident. You may have grounds to file an insurance claim against the driver who caused the accident. Contact Younce, Vtipil, Baznik & Banks, P.A., to set up a free legal consultation.

A car accident attorney from Younce, Vtipil, Baznik & Banks in Raleigh, N.C., can explain your legal options. If our law firm handles your claim, we will take care of all the legal issues involved in the accident so you can focus on your physical and emotional recovery. Take advantage of free legal advice to educate yourself. Phone 919-661-9000 now.

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How To File Lawsuit With No Money

It costs $200 just to file a Superior Court lawsuit in North Carolina, and that doesn’t even count the cost of getting the summons served, paying court reporters to transcribe depositions, or paying doctors and expert witnesses for their time in testifying. That can add up to thousands of dollars. It’s a sum that not everyone can simply pull out of their bank account, especially if you have been seriously injured, unable to work, and overwhelmed with medical bills.

Justice should be available to everyone regardless of whether you have or no money at all. If you were injured in an accident due to someone else’s negligence, in many cases you may have a personal injury attorney file a civil lawsuit on your behalf and advance those costs for you.

If you have a personal injury claim – after a car or truck accident, motorcycle accident, slip, and fall accident, or on-the-job accident – the attorneys at Younce, Vtipil, Baznik & Banks are available to help you pursue compensation on a contingency fee basis.

A contingent fee agreement means we will not charge you a legal fee until we are successful and obtain money for you. This allows you to obtain legal help and file a personal injury lawsuit with no upfront costs. You can have professional legal representation from attorneys who have more than 75 years of combined legal experience.

How Does A Contingency Fee Agreement Work?

Under a contingent fee agreement, our legal fee is dependent on our success in handling your personal injury case. If we obtain compensation for you, either through an insurance settlement or a jury award, we will retain a portion of the amount recovered as our professional fee and repay us for the case expenses we have advanced. If we do not recover money for you, you owe us nothing for the attorney fee. However, the state bar requires that you continue to be liable for the court costs the attorney’s advance, regardless of the outcome.

It allows you to hire an experienced lawyer regardless of your financial means and at a much lower financial risk to you.

This also incentivizes us, as your attorneys. We don’t get paid unless we win the case. Our fee is a percentage of how much we recover for you, so we are motivated to recover as much as possible for you.

Another way a contingent fee arrangement protects us both is that our attorneys must have confidence that your case is winnable before we will accept it. We need to believe we can recover enough money to make sure that your needs are met while covering our fees and expenses as well.

Our first meeting with you is free of charge. After we review the facts of your accident, if we believe that we can help you, we’ll offer to handle your case on a contingent fee basis. If you decide to engage our firm, then we’ll begin to investigate your case. If we cannot take your case, we will explain why and discuss the options available to you.

If we decide to pursue the case together, our contingent fee agreement will be in writing. We will review it with you and answer your questions before you sign any documents.

Fees and Expenses in a Personal Injury Claim

Every case is different, but the maximum fee we charge is 33 1/3% of the total recovered in a settlement or court award. For workers’ compensation cases, our fee is 25%. Some law firms charge 40%, and sometimes up to 50%, of the total amount recovered.

Other routine expenses in a personal injury case

• Court and filing fees
• Costs of serving the summons on defendants
• Investigation costs
• Costs of medical records
• Administrative expenses
• Costs of depositions
• Expert witness fees

As we pointed out above, North Carolina’s costs as of 2020 included $200 to file a lawsuit in Civil Superior Court, plus $30 for each defendant served with the lawsuit. A case’s other expenses will vary according to the complexity of the case.

Another thing to keep in mind is that much of the money recovered in a personal injury claim will be used to pay hospitals, doctors, and other creditors. If our attorney fee is more than the amount you would receive after money owed medical providers and health insurance comes out of your settlement, we will automatically reduce our percentage to ensure that our legal fee is not more than what you receive.

Regardless of the costs, we pledge to you that our law firm will never walk away from a settlement with more money than the client.

But Maybe You Don’t Need to File a Lawsuit!

Clients are sometimes surprised to learn that it’s never our objective to file a lawsuit or to go to court. We want to help you secure the money you need to move forward and put the accident you’ve experienced behind you. We can usually negotiate a settlement of an injury claim without going to court and usually without even filing a lawsuit.

What we Do Once Engaged with our Personal Injury Lawyers

• Investigate to prove who should be held liable for your injuries
• Develop a full accounting of your recoverable costs and losses.

Once you have finished the healing process, we will issue a demand letter to the insurance company or companies outlining our case and the compensation you deserve. Usually, a demand letter leads to negotiations toward a settlement. When the insurer refuses to agree to a reasonable settlement, and after a thorough consultation with you, we will be prepared to file a lawsuit. As lawsuits move forward, they are often settled prior to trial. When the few cases that aren’t settled go to court, we go with a well-prepared case and an expectation that we will prevail.

While we handle your claim, you need to get all of the necessary medical care. If you stop seeing a doctor, this gives the insurance company an opportunity to argue that you were not badly hurt. In the meantime, we’ll contact your doctors and other creditors to tell them we are pursuing a claim for you and ask them to delay any bill collection efforts. This will assure them that they can continue to serve you and expect to be paid from your claim settlement.

Contact a Dedicated N.C. Personal Injury Lawyer

If you’ve been badly injured in an accident that was not your fault, don’t accept any insurance company’s quick, low-ball settlement offer. Talk to an experienced personal injury lawyer about what you may reasonably expect to recover for your losses.

Contact Younce, Vtipil, Baznik & Banks, P.A. in Raleigh, N.C. for an insightful and free assessment of your personal injury claim.

We’ll treat you with care and honesty, and if we see a way forward, we’ll be ready to fight for full compensation for you. Get the personalized legal help and answers you need today from NC attorneys with extensive experience in personal injury cases. Phone 919-661-9000 or contact us online.

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The Impact of Marital Misconduct on Divorce in North Carolina

North Carolina is a no-fault divorce state, but marital misconduct can still be a factor in your separation and divorce if either spouse brings a claim for postseparation support or alimony.

If you are entering separation and divorce, and you expect that you or your spouse will request alimony, then you will want to evaluate the issue of marital misconduct with the help of an experienced divorce lawyer. If you are a dependent spouse seeking alimony from your supporting spouse, evidence of marital misconduct on the part of your spouse may assist you in obtaining a more favorable alimony award.

When you meet with your divorce lawyer, you should be prepared to discuss any instances of marital misconduct, including any instances of infidelity or illicit sexual behavior.

What is Considered Marital Misconduct in North Carolina?

Chapter 50 of North Carolina’s General Statutes defines “marital misconduct” as any of the following acts that occur during the marriage and prior to or on the date of separation:

27.  Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse;
28. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
29. Abandonment of the other spouse;
30. Malicious turning out-of-doors of the other spouse;
31. Cruel or barbarous treatment endangering the life of the other spouse;
32.  Indignities rendering the condition of the other spouse intolerable and life burdensome;
33. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
34. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
35. Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.

NC General Statute § 50-16.3A says the judge shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, the other spouse is a supporting spouse, and an award of alimony is equitable after considering all relevant factors. Marital misconduct is one of the relevant factors the court considers in determining whether an award of alimony is equitable, and if so, the appropriate amount and duration of the alimony award.

If you are a dependent spouse and you committed an act of Illicit sexual behavior as defined above, you will be barred from receiving an alimony award unless, unless your spouse condoned the act or also engaged in illicit sexual behavior.

Establishing Evidence of Adultery in NC Alimony Cases

Trust us when we say your divorce lawyer has heard multiple versions of “She or he can’t prove anything.”

In North Carolina, adultery or illicit sexual behavior may be established if the spouse alleging it can prove that both persons involved simply had the inclination (e.g., flirty behavior)  and opportunity (e.g., presence at a hotel at the same time) to commit illicit sexual acts. It can be difficult to provide absolute proof that an intimate act occurred between two people, but circumstantial evidence, such as testimony about flirty behavior (frequent sexual innuendo or hugging and other touching), a series of sexually-charged texts, or perhaps a private investigator’s photographs of the two at a hotel or beach house, may assist in establishing that an act of adultery occurred.

The allowance of circumstantial evidence and presumption of infidelity due to inclination and opportunity has been recognized in several court decisions. In Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011), evidence of the accused spouse’s and a third party’s inclination and opportunity was sufficient to support the finding that the spouse and a third party had engaged in sexual intercourse, despite evidence of the third party’s erectile dysfunction.

Is Marital Misconduct a Factor in Your Divorce? Let’s Talk.

If you or your estranged spouse committed an act or acts of marital misconduct during your marriage, it is best to explore the facts and their potential impact with a divorce attorney as soon as possible. The Raleigh divorce lawyers at Younce, Vtipil, Baznik & Banks can help you develop a pro-active strategy that protects your financial interests as you work through a contested divorce case.

Judges have wide discretion when determining alimony. There may be multiple factors in your case that will help you or your spouse in the eyes of the court. It is important for you to have experienced and skilled legal representation to advocate for your interests. Contact the Raleigh divorce attorneys at Younce, Vtipil, Baznik & Banks today at 919-661-9000 about how we can assist you.

 

 

 

 

 

 

 

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Importance of a Change in Condition in a NC Workers’ Comp Case

The purpose of North Carolina workers’ compensation is to support employees while they recover from workplace injuries or illnesses. The goal is for the worker to get better and return to work. Most do return to work, but others have disabling conditions and are unable to return to work. 

Some injured workers who are receiving workers’ compensation see their condition change for the worse. This becomes an issue if their workers’ compensation claim has been settled but they need further medical treatment.

If an injured worker’s NC workers’ comp benefits need to be adjusted because of a change in condition, the employee may find their employer and/or employer’s insurer reluctant to increase payments. The worker may need a knowledgeable Raleigh workers’ compensation lawyer to reopen the workers’ compensation case and present medical evidence of a change in condition to justify an increase in workers’ comp benefits. 

In the Raleigh area, the workers’ compensation attorneys of Younce, Vtipil, Baznik & Banks, P.A. can help you seek an adjustment of benefits based on a change in your medical condition. We can work to ensure that workers’ comp continues to pay for your medical care and replace lost wages and that your disability rating accurately reflects your condition.

Understanding ‘Maximum Medical Improvement’ and ‘Permanent Partial Disability’

Workers’ compensation benefits may be terminated once the doctor determines that a patient has reached “maximum medical improvement.” This is the point at which the worker has recovered as much as they can be expected to through medical care.

When the worker’s doctor declares the patient has reached maximum medical improvement, or MMI, the worker is either released to return to work and benefits end, or they are assigned a Permanent Partial Disability (PPD) rating or a Permanent Total Disability (PTD) rating. The rating reflects the severity or type of disability.

A worker with a PPD may return to their old job with accommodations for their disability or may take a different job. If the worker must take a job that pays less than he or she earned before being injured, workers’ compensation should pay wage replacement benefits to make up a portion of the lost wages. There are also specific scheduled payments for certain specific types injuries, such as the loss of the use of an arm or leg.

A totally disabled worker would receive benefits based on their PTD rating.

Reaching maximum medical improvement and receiving a PPD rating typically establishes whatever ongoing benefits or lump sum settlement the worker will receive and closes a workers’ comp claim. But, if the worker’s medical condition changes, these benefits may no longer be proper and, if that’s so, they must be adjusted.

How a Change in Condition Affects Your NC Workers’ Comp Claim

Let’s consider a back injury, perhaps the most common cause of missed workdays among American workers. You could injure your back in a workplace accident, such as in a fall, or a bad back could be a cumulative injury caused by years of lifting, bending, stress and strain while on the job.

A back injury may be treated with anything from bed rest and pain relievers to surgery and physical rehabilitation. But back injuries can be degenerative, meaning they may grow worse over time, and back surgery can easily fail to achieve significant pain relief.

If you are out of work with a job-related back injury or any occupational injury, you could face a change in your medical condition and a need to adjust your workers’ comp benefits, even after receiving a disability rating.

North Carolina’s workers’ compensation law gives you only a limited amount of time after the last time workers’ comp has paid a medical bill for you to claim a change in condition and seek additional workers’ compensation benefits. A change of condition claim would require medical evidence that demonstrates substantial worsening of the original occupational injury for which benefits were paid.

When considering a request to modify workers’ comp benefits, the Industrial Commission may increase, reduce or terminate the benefits being provided to an injured worker. Our attorneys can review your circumstances and offer guidance about whether a petition for a change of condition is in order in your case. 

You would need to be ready to rebut any allegations that you did something to exacerbate the injury or to re-injure yourself, which an employer or insurer might try to claim to avoid paying additional benefits.

Conversely, if your condition gets better and you are no longer disabled, you must report this to your employer or the N.C. Industrial Commission, which administers workers’ compensation programs. 

How a NC Workers’ Compensation Attorney Can Help

The workers’ compensation attorneys of Younce, Vtipil, Baznik & Banks, P.A. can help you file for a change in your workers’ compensation benefits based on a change in your medical condition. We can handle all of the paperwork and ensure that your filing meets deadlines and other requirements of the N.C. Industrial Commission. We can serve as your legal counsel and advocate if your claim has advanced to the appeals process.

While workers’ comp rules require you to see the doctor assigned to your claim, you can also see another doctor for a second opinion. If needed, our firm can refer you to physicians in the Raleigh area who we consult with and who understand what information the Industrial Commission will consider about a claimant’s medical condition. 

The North Carolina workers’ compensation system is extremely complex. Most injured workers are not fully aware of their rights or how to enforce them, but they face attorneys for their employer and the workers’ comp insurer who work the system every day.

Let the lawyers of Younce, Vtipil, Baznik & Banks, P.A., protect your benefits and deal with the insurance company if there is a change in your medical condition that warrants an adjustment to your workers’ compensation claim or settlement. Phone us at 919-661-9000 or contact us online to get started with a free initial consultation about your case. 

 

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North Carolina Restricts COVID-19 Liability

As Congress debated a COVID-19 relief package at the end of 2020, you may have heard that a sticking point was the Senate leader’s insistence on providing liability protection to ensure that businesses could not be sued if customers or employees contracted COVID-19 from exposure to the virus on their premises. What was less well-publicized is the fact that as of September 1, 2020, more than a dozen states had passed legislation of their own, shielding businesses from COVID lawsuits.

North Carolina is one of those states. In 2020, the North Carolina General Assembly adopted a bill that provides that in a claim for compensation due to contraction of COVID-19, the defendant is not liable for “any act or omission that does not amount to gross negligence, willful or wanton conduct, or intentional wrongdoing.” Gov. Roy Cooper signed the bill into law. The governor also signed a subsequent bill that granted the owners and operators of community pools the same immunity from COVID-19 liability.

In other words, the burden of proof for showing that you should be compensated for contracting the coronavirus at a business, government agency, or nonprofit is higher than simply proving someone was negligent.

Deciding what constitutes “gross negligence, willful or wanton conduct, or intentional wrongdoing” will be up to courts and juries. According to the North Carolina Pattern Jury Instructions, an act is willful if the defendant intentionally fails to carry out some duty imposed by law which is necessary to protect the safety of the person to which it is owed. An act is wanton if the defendant acts in conscious or reckless disregard for the rights and safety of others. This means that if a business has willfully violated closure orders or curfews, a claim may be successful.

At Younce, Vtipil, Baznik & Banks, P.A., our personal injury lawyers are reviewing possible COVID-19 coronavirus injury claim cases and seeking compensation for our clients, when appropriate. Phone us at 919-661-9000 or contact us online for a free initial consultation if you think you may have a claim.

What is Limited Immunity from COVID-19 Transmission?

The primary COVID-19 limited immunity statute spells out who and what it applies to. The law says “no person shall be liable” except as we describe above, and defines “person” as:

• An individual
• Corporation
• Nonprofit corporation
• Business trust
• Estate
• Trust
• Partnership
• Limited liability company (LLC)
• Sole proprietorship
• Association
• Joint venture
• Government
• Governmental subdivision, agency, or instrumentality
• Public corporation
• Or any other legal entity.

The clause in the second law covers community pools, defined as “a privately owned community swimming pool, including a swimming pool owned or operated by a multiunit apartment complex, homeowners association, or condominium unit owners association.”

The immunity is granted for claims filed up to 180 days after North Carolina’s state of emergency order regarding coronavirus protections is lifted. Unfortunately, as of this writing, there are no concrete plans for when this order may be rescinded.

Some politicians and business lobbyists have pushed for blanket immunity, which would eliminate the possibility of any claim based on the transmission of COVID-19. But this ignores the plight of those sickened because of others’ bad actions and, some argue, weakens incentives for businesses to maintain a safe workplace. On the other extreme, some have argued there should be no immunity, which ignores the potential impact of legal costs on businesses already struggling through the pandemic and insurers facing billions in COVID claims.

North Carolina’s law falls somewhere in the middle, allowing that in some cases it is correct to hold a “person” accountable for disregarding the danger of allowing COVID-19 to spread.

North Carolina’s law also states specifically that COVID-19 immunity does not extend to workers’ compensation claims.

Can I File for Workers’ Compensation if I Get COVID on the Job?

If you believe you contracted COVID-19 from an exposure that occurred while you were at work or otherwise on the job, you should seek workers’ compensation. If your employer disputes your claim, you should also contact an experienced North Carolina workers’ compensation attorney. We believe many employers and their insurers will fight COVID-related workers’ compensation claims filed by workers outside of occupations at the highest risk for COVID exposure.

Workers’ compensation pays for medical care and a portion of lost wages if an employee cannot work because of an illness contracted during the performance of their job duties. Workers’ compensation covers all medical costs, including hospitalization, medications, rehabilitation, and more.

In a workers’ compensation claim, the employee needs to provide evidence that:

• He or she contracted the illness from exposure at a job site or while performing assigned job duties, and
• Because of their job, the employee is at greater risk than the general public for contracting the condition. Because COVID-19 is a pandemic, it will be important to be able to overcome the potential allegation that your COVID exposure likely occurred outside of your job.

North Carolina workers’ compensation laws cite some specific occupational diseases contracted from chemical exposures, which do not require evidence of exposure greater than the general public’s.

The Occupational Safety and Health Administration (OSHA) has divided job types into four exposure risk levels: very high, high, medium and lower risk. Most American workers will likely fall in the lower exposure risk or medium exposure risk levels, OSHA says.

Jobs with a very high or high potential for exposure are held by healthcare and medical laboratory workers and funeral home workers.

The medium exposure risk is found in jobs that require frequent/close contact with people who may be infected, but who are not suspected of having COVID-19. Workers in this category include:

• Those who may have frequent contact with international travelers.
• Those who may have contact with the general public in schools, high population density work environments, and some high-volume retail settings.

Those with a low risk include:

• Remote workers
• Office workers without frequent close contact with coworkers, customers or the public.
• Manufacturing and industrial facility workers without frequent close contact with coworkers, customers or the public.
• Healthcare workers providing only telemedicine services.
• Long-distance truck drivers.

Many ill and injured workers lose important rights and benefits because they delay seeking the help of a workers’ compensation attorney. Don’t wait. Contact Younce, Vtipil, Baznik & Banks in Raleigh, NC, today. The initial consultation about whether you have a valid case is free.

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