South Carolina Criminal Attorney Blog

If you dissect the legal basis of a Personal Injury claim, here is what you will find rooted in the law. Personal Injury is a form of Negligence. Negligence is defined as when someone breaches their duty of care to another person. This means that we all of a responsibility to be careful when it comes to other people. We all owe other people this care. Everyone one of us. When a person does something that results in another person being harmed, then there first legal question is whether they breached their duty of care to that person.

The duty of care to others is based on foreseeability. The more foreseeable the potential injury, the more the duty of care. So how does all of this tie into riding a motorcycle? It works like this. We all know that if someone does not operate their motor vehicle in a safe manner that an accident could occur. That is simple. And we all know that if there is an accident, then someone could be injured. That is simple too. Both of these are "foreseeable." The connection here with motorcycles is that if there is an accident with a motorcycle, then not only is there a chance that the biker will be injured, but its extremely more likely that they will be seriously injured. Therefore, there is an increased duty of care. The more foreseeable the potential injuries are, the more the standard of care.

This is important when we bring claims against insurance companies and others for personal injuries based on negligence. Its also important as it has a direct affect on the type of negligence claim that we bring and the type of legal damages that we assert in these claims. That is because there are two different types of negligence. One is your basic, standard negligence. The other and more serious one is called Gross Negligence. The law refers to it as willful and wanton conduct. Its when a person is reckless with a blatant disregard for the safely of others, and/or when a person acts with a voluntary or conscious disregard.

The reason that it is so important for the personal injury lawyer to make these distinctions and to properly assert these claims, is that if the case involves gross negligence, then that allows the attorney to seek punitive damages. With punitive damages the plaintiff can seek a monetary recovery that would be far above that without gross negligence.

It works like this. With any type of negligence claim there are a number of different types of damages that the plaintiff can seek. With what is called basic or ordinary negligence, the main one is what is called, Compensatory Damages. With compensatory damages the plaintiff seeks to recover what they lost. That is, to be compensated for his/her loss. This also includes pain and suffering. But when the lawyer successfully brings a claim based on gross negligence, they can then seek punitive damages. This is important as it greatly increases the amount of the potential settlement or verdict. Punitive damages are intended to punish the defendant. For example. Say someone runs a red light because they are talking on the cell phone and just not paying attention. That would be considered ordinary negligence. But on the other hand, say they ran the red light intentionally because they were running late. This would be considered as explained above a reckless act. It would be a blatant disregard for the safely of others. Once the attorney as successfully asserted this, then the jury would be allowed to award punitive damages. With a settlement it would go into the negotiations with the defendant or the insurance company.

There are other ways to allow the lawyer to seek punitive damages. Being convicted of certain crimes and safety statutes is another. Anytime that a driver causes an accident an injures someone and is convicted of a DUI, the plaintiff's attorney would be able to seek punitive damages.

These concepts are often taken for granted with motorcycle accidents. But they should not be. They are extremely important and need to be property pleaded and alleged in any claim or law suit. When people are out driving their car and they see a motorcycle, they have an automatic increased duty of care around that motorcycle. They know that if there is an accident then there is an increased chance of serious injuries. More so than having an accident with another car.

These legal concepts are especially important for a good personal injury lawyer to know here in Myrtle Beach and Horry County of South Carolina. Not only do we have the usual number of residents that own and enjoy motorcycles, but this is a popular tourist area that receives a great deal of bikers. And of course, we have more than one Bike Week. The rights of those who ride are different from those who drive cars and too often those rights are not adequately protected on our roads. The Myrtle Beach area has more than its share of highway accidents, injuries and deaths. This article refers throughout it with regards to "injuries." But all of the legal concepts and negligence rules also apply equally to wrongful death law suits and claims. Wrongful death is the term applied to the type of law suit that is filed when someone dies as a result of another person's negligence.

There are far more to these concepts than what I have written here. This is just a short, brief summary to give you an idea of what is involved. The point here is that any claim of negligence involving motorcycles needs to be thoroughly investigated and pursued as the law operates differently with these types of cases.

Having recently written an article here on the blog explaining things about Negligence as it applies to car accidents, I thought I would write a few other things about this area of the law that are not related to auto accidents, but are important just the same.

One very important aspect of the negligence laws is that of "Notice." A lot of people understand how important Notice is in the law from a constitutional stand point. Notice is rooted in the law in many, many different ways, such as adequate notice of a court appearance, an notice about what a case is about, and all of the Discovery matters in law suits and in criminal cases. And so forth. Notice is a big part of the law and in all regards.

But the notice requirement in this aspect of the negligence laws is entirely different from what I addressed above, and exists purely from as a practical matter, as you will see.

This notice requirement of negligence cases simply says that the person that is potentially the civil defendant either knew, or should have known about the dangerous condition.

I have seen this requirement of negligence cases crop its ugly head up frequently in slip and fall cases. That is usually because there was something on the floor where a person was walking, and the person fell as a result of it. It then has at times become an issue because the insurance company, who will hang thier hat on any defense imaginable, has alleged that the property owner did not know of the dangerous condition.

So far now I'm sure you can eaisly see what the notice requirement is not the least bit related to car accidents.

It works this way. It's a goofy example, but it does a fairly good job of getting the point accross. If someone drops a banana peel on Joe's driveway and then along comes Sally and she steps on the banana peel, falls and is hurt, the negligence requirement of notice surfaces from time to time. I can just about guarantee you it will surface if the insurance company thinks it can defend the claim by raising it as a defense. So Sally falls and is hurt. If the banana peel had been discarded just five minutes earlier, then it would be unreasonable to hold the property owner liable for Sally's injuries. That simply would not make sense and would be grossly unfair to the Joe. However, if on the other hand that banana peel had been sitting in the driveway for a month and Joe had to walk by it every day to get to his car, then the insurance company would have a pretty hard time trying to assert the defense of no notice. Quite clearly either Joe knew about it, or he certainly should have known. The law was smart enough to include the "should have known" part so as to prevent people from simply saying that they didn't know.

Now, to take this a step further, Joe's knowledge of the banana peel or his "should have known" obligations, certainly do not create any sort of duty on his part to inspect his driveway. But, it could. If for some reason there is some property where people travel on each day, then a certain obligation would be created for the property owners to keep the property safe. It all depends on the circumstances.

Continue reading