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Tag Archives: Tort/Negligence

Tort/Negligence – Statutory Action — Consumer Protection – FDCPA – Offer of Judgment (access required)

Warren v. Sessoms & Rogers P.A. A law firm trying to collect on a debt allegedly owed not by plaintiff, but by her late husband, could not avoid her suit under the Fair Debt Collection Practices Act with a Rule 68 Offer of Judgment that provided for the maximum statutory damages but an equivocal offer of actual damages.

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Tort/Negligence – Wrong Prescription – Non-Pharmacist Employee – Medical Malpractice – Pre-Filing Requirement – Corporate Defendant (access required)

Alexander v. Rite Aid Corp. Naming a corporate defendant does not excuse a medical malpractice plaintiff from complying with the pre-filing requirements of S.C. Code Ann. § 15-79-125; however, the statute may be inapplicable to plaintiff’s claims that non-pharmacist employees’ negligence led to the improper filling of her prescription. Defendant’s motion to dismiss is denied without prejudice to its right to re-assert its arguments related to § 15-79-125 at the summary judgment stage.

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Civil Rights – Tort/Negligence – Malicious Prosecution – County Employee (access required)

Culberson v. Nichols Even though defendant Nichols was employed by the defendant-county, and even though plaintiff had been vocal about his problems with Nichols’ job, when Nichols accused plaintiff of stalking her, she was acting as a private citizen. Plaintiff’s federal claim is dismissed. The court declines to exercise supplemental jurisdiction over plaintiff’s state law claims.

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Tort/Negligence – FTCA – Medical Malpractice – Remedies – California Law – Reversionary Trust (access required)

Cibula v. U.S. In this case in which a family won a multi-million dollar Federal Tort Claim Act award from the U.S. for their child’s brain damage caused by government doctors, the 4th Circuit remands the case for a second time for the Virginia federal district court to grant the government a reversionary interest in the child’s future care award under the controlling California law.

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Trusts & Estates – Inter Vivos Transfers – Power of Attorney – No Gifting Provision – Tort/Negligence – Breach of Fiduciary Duty – Conversion (access required)

Gordon v. Busbee Where the wife’s power of attorney did not contain a gift-giving provision, and where the record contains no written evidence of her authorization for her husband/attorney-in-fact to make the transfers he did, the trial court erred in failing to direct a verdict for the wife’s heirs as to any transactions involving the husband’s taking funds that were undisputedly the wife’s and transferring them into a fund solely owned by him. We affirm in part and reverse in part the trial court’s denial of plaintiffs’ motions.

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Arbitration – Nursing Home Contract – Equitable Estoppel – Interstate Commerce – Tort/Negligence – Wrongful Death (access required)

McCutcheon v. THI of S.C. at Charleston, LLC Plaintiff cannot seek to enforce the terms of a nursing home admission agreement while simultaneously seeking to escape enforcement of the arbitration agreement he signed at the same time. Defendant’s motion to dismiss and compel arbitration is granted.

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Tort/Negligence – Malicious Prosecution – Fraud – Store Losses (access required)

Allen v. AutoZone, Inc. Where (1) the plaintiff-employee was in charge of a department in a store that racked up considerable losses; (2) the department’s paperwork was missing, and plaintiff had no explanation as to why; and (3) once duplicate paperwork was located, customers denied making the purchases indicated in plaintiff’s department’s paperwork, then defendant had probable cause to believe plaintiff had perpetrated fraud on defendant. Defendant’s motion for summary judgment is granted as to plaintiff’s claims of malicious prosecution and abuse of process.

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Corporate – Tort/Negligence – Fraud — Investor – Individual Lawsuit – Derivative Shareholder Claim (access required)

Rivers v. Wachovia Corp. An investor who suffered losses in 2007 when his 100,000 shares of Wachovia stock plunged from $56.65 per share price to below $1 cannot bring an individual suit based on defendant corporate officers’ alleged fraud about Wachovia’s financial health; the 4th Circuit says the investor does not qualify for any exception to the general rule that plaintiff must use a derivative shareholder claim for injuries to the corporation.

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Tort/Negligence – Medical Malpractice – Evidence – Expert Witness – Nurse Defendant – OB-GYN Witness (access required)

Creekmore v. Maryview Hospital Although an OB-GYN did not have an active practice in nursing, he performed postpartum monitoring of high-risk patients with preeclampsia and could testify as an expert in a med-mal suit alleging a nurse’s failure to monitor plaintiff led to her stroke and permanent brain damage, and the 4th Circuit upholds the $900,000 judgment for plaintiff.

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Real Property – Tort/Negligence – Fraud – Public Record — Constructive Notice – Question of Fact (access required)

Moseley v. All Things Possible, Inc. There was a recorded plat which showed an underground surface-water drainage easement running diagonally across the entire length of the undeveloped lot at issue; however, the easement did not appear on any deed in the lot’s chain of title, and the defendant-seller - aware of the plaintiff-buyers’ desire to build a home on the lot - presented the buyers with an altered copy of the plat with the easement removed and a square drawn on the plat indicating where a home could be built. The issue of whether the buyers could reasonably rely on the seller’s misrepresentation was one of fact.

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