Verdicts and Rulings

NCADA members are trial, appellate, and workers’ compensation attorneys from across North Carolina.  Our members handle some of the most sophisticated and challenging cases, cases that have shaped and will shape our jurisprudence for years to come.

This section of The Resource highlights some of our members' successes.  

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  • 29 May 2014 5:34 PM | Lynette Pitt (Administrator)

    Carlton F. Poston v. Dr. Jack and Beverly Hyatt13-CVS-852, Catawba County

    This matter arose from a dog bite incident occurring at Defendants’ home on December 3, 2010.  Plaintiff was a HVAC technician and was performing work on Defendants’ HVAC unit on the day of the incident. 

    Defendants’ have owned many Bullmastiff breed dogs in their lives as they both love the breed and have shown their dogs in various AKC competitions over the years.  Two of their prior Bullmastiffs have been AKC champions for the breed.  Defendants’ home also contained an indoor/outdoor room separate from the main living space, so the dogs could go out to their run in the backyard and also come into the indoor/outdoor room of the home.  The indoor/outdoor room was separated from the rest of the home by a dutch-door such that the top half and bottom half of the door swung separately.

    On December 3, 2010 Plaintiff was working on Defendants’ HVAC unit in the basement of the home.  He came from the basement to talk to Ms. Hyatt who was standing in the indoor/outdoor room with three of her dogs.  The bottom half of the dutch-door was closed, and Ms. Hyatt and the dogs were on one side of the door and Plaintiff was on the other side.

    Ms. Hyatt testified that Plaintiff reached over the door to pet one of her Bullmastiff dogs, Molly, and in doing so startled Molly causing her to bite Plaintiff on the hand.  Plaintiff testified that he was standing beside the door and resting his hand on the top of the door when Molly came up to him and bit the top of his hand without provocation.  Defendants both testified that Molly had never bitten anyone or showed any signs of aggressions before this incident. 

    Subsequent to the bite Plaintiff’s puncture wound became infected, and the infection continued on for several weeks.  The infection was found to have been caused by a rare bacteria, Pastuerella Pneumotropica, which is occasionally found in dogs and cats.  Because the infection could not be healed it destroyed the tissue in the middle part of Plaintiff’s hand, and his doctors recommended amputation of his middle finger.  In total, Plaintiff’s medical expenses and lost wages amounted to $100,969.

    At the close of Plaintiff’s case in chief Defendants moved for directed verdict on the grounds there was no evidence that Molly had ever shown aggressive tendencies or bitten anyone before.  Therefore Defendants’ had no reason to believe she would have bitten Plaintiff on this occasion.  However there was testimony from two of Plaintiff’s co-workers, who had been at Defendants’ home working on the HVAC unit four years before this incident, that they were scared when one of the Defendants’ dogs barked, growled, and jumped up on the dutch-door while they were in Defendants’ home.  The witnesses were uncertain whether this dog was Molly because Defendants’ owned three Bullmastiffs at this time.  The witnesses described this incident as an attempted attack, although they conceded that while they were scared the dog was always confined to the indoor/outdoor room and never bit, chased, on jumped on them in any way.  As a result of this testimony the motion for directed verdict was denied.

    The defense also moved for directed verdict on Plaintiff’s common law claim for strict liability.  Defense counsel argued that a strict liability claim could only be supported by evidence of expert testimony that the particular breed of dog had characteristics of viciousness or aggression.  This motion was again denied because of the testimony from the witnesses describing they were scared by aggressive conduct by one of the Defendants’ dogs four years earlier.

    The case went to the jury on four issues: negligence, contributory negligence, strict liability, and damages.  The jury deliberated for about three hours and found Defendants’ negligent, and Plaintiff contributorily negligent.  On strict liability the jury was charged with deciding the issue of whether the Defendants owned or kept a vicious animal?  The jury answered “No” to this issue, and the issue of damages was not reached.

    Some members of the jury commented after the verdict that they could see both parties having some responsibility for the bite occurring; however no one believed that Molly was a vicious dog, thereby shielding Defendants from the strict liability cause of action.

  • 30 Apr 2014 5:57 PM | Lynette Pitt (Administrator)

    This case arose from a motor vehicle accident along I-85 on 9-19-2011 in which Defendant rear-ended the vehicle operated by Plaintiff Aminah Singletary.  Following the accident, Plaintiff’s husband took her to the emergency room. 

    Plaintiff was a 49-year-old unemployed/disabled, married female.  She a long and significant medical history prior to the 9-19-2011 MVA that included a diagnosis of multiple sclerosis (MS) in 2005, migraine headaches, neuropathic pain in both lower extremities, fracture in right ankle, back and neck pain, bilateral shoulder pain, and two fusions in her cervical spine.

    Defendant’s auto liability carrier paid its policy limits of $30,000 to Plaintiff prior to trial.  Plaintiff’s UIM carrier tried the case.

    On 8-10-10, Plaintiff saw her neurologist and reported she had been having difficulties with pain in her neck.  Plaintiff was involved in a motor vehicle accident on 9-3-2010.   She slammed on the brakes but ended up rear ending another car.  On 4-26-11, Plaintiff saw her neurologist’s nurse practitioner and complained of increased pain, numbness and heaviness in her right leg. 

    The overwhelming majority of the medical expenses (approximately $149,000 of the total of the $183,000+ in alleged expenses) were incurred through Plaintiff’s treatment with neurosurgeon in Hendersonville, NC.  At trial, Plaintiff only submitted the medical bills associated with the treatment provided by the neurosurgeon; she did not submit the emergency room bills.

    Plaintiff’s neurosurgeon testified live and opined that the accident aggravated pre-existing conditions and necessitated two surgeries.  The UIM carrier argued that the surgeries were both unnecessary and unrelated to the accident. 

    The treatment with the neurosurgeon began on 7-26-2012 and included two surgeries. On 9-5-12, he performed a subocciptital craniecotmy to address a chiari malformation. On 6-5-13, the neurosurgeon performed a C2 and C7 undercutting laminostomy and C3-C6 cervical laminectomy for cervical stenosis. 

    The NC State Medical Board had suspended the neurosurgeon’s license on two occasions:  11-13-2002 (temporary licenses retained beginning on 7-1-2004) and 2-1-2009.  At the time of the surgeries, the NC Medical Board had conditions placed on his medical license (independent examinations by a neurologist before performing certain surgeries).

    The UIM carrier arranged for Plaintiff to undergo an independent medical examination with a local neurologist on 11-12-13.  The local neurologist testified by deposition.  The IME physician opined that Plaintiff’s “post accident complaints of pain are likely the result of her underlying disease and not the accident.”  The IME physician also opined that “it is possible that the patient's neck pain was exacerbated after the accident as a result of the trauma interacting with her multiple previous cervical fusions. The right ankle fracture . . . was clearly chronic . . .  All of her other symptoms have been present since long before the accident and are likely due to other causes.”  Finally, the neurologist testified that the surgeries of 9-5-2012 and 6-5-2013 were unnecessary and not related to the accident.

    During closing arguments, Plaintiff’s attorney asked for medical expenses of $140,000.  He also suggested a per diem for pain and suffering ranging from $100 per day for 800 days to $1,000 per day for 800 days.  The UIM carrier’s attorney argued that the surgeries were unnecessary and not related to the subject accident.  He also argued that Plaintiff’s neurosurgeon acknowledged that he did not have Plaintiff’s complete medical history, something he admitted was necessary when giving causation opinions.

    The jury deliberated for 2 hours, 45 minutes before returning the defense verdict.

    Defense Attorney:  Allen C. Smith, Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte, NC

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