Get Answers to These FAQs We Hear the Most
We know how many questions you must have right now about your personal injury or workers' comp case, so we compiled this list of the questions we hear the most. If you have a question that is not answered here, please call our Columbia law office to speak with Kenneth Berger.
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How do Drunk Driving Accidents Differ from Other Accidents?
While you’re always entitled to seek compensation when you’ve been hurt in a car accident that wasn’t your fault, being hit by a drunk driver is a special circumstance that warrants some extra explanations for victims. Drug or alcohol-related crashes tend to be a little legally different due to the extra complicating factors involved. Here’s what you should be aware of if you’ve been injured by a drunk driver.
Criminal Law Versus Civil Law
One of the biggest sources of confusion after a driving under the influence (DUI) accident involves the difference between civil and criminal cases. It’s true that driving under the influence is a crime, and civil authorities will pursue drunk drivers in order to carry out the law. However, the criminal case does not address financial compensation for victims. For that, you need to file a personal injury lawsuit, which is a matter for the civil courts.
It’s a common misperception that you can’t sue someone who is facing criminal charges. Nothing could be further from the truth. The civil and criminal justice systems function independently of one another, and you absolutely can press a civil lawsuit against someone who is being prosecuted criminally. Being convicted and in jail affords no protection from a civil suit, either, and may actually help your attorney prove your civil case. However, a conviction isn’t necessary to begin your civil case, as the standards of evidence in civil court are different than criminal court, too.
Punitive Damages in DUI Cases
After an auto accident, you may seek compensation for expenses such as hospital bills, physical therapy and rehabilitation, lost wages, diminished earning capacity, repair or replacement of your property, pain and suffering, and more. However, after a severe DUI accident, you may also seek punitive damages against the drunk driver. Punitive damages are designed to punish particularly bad behavior, as well as provide a warning to anyone in the future who may commit similar acts. Punitive damages may be awarded to victims when the accident was caused by gross negligence or recklessness, though they must be proven to a higher standard of evidence than other damage awards.
Help for DUI Accident Victims
If you’ve been injured in an accident that was caused by a drunk driver here in South Carolina, the Law Office of Kenneth E. Berger is here for you. We represent those who have been hurt, not drunk drivers, and we can help you navigate the complex world of insurance companies, personal injury lawsuits, damage awards, and more. To schedule a free initial consultation with us, please call our office, use the contact form to send an email, or click the live chat box on this page. Our office is conveniently located in Columbia, and we serve a wide area across the entire state, including the Lexington, Sumter, Florence, and Myrtle Beach areas.
For answers to questions you have about car accidents and DUI issues right now, please download our book, “Safety First, Justice Always: Your Guide to South Carolina Auto Accident Law.” It’s completely free and can help you understand your rights as a victim after a crash.
What is the Statute of Limitations Against CSX and Amtrak in SC?
Anyone injured in the 2018 collision between the Amtrak passenger rail and CSX cargo train will likely have 3 years to bring a lawsuit under the laws of South Carolina. Nonetheless, because South Carolina law only allows 2 years to bring suit against government defendants, and since various state agencies responsible for railway maintenance may ultimately be named as defendants based on their own negligence, I would encourage you to not to wait. Likewise, I could foresee lawyers for the train companies arguing that the statute of limitations from other states actually apply, with some potentially being as short as one year.
This answer is not intended to make you feel rushed, but rather help you stay informed of your rights so that those rights may be protected. The statute of limitations in all civil cases - whether state or federal - is critical because missing it often serves as an absolute prohibition against bringing suit or obtaining recovery. For additional information regarding the CSX-Amtrak wreck, please visit our train accident page.
What Should I Do If I am in a Crash Caused by a Drunk Driver?
Every serious car accident is a tragedy, but an accident caused by a driver that is driving under the influence (DUI) can be devastating. Data from the National Highway Traffic Safety Administration shows that across the nation, 29 people were killed every single day in 2016 due to crashes involving alcohol, and DUI accidents injure many South Carolina residents every year, as well.
Here’s what you should do if you are involved in a car accident and you suspect that the other driver was under the influence.
DUI Signs to Look for After a Crash
If you suspect drunk driving caused the crash, your first step should be to call 911. A police response means that a trained investigator will be able to examine the other driver. If he or she tests positive with law enforcement, not only does it help your legal case later, but you are helping to take a dangerous driver off the roads.
While you wait for the authorities to arrive, keep your eyes open. You can even use your smartphone to take pictures or video of the scene, but only if it is safe for you to do so—and never approach an obviously intoxicated driver. If you see any open alcohol containers or drug paraphernalia, report it to the police. Report the use of mouthwash, breath spray, or eye drops immediately after the accident, as well, as the driver could be attempting to conceal intoxication. Another common tactic is for a drunk driver to switch seats with someone else in the car. If you notice a seat swap, tell the police what you saw, as it could lead to serious charges.
After the crash, you should also contact a personal injury attorney who handles DUI cases right away. Your attorney will know how to effectively investigate a DUI crash, press a claim against the insurance company, and will be able to take your case to court if a fair settlement cannot be reached.
Learn More and Get Legal Help After an Accident
For more information about car accidents and DUI crashes in South Carolina, please download our e-book, “Safety First, Justice Always: Your Guide to South Carolina Auto Accident Law.” This short, informative book is an invaluable resource for those who have more questions about car accidents here in our state, and is completely free.
If you have been hurt in an accident caused by a drunk driver, we at the Law Office of Kenneth E. Berger extend our heartfelt sympathies to you. Drunk driving is a serious problem in South Carolina, and we would like to do our part to help victims recover from their injuries. We proudly serve clients from Columbia, Lexington, Sumter, Florence, Myrtle Beach, and other nearby areas, and we are here to help you get the justice that you deserve. Call us by phone, use our contact form to send an email, or click the live chat box on this page now to arrange a free consultation with us today.
Is a Concussion a Form of Traumatic Brain Injury?
Concussions are a common form of injury that impact 1000s of Americans each year. Any blow to the head can be serious and become deadly, even if there’s no apparent bruising or broken skin. What exactly is a concussion, and how can it affect the brain and long-term health of a victim? Here’s what you need to know about concussive injuries, and how to get legal help if you have been hurt.
Concussions Are Brain Injuries
A concussion is not just a blow to the head; it is a form of traumatic brain injury that is often seen in professional and school sports, slip and fall accidents (especially in nursing homes), car or motorcycle accidents, and child daycare injuries.
A concussion may be caused by a direct hit to the head, such as when someone slips and strikes his or her head against the floor when falling, or slams against the dashboard in a car crash. The sudden impact can cause the brain to shift inside the head and strike against the boney underside of the skull. There may not be any evidence on the outside of the head that there was an impact, and the victim may not lose consciousness immediately or even at all. Some concussions happen even when the head has not been struck. When the head is subjected to a rapid acceleration or sudden stop, the force involved can cause the head to whip back and forth. In this situation, the way that the brain is suspended inside the skull can cause it to slam against the inside of the skull, causing injury.
When the force is great enough, both the front and back of the brain may strike the skull. This is called a coup-contrecoup injury, which can worsen symptoms and prolong healing time.
The Symptoms of Concussion After an Accident
Certain signs and symptoms can show if someone has suffered a concussion, including the following:
- Headache or a feeling of pressure
- Nausea or vomiting
- Mental confusion
- Delayed or sluggish speech, responses, or movement
- Inability to focus, pay attention, or concentrate
- Trouble staying awake or trouble falling asleep
These are not all of the symptoms of a concussion, and some or all of the symptoms may even be delayed, so it is important whenever there’s a suspected head injury to see a doctor as soon as possible. Many symptoms mimic those of other types of TBI that are deadly if left untreated, such as bleeding on the brain or uncontrolled swelling. Diffuse axonal injuries and neurochemical cascades are also hallmarks of concussion.
After a TBI, follow your doctor’s recommendations on when it is safe to engage in physical activity again. A second blow to the head while still healing from an initial concussion may lead to what’s known as “second impact syndrome,” which causes rapid, uncontrollable swelling of the brain. Second injury syndrome can lead to permanent disability or death.
Get Legal Help After a TBI
If you or someone you love has suffered a concussion or other traumatic brain injury, the negligent person or parties should be held responsible. To speak to an experienced attorney who focuses on securing justice for the victims of traumatic brain injuries, contact my office today. We are based in Columbia, and proudly serve the Lexington, Florence, and Myrtle Beach areas, as well as the entire state of South Carolina and beyond. Reach out to us by phone, send an email, or just click the live chat box on this page to begin receiving help now.
What is the Statute of Limitations For a Wrongful Death Action in South Carolina?
The time in which you have to file a lawsuit is known as the statute of limitations. Under the laws of South Carolina, you have 2 years to bring a lawsuit - also known as a civil action - against governmental defendants. For instance, if you wanted to hold a county hospital or one of its doctors responsible for medical malpractice, you would most likely only have 2 years from the date the malpractice was committed.
For wrongful death actions against non-governmental defendants, you generally have 3 years from the date of the incident. One example would be in a lawsuit seeking to hold a company accountable for its defective airbags. Let's say Takata or another airbag manufacturer had a defective product in the vehicle, and the defect caused a loved one's death, you would have 3 years from when the accident occurred to bring suit.
There are caveats to these umbrella rules, such as cases when the act of malpractice is not discovered until months or even several years after it was committed, but when possible you do not want to come anywhere close to running out of time to bring a civil action.
Often times, it takes great effort and a significant period of time to properly investigate potenital wrongful death claims prior to initiating a lawsuit. In other words, if you have questions about a potential case, it is important to contact a South Carolina attorney early enough in the process to: a) avoid rushing into litigation; or b) creating any statute of limitations issues.
If you are dealing with the loss of someone you care about, and have any questions about what could have been done to prevent their passing, please do not hesitate to contact us. There is no consultation fee. Likewise, we do not want you second-guessing yourself down the road about what actions could have been taken to uncover the truth and hold the negligent parties responsible.
What is an Attractive Nuisance?
Child injury law is a little bit different than regular adult personal injury situations, due to the natural curiosity and relative inexperience of young ones. In many cases, children simply don’t know better, and may do things that could lead to serious injury or even death. Children may not understand the consequences of their actions, or find themselves in situations that for an adult would not normally be hazardous. When the stage is set for a child to be hurt in a way that an adult should have foreseen, that situation or circumstance may be legally called an “attractive nuisance.”
Defining an Attractive Nuisance
Attractive nuisances are a part of the concept of premises liability. Premises liability is a part of the law that allows a visitor or guests on a property to seek compensation from the owner of that property in case of an injury caused by the owner’s negligence. Property owners are generally expected to protect visitors from harm with routine maintenance, appropriate safety and security precautions, and either removing or marking hazards for guests to avoid.
In most cases, premises liability law does not protect trespassers—the visitor must be invited to the property either explicitly, or in cases of business locations, implicitly, by being open to the general public. However, the law makes an exception in certain circumstances of trespass involving children.
Here are some of the key criteria that help define an attractive nuisance case:
- The property owner was aware or should have been aware that children could trespass on the property. An example might be a highly visible property that is located near a school, along a school route that children regularly use, or near a playground or other location that children visit.
- There was some unsecured danger, condition, or hazardous item on the property that caused serious injury or death to a child, such as an unfenced swimming pool, trampoline, or other unprotected amusement that could cause harm.
- The child or children involved in the accident were not old enough to understand the potential risk to life or limb that exists on the property.
- The property owner must have failed to take reasonable precautions to prevent an injury or death, such as with a locking gate or by securing dangerous equipment.
- There must be a real benefit to fixing the hazard or securing the property with regard to the health and well-being of potential child trespassers. For example, it is not usually reasonable to prevent a potential child injury by destroying every swimming pool. Installing a locking gate to prevent child access, however, is likely a reasonable precaution that should be taken.
When all of the above factors come together in a situation where a child has been hurt or killed, attractive nuisance law comes into play.
Children are our most valuable asset for the future. We as adults have a duty of care to ensure that children are safe from our negligence, because they simply don’t have the capacity or experience to understand the very real hazards that exist all around us every day. Failure to uphold that duty can lead to severe injuries and tragic losses of life that could have been avoided if only an adult had taken the time to care and the responsibility of maintaining his or her property.
If your child has been injured on someone else’s property and you think you may have a case for an attractive nuisance, the Law Office of Kenneth E. Berger is here for your family. We can help you seek compensation from the person responsible for your child’s injuries so that you can recover hospital costs, doctor visits, rehabilitation, long-term care, and more. Our office is conveniently located in Columbia, and we proudly service all of South Carolina, including the Sumter, Florence, and Myrtle Beach areas. To arrange a consultation with a legal professional today, call us by phone, send an email via the contact link, or click the live chat box on this page right now.
How Can I Prove the Other Driver Was Texting at the Time of the Wreck?
There are 1000s of rear-end collisions on South Carolina's roadways each year. Often times, the person who has been injured knows intuitively that the at-fault driver was distracted - most likely by a cell phone. But how can you prove this fact when the other person will almost certainly deny it? In my experience, there are 3 very important steps that can be taken:
1. A preservation of evidence letter (also known as a "spoliation" letter) should be sent to the distracted driver and his/her insurance company as soon after the wreck as possible. The letter my office uses demands that the cell phone, along with text, email, Facebook, Instagram, Snapchat, Internet usage, and all other data history be preserved exactly as it existed at the time of the accident. If we learn that the phone was tampered with, or any potential evidence was deleted after receipt of our "spoliation" letter, we can seek to have the judge inform our jury of this fact in the event the case goes to trial. That looks very bad for the defendant. On the other hand, if evidence is not destroyed, we may very well have our "smoking gun" in the form of text messages that were sent and received in the moments leading up to the collision. Either way, a preservation of evidence goes a long way towards proving distracted driving.
2. In the event a lawsuit becomes necessary, South Carolina law allows subpoenas to be sent to any person or entity in possession of potential evidence. To this end, a subpoena should be sent to the negligent driver's cell phone provider. While the subpoena response may only provide a call history or monthly data usage, it can provide evidence of how much time a person spent glued to their cell phone.
3. If depositions are required to further prove the case and hold the driver responsible for his/her actions, the attorney should dig in on the distracted driving issue. This is especially true for rear-end collision and blown stop sign cases. Simply put, a driver does not run into the back of someone else unless he is going far too fast for conditions, following too closely, or driving while distracted. Many times it is some combination of these dangerous variables. Though the defendant may not fully admit to using his cell phone at the time of the wreck, he will be forced to admit at least one major safety law violation (speeding, tailgating, taking his eyes off the road for a dangerous length of time) or look very foolish denying it. No matter his answer, you win.
I have handled distracted driving cases across South Carolina for a number of years now, and would be glad to assist you as well. If you believe the person who crashed into you was on a cell phone, but need help proving it legally, we are here to serve. You can contact us 24/7 via our live chat, or call us at one of our convenient office numbers listed on the website. We look forward to hearing from you, and to holding the dangerous driver accountable.
Can I still file a lawsuit after a motorcycle accident if I wasn’t wearing a helmet?
It’s something that no rider likes to think about for long, but the fact remains that riding a motorcycle carries an inherent level of danger, and accidents can cause devastating injuries. Even the most careful rider on the road can’t always account for the behavior of other drivers. Sooner or later, another vehicle may cause a crash with a motorcyclist, and the rider may not be wearing a helmet in South Carolina. In situations like this, one of the biggest questions that attorneys get asked is from victims who wonder if they can still sue the other driver for the accident.
Filing a Motorcycle Accident Lawsuit in South Carolina
The answer to whether you can file a lawsuit is a qualified “yes.” You can absolutely file a lawsuit against another driver whose negligence or recklessness caused your motorcycle accident, even if you weren’t wearing a helmet. The success of your suit will depend on a few important factors.
First, it’s important to realize that South Carolina law says riders over the age of 21 are not legally required to wear a helmet. In other states, where wearing a helmet is required, your lawsuit could face a much greater challenge, since not wearing a helmet directly violates the law. This situation can occasionally catch riders who cross state lines without realizing the change in law over the border. One example is when riders visiting Myrtle Beach during Bike Week may decide to venture further afield and cross the nearby North Carolina border, where helmets are required. If an accident happens across the border and the rider is not wearing a helmet, an injury lawsuit could be more difficult, particularly if it involves a head injury.
Even in states like South Carolina, there may be some challenge to a lawsuit if you suffered a head injury, as the other driver may claim that not wearing a helmet contributed to your head injury. However, there is a powerful legal tool that can still help victims recover in situations like these.
Comparative Negligence in South Carolina
When the other driver offers a challenge to your lawsuit, South Carolina follows a type of law called “comparative negligence” to determine who is responsible for the injuries and other damages in an accident. What this means is that under South Carolina law, even if you are found partially responsible for your injuries, you are still eligible to receive compensation, so long as you can demonstrate that the other driver (or drivers) were more than 50 percent responsible for the accident.
When determining your final compensation under comparative negligence rules, the award will be reduced based on how much liability you are found to have for your injuries. For example, if the court finds that the other driver is 80 percent responsible for the accident and that you are responsible for the remaining 20 percent, your award will be reduced by 20 percent. In this situation, if you were awarded $50,000 by the jury, it would be reduced to $40,000. However, if you were found to be over 50 percent liable, you would not be eligible to receive any award at all.
Most states these days have accepted some form of comparative negligence as law, but a few (including our neighbors, North Carolina) still follow a rule called “pure contributory negligence.” In these states, if you are found to share in any part of the responsibility, you are not allowed to receive any damages at all.
Wearing a Helmet Can Save Your Life
While you are under no obligation to wear a motorcycle helmet in South Carolina if you’re over the age of 21, the fact is that helmets save lives. Statistics from the Centers for Disease Control and Prevention show that wearing a helmet reduces the risk of death by as much as 37 percent, and reduces the risk of head injury by 69 percent.
If you’ve been in a motorcycle accident, don’t hesitate to reach out to a personal injury attorney as soon as possible. An attorney can help you protect your legal rights in an accident and determine if you are able to seek compensation from the ones responsible for your accident.
The Law Office of Kenneth E. Berger is proud to stand up for the rights of motorcyclists across all of South Carolina, including the Myrtle Beach, Columbia, and Florence areas. To speak to an experienced legal professional and arrange a consultation about your motorcycle crash case, call or email us today.
Who Is Legally Responsible for Injuries on Rental Properties in South Carolina?
Regardless of whether the accident occurs at a commercial (e.g. office building, restaurant) or residential location (e.g. apartment, beach house), the owner, renter, and any company who performed construction or maintenance on the property may be liable. These cases are very fact specific, but South Carolina law generally follows the age-old rule that people are responsible for their actions. Property owners must fix or warn people of dangerous conditions. Renters must not endanger their guests. Companies that work on site must meet the standards and follow the rules of their industry.
Depending on whose negligence contributed to the injury, a claim may be filed with multiple insurance companies. For example, some people carry renters insurance. Most landlords will also have either a homeowners or commercial policy. Likewise, if it was a construction or maintenance company's negligence that caused the accident, their insurance company should be notified. As you can tell, there is often a lot of finger pointing between the various potential defendants. In most instances, the insurance companies want to blame each other, but rarely do they want to step up and take responsibility for the harm that has occurred.
Fortunately, South Carolina's premises liability laws - which govern accidents on rental properties - demand that innocent people be made 100% whole. Multiple insurance companies may have to contribute for damages such as medical bills and severe physical pain, and in the end, regardless of who pays what, it must add up to 100% of an innocent person's losses. As the saying goes, "anything less than full justice is injustice." In fact, that is not just a saying, but rather the law of South Carolina.
For more free answers to questions regarding your accident case, simply call my office today at one of our convenient statewide numbers, or use our 24/7 live chat feature. We look forward to helping you as we have countless others.
Can I Sue the Insurance Company for Bad Faith in South Carolina?
Yes, so long as certain elements are met, insurance companies can absolutely be sued and held accountable for their wrongdoing. Remember, all insurance policies are contracts. The insurer promises to pay money in the event of an accident, and in return, the insured pays a premium. In South Carolina, the law says there is an implied covenant of good faith and fair dealing in every contract. When that covenant is violated, it is considered bad faith, and opens insurance carriers up to lawsuits.
For People With a Claim Against Their Own Insurance Company
Who can bring such a suit? The first example would be the individual or entity with the insurance contract. For instance, if you needed to undergo a medical procedure or you were suppose to receive long term disability benefits at work or your property was damaged in the 2015 flood, and the insurance company refused to fully and timely fulfill its obligations under your contract with them, it could be considered bad faith. If that were to happen, you could potentially take legal action against them to not only obtain the benefits you were paying for by way of your premium, but additional damages related to the consequences of their wrongdoing.
For People With a Claim Against Another Person/Business' Insurance Company
The next example of who may pursue a bad faith action in South Carolina is a little more complicated, but I'll explain. So let's say you were involved in a car accident and your medical bills are $25,000.00, you missed 3 weeks of work, you're still having significant back pain, and the person who ran into you has admitted fault. In that scenario, you would have a claim against the at-fault driver's insurance company. But let's say instead of acting reasonably, the liability insurance carrier only offers you $10,000.00. They claim that after reviewing your medical history, it appears that you had degenerative disc problems, and they do not believe your current issues were caused by the wreck (despite the fact that you had not had any back issues in years, were working everyday, and going to the gym 4 times a week). It sounds absurd, but this kind of thing happens everyday. What can you do?
The bad news is South Carolina law does not allow you to sue another person's insurance company. The good news is there is a way around it. So what you have to do is first get a verdict against the insured, at-fault party, that is in excess of the insurance policy limits. Next, you would get the at-fault party to assign you his rights against the insurance company in return for not going after his assets. For example, if the negligent driver who hurt you only has $50,000.00 in insurance and you obtain a $350,000.00 verdict against him after his insurance carrier acted unreasonably or in bad faith by not settling the case sooner, you would give the defendant the option of either paying you the $300,000.00 difference, or assigning you his rights to go after the insurance company.
Hold Them Accountable For Their Bad Faith
To summarize, insurance carriers must put the people and entities they insure first. They must act in good faith, and deal fairly. When they do not, either with their insured or someone their insured hurt, legal action may be taken. However, unlike more basic claims, bad faith lawsuits - and often times the verdicts that are first required - will almost certainly take a lawyer who understands this highly nuanced area of law. If you have questions about an insurance claim, accident case, or any aspect of South Carolina's bad faith laws, simply call me at 803-790-2800 or request free copies of my books.
Insurance companies promise to protect people. My job is to make sure that promise is kept, and hold them accountable when it is broken.