To:€¦ · Web viewThere is no evidence that Samantha was alive and/or conscious for any period of time after the accident. She never saw the car coming. She never saw the car coming

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Reynolds & Starr, P.C.

MemoTo: James Reynolds

From: Angeline O’Bara

Date: July 12, 2018

Re: Pre-Litigation Research Memo – Samantha Crow Case

I have been asked to conduct legal research regarding the Samantha Crow

case. In this memo I have explained in detail the various options and

recommendations on who should be named as parties, what claims should be

made, what damages sought, what court litigation should be commenced in and

what steps need to be taken to commence litigation. I have also included the

process of litigation in hopes of helping our client to understand how this all

works. This memo will provide guidance in the upcoming meeting with Gregory

Crow, the decedent’s husband.

Background Information

On September 18, 2017, Samantha Crow, mother of 3, was killed as she was

running southbound on New Town Road in North Carolina. The accident occurred at

8:34 p.m. as Samantha was running towards her home. Samantha anticipated being

home before sunset. Therefore, she did not wear reflective clothing and instead was

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wearing a black sweatshirt with dark grey sweatpants. Samantha was struck by the

BMW, driven by Dr. Richard Sayer. At the time of the accident, Dr. Sayer was on his

way home from an outing held at the Small Valley Country Club, where he is a member.

Both Dr. Sayer and Samantha were heading in the same direction when Dr. Sayer

struck Samantha with his car. Dr. Sayer failed to stop, assuming he hit a deer, and

continued home. The speed limit on New Town Road is 35 miles per hour. According to

police reports, Dr. Sayer was traveling 50 miles per hour at the very moment he struck

Samantha. Upon being struck by Dr. Sayer’s car, Samantha’s body flew 167 feet, her

neck broke and she was killed instantly. There is no evidence that Samantha was alive

and/or conscious for any period of time after the accident. She never saw the car

coming.

An investigation led the police to Dr. Sayer’s home where his BMW was found

with significant damage to the front bumper, including blood stains and pieces of hair. It

is also noted that the BMW had been covered with a tarp. Dr. Sayer submitted to a

breathalyzer administered by the police. This was administered approximately 5 hours

after the accident occurred. The blood alcohol content was more than twice the legal

limit and Dr. Sayer was immediately arrested.

Dr. Sayer was ultimately charged and tried for second-degree manslaughter,

second-degree vehicular manslaughter, leaving the scene of an accident and driving

while intoxicated. During the trial, Dr. Sayer admitted to ordering several rum and Diet

Pepsi cocktails, Benedictine and brandy and a white crème de menthe at the Small

Valley Country Club that evening. Records subpoenaed from the country club for the

criminal trial also showed that Dr. Sayer paid for a $100 bottle of Silver Oak Cabernet

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Sauvignon. The jury acquitted Dr. Sayer of all felony charges. He was convicted of

misdemeanor driving while intoxicated, fined $1,000 and a 1-year jail sentence.

At the time of Samantha’s death, she was 42 years old. Gregory and Samantha

had been married for 13 years and have 3 children together. Samantha was an equity

partner at West & Crow, LLC. She earned $225,000 per year in her position. All the

family’s health insurance benefits were provided through Samantha’s firm. Samantha

also had a $1 million life insurance policy in place, all proceeds to be payable to her

husband. She had $2.5 million saved in her 401k individual retirement account. Gregory

is also the sole beneficiary of that account. Had she lived, it is estimated that Samantha

would have worked until she was 65 years old. Gregory is a stay at home dad and is

unemployed outside of the home.

Parties

The claim for wrongful death can only be brought by the personal representative,

or collector, of the decedent according to N.C. Gen. Stat. § 28A-18-2. The personal

representative will be the surviving spouse or parent. In our client’s case, Gregory Crow

is the personal representative. Gregory Crow will be the Plaintiff in this case. The

Plaintiff is the one who initiates the case against the defendant. The defendant will be

Dr. Sayer since he was driving while intoxicated, struck and ultimately caused the death

of Samantha. The Small Valley Country Club clearly overserved Dr. Sayer the evening

of the outing before he left in his vehicle highly intoxicated. In the state of North

Carolina, we cannot sue the Small Valley Country Club for overserving alcohol to Dr.

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Sayer according to N.C. Gen. Stat. § 18B-121. This statute only allows an injured

person to hold an alcohol vendor liable if:

1. The vendor negligently sells or serves alcohol to a minor under age 21,

2. The minor causes a car accident while under the influence of the alcohol that

was sold or served, and

3. The accident and resulting injuries were proximately caused by the minor’s

negligent driving while intoxicated.

North Carolina limits liability to injuries in motor vehicle accidents caused by an

intoxicated minor. N.C. Gen. Stat. § 18B-305 prohibits alcohol vendors from knowingly

providing alcohol to any intoxicated person, regardless of age. Alas, this section of the

law does not allow a third person who is injured by the intoxicated person to seek

damages from the alcohol vendor, even when the vendor knowingly provided alcohol in

violation of the statute. Instead, we can sue Small Valley Country Club for negligence

per se. Small Valley Country Club owed a duty of care to Samantha by monitoring the

alcohol consumption and behavior of Defendant Dr. Sayer and refusing service after

reaching a point of intoxication while on the premises. Small Valley Country Club

breached that duty of care when continuing to serve alcohol to the intoxicated Dr.

Sayer.

Causes of Action

Wrongful death claims are based on statutory law, because of this the claim must

conform with the requirements of the N.C. Gen. Stat. § 28A-18-2. The wrongful death

claim has the same elements of a common law negligence case, while adding the proof

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that there are legal beneficiaries entitled to any recovery. The basis for liability in this

claim is the defendant’s conduct or act was tortious and in violation of a legal duty of

reasonableness. This means that intentionally wrongful conduct, just as well as simple

negligence, is included in the liability of the defendant. Dr. Sayer was driving while

intoxicated and speeding 50 miles per hour in a 35 mile per hour zone. Dr. Sayer owed

a duty to use reasonable care in operating and controlling his vehicle. Dr. Sayer failed to

use reasonable care in operating his vehicle when he failed to follow the speed limit of

35 miles per hour.

The plaintiff must prove that the conduct of the defendant is both the cause in

fact and the proximate cause of Samantha’s death. We are required to prove that it is

appropriate to hold the defendant liable for the victim’s injuries because the injuries

were a foreseeable result of the defendant’s conduct. Dr. Sayer caused the death of

Samantha when he struck her with his vehicle and breached his duties owed to

Samantha. As a direct and proximate result of Dr. Sayer’s negligence and breach of

duties owed to Samantha, Samantha sustained fatal bodily injuries and was killed

instantly.

In some states strict liability is used in many vehicular accidents. If a driver in an

accident is intoxicated over the legal limit, despite not having any cause to the accident,

if the driver is intoxicated the driver will be held at fault. Strict liability is the legal

responsibility for damages, or injury, even if the person found strictly liable was not at

fault or negligent. However, in North Carolina, the Court of Appeals has concluded that

the intent required to prove intent to commit such a crime is the intent to accomplish the

criminal result. State v. Sines, 158 N.C. App. 79, 579 S.E.2d 895 (2003). North

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Carolina’s appellate courts have not evaluated the proof required for attempted impaired

driving. There is plenty of reasoning with strict liability regarding statutory sex offenses.

If we were to look at the reasoning based off the statutory sex offense context, it would

seem to require that the State prove the defendant intended to drive a vehicle on a

street, highway or public area. The State would not be required to prove that the

defendant intended to commit these acts while impaired as proof of knowledge of

impairment is not required to establish the offense of impaired driving. “Rejecting

argument that statutory provisions defining impaired driving based on a specified

alcohol concentration are void for vagueness, opining that while people may not know

when their blood alcohol concentration reaches the per se level, the do ‘know the line

exists’ and ‘that drinking enough alcohol before or during driving may cause them to

cross it’”. State v. Rose, 312 N.C. 441, 445 (1984). I would advise against claiming strict

liability towards Dr. Sayer. North Carolina does not recognize this liability in the context

of driving while intoxicated.

Intentional tort is an area of tort law in which a party faces civil liability for having

sought to cause an injury to another. Words are not enough to constitute assault, but

actions combined with words can constitute fault based on these elements:

1. The defendant acted in a way that created reasonable apprehension of

immediate harm

2. The defendant intentionally brought about the apprehension of immediate harm

3. The plaintiff was in fact apprehensive due to this act

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Statute of limitations for the recovery of damages according to N.C. Gen. Stat. § 1-

54(7a) is one-year applicable to intentional torts. In the case of Alford v. Catalytica

Pharm., Inc., 150 N.C. App. 489, 564 S.E.2d 267 (2002), the employees claimed their

employer intentionally engaged in misconduct knowing it was substantially certain to

cause serious injury or death to the employees was equivalent to an intentional tort.

This claim was barred by the statute of limitations. We could argue that Dr. Sayer

intentionally caused the death of Samantha when he decided to consume copious

amounts of alcohol and then got behind the wheel of his vehicle and illegally drove.

Considering the case of State v. Rose, the court agrees that people do know the line

exists and that drinking enough alcohol before or during driving will cause them to cross

the line of per se. This is no different than the case of Alford v. Catalytica Pharm., Inc.,

employees claimed their employer intentionally engaged in misconduct knowing it could

cause injury or death, just like everyone knows that driving intoxicated could cause

injury or death, but these claims would simply be barred by statute of limitations. I would

advise against claiming intentional tort since the statute of limitations on intentional torts

is one year.

Damages

The North Carolina Legislature contemplated a cause of action for wrongful

death when it enacted N.C. Gen. Stat. § 28A-18.2 in 1969. The current Wrongful Death

statute states:

a) When the death of a person is caused by a wrongful act, neglect or default of

another, such as would, if the injured person had lived, have entitled the injured

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person to an action for damages therefor, the person or corporation that would

have been so liable, and the personal representatives or collectors of the person

or corporation that would have been so liable, shall be liable to an action for

damages, to be brought by the personal representative or collector of the

decedent . . .

b) Damages recoverable for death by wrongful act include:

1) Expenses for care, treatment and hospitalization incident to the injury

resulting in death;

2) Compensation for pain and suffering of the decedent;

3) The reasonable funeral expenses of the decedent;

4) The present monetary value of the decedent to the persons entitled to

receive the damages recovered, including but not limited to compensation

for the loss of the reasonably expected;

i. Net income of decedent

ii. Services, protection, care and assistance of the decedent, whether

voluntary or obligatory, to the persons entitled to the damages

recovered,

iii. Society, companionship, comfort, guidance, kindly offices and

advice of the decedent to the persons entitled to the damages

recovered;

5) Such punitive damages as the decedent could have recovered pursuant to

Chapter 1D of the General Statutes had the decedent survived, and

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punitive damages for wrongfully causing the death of the decedent

through malice or willful or wanton conduct, as defined in G.S. iD-5;

6) Nominal damages when the jury so finds.

In our client’s case we need evidence proving the expenses for care, treatment

and hospitalization incident to the injury causing death, and funeral expenses of

Samantha. This only requires the tender of the specific invoices. This Act allows

recovery of compensation for the pain and suffering of the decedent. For there to be

recovery, the victim must have been conscious for their pain and suffering. The facts

that have been provided explain that Samantha died instantly and there is no evidence

proving that Samantha was alive/conscious for any time after the accident took place.

We cannot recover damages for pain and suffering of the decedent in this case.

The Act provides for recovery of the net income of the decedent. This means

Samantha’s total lost future income from all sources, netted amounts that would be paid

in taxes and reduced to a present value. Recoverable income lost includes:

1. Samantha’s salary of $225,000,

2. Fringe benefits such as health insurance benefits provided through

Samantha’s firm that covered her and her family,

3. $1 million life insurance policy,

4. $2.5 million 401K.

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The damage calculations are based on the decedent’s life expectancy, health and

habits, employment, education and training, earnings etc. Had Samantha lived, it is

estimated that she would have worked until she was 65 years old.

“Services, protection, care and assistance of the decedent, whether voluntary or

obligatory, to the persons entitled to the damages recovered”. This subcategory

connects the dollar damages of lost income and more intangible damage elements like

society and companionship. Damages such as these include the value of running the

household. Cooking, cleaning, tending to the children and doing general errands are

examples of running a household. These services have a monetary value that can be

calculated.

Loss of society and companionship are intangible damages. This is intended to

compensate the beneficiaries for the sense of loss, anguish and heartache resulting

from the wrongful death. Evidence such as letters, cards, photographs and videos, and

testimony of witnesses should be admissible to prove the measure of the loss of

Samantha. Friends and family members both will need to help to prove the loss is great.

This Act allows the recovery of punitive damages if Samantha could have

recovered them if she had survived. For the award of punitive damages, it must be

supported by clear and convincing proof of malice or willful or wanton conduct. In North

Carolina there is a cap on punitive damages. It is capped at 3 times compensatory

damages or $250,000, whichever is greater.

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Nominal damages are for when there are no actual damages. For instance,

nominal damages are required when the jury finds that the plaintiff in a wrongful death

claim has suffered no compensable loss. This is irrelevant in our client’s case.

Court

The U.S. Supreme Court addressed the issue on jurisdiction in Wilkins v. Ellett ,

76 U.S. 740, 1869 WL 11617. The Supreme Court stated, “it has long been settled, and

is a principle of universal jurisprudence in all civilized nations, that the personal estate of

the deceased is to be regarded, for the purpose of succession and distribution,

wherever situated, as having no other locality than that of his domicile; and if he dies

interstate the succession is governed by the law of the place where he was domiciled at

the time of his decease, and not by the conflicting laws of the various places where the

property happened at the time to be situated”. Typically, where Samantha’s legal home

is, is where the jurisdiction of this case lies. In a wrongful death case, the laws of the

State where the accident occurred may trump the State of domicile (person’s legal

home). Hartness v Pharr 133 NC 566, 45 SE 901 (1903) Hartness, is a North Carolina

Supreme Court case where it was determined that the laws of the State where the

action takes place applies to the process of wrongful death proceeds. In Hartness, the

decedent was a South Carolina resident who died in North Carolina. The Court ruled

that North Carolina law applied and that the wrongful death proceeds would be

distributed based upon North Carolina statutes. Considering the legal home of

Samantha and the place of where the accident occurred, it is safe to say that the

jurisdiction lies in this county.

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In North Carolina, the Superior Court handles all civil matters more than $10,000.

Bench trials are available if a jury trial is not demanded. Juries are comprised of 12

jurors. A unanimous verdict by all 12 jurors is required. Mediation is required. In terms of

venue and recovery, court should be litigated in the county in which the subject of the

action is situated. Subject to the power of the court to change the place of trial.

Next Steps

The litigation phase includes the following steps in a lawsuit:

1. Filing a Complaint or Writ of Summons

a. According to N.C. Gen. Stat. § 1A-1, Rule 17 a complaint should be filed

by a real party in interest.

b. This is used to commence a litigation or lawsuit. These documents are

referred to as pleadings.

2. Service – Delivery of the Summons & Complaint to the defendant

a. Plaintiff’s attorney must obtain proper delivery of the summons and

complaint to the defendant. These documents put defendant on official

notice that a lawsuit has been filed against him/her.

3. Responsive Pleadings

a. The Rules of Civil Procedure allow defendant 30 days to file an answer or

other response.

4. Discovery

a. After defendant has filed his answer, the process of discovery takes place.

This allows time for both sides to gather information on the case and learn

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as much as possible about the relevant facts, so they can properly try their

case in front of a judge or jury.

b. According to N.C. Gen. Stat. § 1A-1, Rule 26 Both parties can exchange

written questions and requests for documents. Both sides are also legally

required to provide their answers and documents upon request unless

they formally object.

5. Mediation

a. This is an attempt to settle outside the courtroom. This is the last step on

the path to Superior Court trial.

b. Most lawsuits are ordered to mandatory mediation.

c. The attorneys of both parties agree on a third-party mediator to preside

over the mediation conference.

d. This process has the potential of saving time and resources is resolved

before trial.

6. Trial

a. If mediation fails, then the case moves forward to trial.

b. At trial, both parties will present their cases to the Superior Court judge

and jury who will ultimately deicide the case.

Conclusion

In conclusion, this memo has provided the information requested. This pre-

litigation memo will serve as a guideline in the upcoming meeting with Gregory Crow.

There is detail in deciding whom the parties are to this lawsuit, the causes of action

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suggested, damages I believe can be recovered, which court this will be commenced in

as well as clear and defined steps in initiating this litigation and the process throughout.

Regards,

Angeline O’Bara

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NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

LINCOLN COUNTY 05 CVS __________ ESTATE OF SAMANTHA CROW,By Gregory Smith, Personal Representative123 New Town Rd,Denver, NC 28037

Plaintiff,

COMPLAINT v.

DR. RICHARD SAYER456 Old Town Rd,Denver, NC 28037

And

SMALL VALLEY COUNRTY CLUB789 Small Valley Ln,Denver, NC 28037Serve on: Jane Doe, Representative

Defendant.

Plaintiff, the Estate of Samantha Crow, by and through Gregory Crow as

Personal Representative, by and through their attorney, James Reynolds, bring suit

against Defendants, Dr. Richard Sayer (hereinafter “Defendant Sayer”) and Small

Valley Country Club (hereinafter “Defendant Small Valley”), and state as follows:

VENUE AND JURISDICTION

1. The accident took place in Lincoln County, North Carolina.

2. Gregory Crow is the husband and Personal Representative of the Estate of

Samantha Crow and is a resident of Lincoln County, North Carolina.

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3. Gregory Crow is the primary beneficiary in this action for wrongful death claims

pursuant to N.C. Gen. Stat. § 28A-18-2.

4. Defendant Sayer is a resident of Lincoln County, North Carolina.

5. Defendant Small Valley is an establishment that regularly conducts business in the

State of North Carolina.

FACTS OF THE ACCIDENT

6. The Plaintiff incorporates herein by reference all preceding paragraphs.

7. On September 18, 2017, at approximately 8:34 p.m., the Decedent, Samantha

Crow, was running southbound on New Town Road in Denver, North Carolina

towards her home.

8. At the time of the accident Defendant Sayer was on his way home from Defendant

Small Valley where he had consumed several rum and Diet Pepsi cocktails,

Benedictine and brandy and a white crème de menthe as well as a bottle of Silver

Oak Cabernet Sauvignon.

9. Defendant Sayer was operating the BMW while intoxicated and speeding at a rate of

50 miles per hour in a 35 mile per hour zone heading in the same direction as

Samantha Crow on New Town Road.

10.Defendant Sayer struck Samantha Crow with the BMW causing her body to fly 167

feet which caused her neck to break and she was killed instantly.

11.Defendant Sayer did not stop and continued to drive home.

12.Police investigation led Small Valley Police to Defendant Sayer’s home where the

BMW was found parked.

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13.Defendant Sayer submitted to a breathalyzer administered by police nearly five

hours after the accident took place and showed a blood alcohol content was more

than twice the legal limit.

14.Defendant Sayer was convicted of misdemeanor driving while intoxicated, fined

$1,000 and given a one-year jail sentence.

15.Samantha Crow, at the time of her death, was survived by her minor children,

Jessica Crow, Bradley Crow, Cooper Crow and her Husband Gregory Crow.

COUNT I – WRONGFUL DEATH

16.The Plaintiff incorporates herein by reference all preceding paragraphs.

17.Defendant Sayer owed Samantha Crow a duty to use reasonable care in operating

and controlling his vehicle.

18.Defendant Sayer failed to use reasonable care in operating his vehicle while

intoxicated when he struck Samantha Crow and did not stop to assess the accident.

19.Defendant Sayer breached his duties owed to Samantha Crow.

20.As a direct and proximate result of Defendant Sayer’s negligence and breach of

duties owed to Samantha Crow, Samantha Crow sustained fatal bodily injuries and

died instantly due to a broken neck at 8:34 p.m. on September 18, 2017.

21.As a direct and proximate result of Defendant Sayer’s negligence in causing the

death of Samantha Crow, Plaintiff Gregory Crow and children of Samantha Crow

have sustained pecuniary loss, economic damages and loss, mental anguish,

emotional pain and suffering, loss of society, loss of companionship, loss of comfort,

loss of protection, loss of parental care, loss of advice, loss of counsel, loss of

training, loss of guidance, loss of education and loss of filial care.

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22.This Complaint was timely filed within two years of the death of Samantha Crow

pursuant to N.C. Gen. Stat. § 1-53.

COUNT II NEGLIGENCE


24.Defendant Sayer had a duty to act reasonably and use due care while driving.

Defendant Sayer had a duty to pay attention to pedestrians, to maintain a proper

lookout, to obey the laws and rules of the State of North Carolina, to maintain proper

speed for the conditions, to reduce speed to avoid an accident and to control his

vehicle to avoid collision.

25.Defendant Sayer breached that duty of due care by failing to pay proper attention to

the roadway, pedestrians, failing to maintain a proper lookout, failing to obey the

laws and rules of the State of North Carolina, failing to maintain a proper speed for

the conditions, failing to reduce speed to avoid an accident and failing to control his

vehicle to avoid a collision.

26.As a direct result of the accident and the negligence of Defendant Sayer, Samantha

Crow sustained fatal bodily injuries and pronounced dead at approximately 8:34

p.m.

27.As a direct result of the accident and the negligence of Defendant Sayer, Plaintiff

has suffered incurred medical expenses, funeral expenses and other damages.

28.All the above damages were directly and proximately caused by the aforementioned

negligence of Defendant Sayer and were incurred without contributory negligence

on part of the decedent, Samantha Crow, or an opportunity for Samantha Crow to

avoid the accident.

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COUNT III – NEGLIGENCE PER SE


30.The Plaintiff is informed, believes and therefore alleges that, at all times relevant

herein, and prior to September 18, 2017, Defendant Small Valley, by and through

their employees and agents who were acting within the course and scope of their

employment and agency relationships, knew, or in the exercise of reasonable care

should have known, pursuant to N.C. Gen. Stat. § 18B-305(a), it shall be unlawful

for a permittee or his employee or for an ABC store employee to knowingly sell or

give alcoholic beverages to any person who is intoxicated.

31.Defendant Small Valley owed a duty of care to Samantha Crow by monitoring the

alcohol consumption and behavior of Defendant Sayer and refusing service after

reaching a point of intoxication while on the premises of Small Valley Country Club.

32.Defendant Small Valley breached that duty of care when continuing to serve alcohol

to the intoxicated Defendant Sayer.

33.Defendant Small Valley is negligent per se for serving alcohol to the already

intoxicated Defendant Sayer the evening of September 18, 2017.

34.Defendant Sayer admitted to ordering several rum and Diet Pepsi cocktails,

Benedictine and brandy, a white crème de menthe and a bottle of Silver Oak

Cabernet Sauvignon from Defendant Small Valley. Records subpoenaed from

Defendant Small Valley confirm Defendant Sayer’s admission.

35.Defendant Small Valley’s violation of N.C. Gen. Stat. § 18B-305(a) constitutes

negligence per se.

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36.As a direct and proximate result of Defendant Small Valley’s negligence per se,

Decedent sustained the fatal bodily injuries and losses as set forth above.

WHEREFORE, Plaintiff requests that judgement be entered in favor of the Plaintiff and

against the Defendants, in an amount to fairly compensate him for the injuries as set

forth above, court costs, expert witness fees, statutory interest from the date this cause

of action accrued or as otherwise permitted under North Carolina law and for such other

and further relief as this Court deems just and proper including:

1. Pursuant to N.C. Gen. State. § 28A-18.2, for an amount which will reasonably

compensate the Plaintiff for care, treatment and hospitalization incident to the injury

resulting in death;

2. For an amount which will reasonably compensate the Plaintiff for pain and suffering

of the decedent;

3. For an amount which will reasonably compensate the funeral expenses of the

decedent;

4. For an amount which will reasonably compensate the present monetary value of

decedent to the Plaintiff, including but not limited to compensation for the loss of the

reasonably expected;

a. Net income of decedent

b. Services, protection, care and assistance of the decedent, whether

voluntary or obligatory, to the Plaintiff,

c. Society, companionship, comfort, guidance, kindly offices and advice of

the decedent to the Plaintiff;

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5. For an amount which will reasonably compensate such punitive damages as the

decedent could have covered pursuant to Chapter 1D of the General Statutes had

the decedent survived, and punitive damages for wrongfully causing the death of the

decedent through malice or willful or wanton conduct, as defined in G.S. iD-5.

This the 20th day of July 2018.

_____________________________________

James ReynoldsAttorney at LawReynolds & Starr, P.C.1011 Middle Town RdDenver, NC 28037 123-456-7890

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STATE OF NORTH CAROLINA Lincoln

County

File No.

In The General Court Of Justice District Superior Court Division

Name Of Plaintiff

Gregory Crow

CIVIL SUMMONS ALIAS AND PLURIES SUMMONS

G.S. 1A-1, Rules 3, 4

Address

123 New Town RdCity, State, Zip

Denver, NC 28037VERSUS

Name Of Defendant(s)

Dr. Richard SayerAndJane Doe, representativeSmall Valley Country Club

Date Original Summons Issued

Date(s) Subsequent Summons(es) Issued

To Each Of The Defendant(s) Named Below:

Name And Address Of Defendant 1

Dr. Richard Sayer456 Old Town Rd,Denver, NC 28037

Name And Address Of Defendant 2

Jane Doe, representativeSmall Valley Country Club789 Small Valley Ln,Denver, NC 28037

A Civil Action Has Been Commenced Against You!

You are notified to appear and answer the complaint of the plaintiff as follows:

1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiff's last known address, and

2. File the original of the written answer with the Clerk of Superior Court of the county named above.

If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.

Name And Address Of Plaintiff's Attorney (If None, Address Of Plaintiff)

James ReynoldsReynolds & Starr, P.C.1011 Middle Town RdDenver, NC 28037

Date Issued

7/18/2018Time

2:00AM X PM

Signature

Deputy CSC Assistant CSC Clerk Of Superior Court

ENDORSEMENTThis Summons was originally issued on the date indicated above and returned not served. At the request of the plaintiff, the time within which this Summons must be served is extended sixty (60) days.

Date Of Endorsement TimeAM PM

Signature

Deputy CSC Assistant CSC Clerk Of Superior Court

programs in which most cases where the amount in controversy is $15,000 orless are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for mandatory arbitration, and,

if

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NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION

so, what procedure is to be followed.

AOC-CV-100, Rev. 10/01 (Over

© 2001 Administrative Office of the Courts

)

RETURN OF SERVICEI certify that this Summons and a copy of the complaint were received and served as follows:

DEFENDANT 1Date Served Time Served

AM PM Name Of Defendant

By delivering to the defendant named above a copy of the summons and complaint.

By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a person of suitable age and discretion then residing therein.

As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named below.

Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

Other manner of service (specify)

Defendant WAS NOT served for the following reason:

DEFENDANT 2Date Served Time Served

AM PM Name Of Defendant

By delivering to the defendant named above a copy of the summons and complaint.

By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a person of suitable age and discretion then residing therein.

As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named below.

Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

Other manner of service (specify)

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Defendant WAS NOT served for the following reason.

Service Fee Paid

$Signature Of Deputy Sheriff Making Return

Date Received Name Of Sheriff (Type Or Print)

Date Of Return County Of Sheriff

AOC-CV-100, Side Two, Rev. 10/01© 2001 Administrative Office of the Courts

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NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION LINCOLN COUNTY GREGORY CROW123 New Town Rd,Denver, NC 28037

Plaintiff, REQUEST FOR VOLUNTARY DISCOVERY

(Alternative Motion for Discovery) VS.

Dr. RICHARD SAYER 456 Old Town Rd,Denver, NC 28037 Defendant. ______________________________________________________________________

NOW COMES the Plaintiff, by and through the undersigned counsel, James Reynolds,

Attorney at Law, and hereby requests voluntary discovery from the Defendant, pursuant

N.C. Gen. Stat. § 15A-902.

1. The Plaintiff requests the following materials in discovery:

. . . the complete files of all or any reports received or generated

regarding the Defendant’s driving record.


. . . notice to the plaintiff of any expert witness that the Defendant

reasonably expects to call as a witness at trial. Each such witness

shall prepare, and the Defendant shall furnish to the plaintiff, a

report of the results of any examinations or tests conducted by the

26

expert. The Defendant shall also furnish to the plaintiff the expert’s

curriculum vitae, the expert’s opinion, and the underlying basis for

that opinion. The Defendant shall give the notice and furnish the

materials required by this subsection within a reasonable time prior

to trial, as specified by the court.


. . . at the beginning of jury selection, a written list of the names of all

other witnesses whom the Defendant reasonably expects to call during

the trial.

4. A complete copy of the Defendant's prior criminal record, if any, including but not

limited to:

a. All juvenile and adult detention, jail, prison, parole, probation, and

presentence investigation records and reports;

b. All arrest, conviction, and adult and juvenile criminal offense

records and reports;

c. All records and reports of any law enforcement authority as that

term is defined in paragraph 4(a) above;

d. All records and reports of any detention or court authority;

e. All records and reports of any prosecuting authority as that term is

defined in paragraph 4(b) above;

5. The Plaintiff requests an opportunity to inspect and copy or photograph results or

reports of physical or mental examinations, or of tests, measurements or

experiments made in connection with the case, or copies thereof, within the

27

possession, custody, or control of the Defendant, including but not limited to DNA

analysis, fingerprints, handwriting, ballistics, chemical or other scientific or

medical tests or analyses; this requested information includes any and all testing

procedures and all underlying data.

WHEREFORE the Plaintiff respectfully prays unto this Honorable Court for the

following relief:

1. That the Defendant voluntarily provide the aforementioned items of discovery

within seven 7 days of the service of this Request pursuant to N.C. Gen. Stat.

§ 15A-902(a);

2. That if the State fails or refuses to provide the requested voluntary discovery

herein, within the time period prescribed by law, that the Court treat this

voluntary discovery request as a motion for the Court to issue an Order

compelling the Office of the District Attorney to provide the required discovery

pursuant to Article 48 of the North Carolina General Statutes.

This the 19th day of July 2018

________________________________ James Reynolds

Attorney at Law 1011 Middle Town RdDenver, NC 28037123-456-7890

28

Certificate of Service

This shall certify that a copy of the foregoing Request for Voluntary Discovery

(Alternative Motion for Discovery) was this day served upon Dr. Richard Sayer by the

following method:

_____ depositing a copy hereof in a postpaid wrapper in a post office or

official depository under the exclusive care, custody, and control of the

United States Postal Service, properly addressed to Dr. Richard Sayer;

_____ by personally serving Dr. Richard Sayer via hand delivery;

_____ by transmitting a copy via facsimile transmittal to Dr. Richard Sayer.

This 19th day of July 2018.

______________________________

James ReynoldsAttorney at Law 1011 Middle Town RdDenver, NC 28037123-456-7890

29

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION LINCOLN COUNTY GREGORY CROW123 New Town Rd,Denver, NC 28037

Plaintiff, REQUEST FOR VOLUNTARY DISCOVERY

(Alternative Motion for Discovery) VS.

SMALL VALLEY COUNTRY CLUB789 Small Valley Ln,Denver, NC 28037Serve on: Jane Doe, Representative Defendant. ______________________________________________________________________

NOW COMES the Plaintiff, by and through the undersigned counsel, James Reynolds,

Attorney at Law, and hereby requests voluntary discovery from the Defendant, pursuant

N.C. Gen. Stat. § 15A-902.


. . . notice to the plaintiff of any expert witness that the Defendant

reasonably expects to call as a witness at trial. Each such witness

shall prepare, and the Defendant shall furnish to the plaintiff, a

report of the results of any examinations or tests conducted by the

expert. The Defendant shall also furnish to the plaintiff the expert’s

curriculum vitae, the expert’s opinion, and the underlying basis for

that opinion. The Defendant shall give the notice and furnish the

30

materials required by this subsection within a reasonable time prior

to trial, as specified by the court.


. . . at the beginning of jury selection, a written list of the names of all

other witnesses whom the Defendant reasonably expects to call during

the trial.

8. North Carolina’s liquor control file pertaining to Small Valley Country Club.

9. Policies and procedures pertaining to Small Valley Country Club.

10. Training materials used at Small Valley Country Club, including but not limited to,

national training programs for alcohol awareness instruction.

WHEREFORE the Plaintiff respectfully prays unto this Honorable Court for the

following relief:

3. That the Defendant voluntarily provide the aforementioned items of discovery

within seven 7 days of the service of this Request pursuant to N.C. Gen. Stat.

§ 15A-902(a);

4. That if the Defendant fails or refuses to provide the requested voluntary

discovery herein, within the time period prescribed by law, that the Court treat

this voluntary discovery request as a motion for the Court to issue an Order

compelling the Defendant to provide the required discovery pursuant to Article

48 of the North Carolina General Statutes.

This the 19th day of July 2018

31

________________________________ James Reynolds


32


This shall certify that a copy of the foregoing Request for Voluntary Discovery

(Alternative Motion for Discovery) was this day served upon Jane Doe, representing the

Small Valley Country Club by the following method:



United States Postal Service, properly addressed to Jane Doe,

representing Small Valley Country Club;

_____ by personally serving Jane Doe, representing Small Valley Country Club

via hand delivery;

_____ by transmitting a copy via facsimile transmittal to Jane Doe,

representing Small Valley Country Club.


______________________________

James ReynoldsAttorney at Law 1011 Middle Town RdDenver, NC 28037123-456-7890

33

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICESUPERIOR COURT DIVISION

COUNTY OF LINCOLN [File #]

IN THE MATTER OF:

Wrongful Death of Samantha CrowNOTICE OF DEPOSITION

______________________________________________________________________

To: Dr. Richard Sayer456 Old Town Rd.,Denver, NC 28037

Please take notice that, pursuant to Rule 30 of the North Carolina Rules of Civil

Procedure, the undersigned will take the deposition upon oral examination of Dr.

Richard Sayer. The deposition will begin at 11 a.m. on Thursday, July 18, 2018 at the

office of Attorney James Reynolds, 1011 Middle Town Rd, Denver NC 28037. Said

deposition shall continue from day-to-day until completion, shall be recorded by sound

or stenographic means and shall be before a Notary Public or other individual qualified

to administer oaths.

Dr. Richard Sayer is requested to bring and make available for inspection those

documents identified in Exhibit A attached hereto.


___________________________ James Reynolds

Attorney at Law 1011 Middle Town Rd Denver, NC 28037 123-456-7890

34

NOTICE OF DEPOSITION

EXHIBIT A

1. All documents in your possession or control upon which you have relied on in any

manner in forming your opinions in this matter, including, but not limited to, medical

records, depositions, pleadings and other similar documents.

2. All materials provided to you by the Small Valley Police Department which you have

reviewed and upon which you have relied in any manner in forming your opinions in this

matter, including, but not limited to, any chronologies or summaries.

3. All reports, whether in formal or draft form, made by you referring or relating in any

way to the issues in this case.

4. All research completed or done by you or at your direction, related in any way to the

issues involved in this case.

5. Produce a complete list of all cases in which you have given a deposition and/or trial

testimony, including the full case caption, court file number, county and state in which

the case was pending, a summary of the allegations in the case, the opinions you

rendered, whether you testified and on whose behalf.

35

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing NOTICE OF DEPOSITION has been

served on the parties listed below by:

( ) depositing said notice in a postpaid, properly addressed wrapper in a Post Office

or official depository under the exclusive care and custody of the United States Post Office

Department.

[Insert name and address of attorney or party served in this manner]

( ) hand-delivery to the attorney or party by leaving it at the attorney's office with

a partner or employee.

[Insert name of attorney served in this manner]

( ) sending it to the attorney's office by a confirmed telefacsimile transmittal for

receipt by 5:00 P.M. Eastern Time.

[Insert name and fax number of attorney served in this manner]

THIS the _______ day of _________________, 2018.

___________________________James ReynoldsAttorney at Law 1011 Middle Town RdDenver, NC 28037123-456-7890

36

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICESUPERIOR COURT DIVISION

COUNTY OF LINCOLN [File #]

IN THE MATTER OF:

Wrongful Death of Samantha CrowNOTICE OF DEPOSITION

______________________________________________________________________

To: Jane DoeSmall Valley Country Club789 Small Valley Ln,Denver, NC 28037

Please take notice that, pursuant to Rule 30 of the North Carolina Rules of Civil

Procedure, the undersigned will take the deposition upon oral examination of Jane Doe

representing Small Valley Country Club. The deposition will begin at 11 a.m. on Friday,

July 19, 2018 at the office of Attorney James Reynolds, 1011 Middle Town Rd, Denver

NC 28037. Said deposition shall continue from day-to-day until completion, shall be

recorded by sound or stenographic means and shall be before a Notary Public or other

individual qualified to administer oaths.

Jane Doe is requested to bring and make available for inspection those

documents identified in Exhibit A attached hereto.

This 19th day of July 2018. ___________________________

James Reynolds Attorney at Law 1011 Middle Town Rd Denver, NC 28037 123-456-7890

37

NOTICE OF DEPOSITION

EXHIBIT A

1. All documents in your possession or control upon which you have relied on in any

manner in forming your opinions in this matter, including, but not limited to, medical

records, depositions, pleadings and other similar documents.

2. All materials provided to you by the Small Valley Police Department which you have

reviewed and upon which you have relied in any manner in forming your opinions in this

matter, including, but not limited to, any chronologies or summaries.

3. All reports, whether in formal or draft form, made by you referring or relating in any

way to the issues in this case.

4. All research completed or done by you or at your direction, related in any way to the

issues involved in this case.

5. Produce a complete list of all cases in which you have given a deposition and/or trial

testimony, including the full case caption, court file number, county and state in which

the case was pending, a summary of the allegations in the case, the opinions you

rendered, whether you testified and on whose behalf.

38


I hereby certify that a copy of the foregoing NOTICE OF DEPOSITION has been

served on the parties listed below by:

( ) depositing said notice in a postpaid, properly addressed wrapper in a Post Office

or official depository under the exclusive care and custody of the United States Post Office

Department.








THIS the _______ day of _________________, 2018.


39

Lincoln

Gregory Crow

Dr. Richard Sayer and Small Valley Country Club

Small Valley Police Department321 Somewhere Ln., Denver NC 28037

123-638-7890

X

Entire investigation file of Dr. Richard Sayer from the incident occurring on September 18, 2017

Reynolds & Starr, P.C.1011 Middle Town RdDenver, NC 28037

James Reynolds Reynolds & Starr, P.C.Attorney at Law 1011 Middle Town Rd

Denver, NC 28037

August 1, 2018

2:00

X

X

July 18, 2018

X123-456-7890

X

William Michalek

40

NOTE: Rule 45, North Carolina Rules of Civil Procedure, Subsections (c) and (d).(c) Protection of Persons Subject to Subpoena(1) Avoid undue burden or expense . - A party or an attorney responsible for the (6) Order to compel; expenses to comply with subpoena. - When a court enters an

issuance and service of a subpoena shall take reasonable steps to avoid imposing order compelling a deposition or the production of records, books, papers, an undue burden or expense on a person subject to the subpoena. The court shall documents, electronically stored information, or other tangible things, the order enforce this subdivision and impose upon the party or attorney in violation of this shall protect any person who is not a party or an agent of a party from significant requirement an appropriate sanction that may include compensating the person expense resulting from complying with the subpoena. The court may order that the unduly burdened for lost earnings and for reasonable attorney’s fees. person to whom the subpoena is addressed will be reasonably compensated for

the cost of producing the records, books, papers, documents, electronically stored (2) For production of public records or hospital medical records . - Where the subpoena information, or tangible things specified in the subpoena.

commands any custodian of public records or any custodian of hospital medical records, as defined in G.S. 8-44.1, to appear for the sole purpose of producing (7) Trade secrets; confidential information. - When a subpoena requires disclosure of a certain records in the custodian’s custody, the custodian subpoenaed may, in trade secret or other confidential research, development, or commercial information, lieu of personal appearance, tender to the court in which the action is pending by a court may, to protect a person subject to or affected by the subpoena, quash or registered or certified mail or by personal delivery, on or before the time specified modify the subpoena, or when the party on whose behalf the subpoena is issued in the subpoena, certified copies of the records requested together with a copy of shows a substantial need for the testimony or material that cannot otherwise be met the subpoena and an affidavit by the custodian testifying that the copies are true without undue hardship, the court may order a person to make an appearance or and correct copies and that the records were made and kept in the regular course produce the

materials only on specified conditions stated in the order. of business, or if no such records are in the custodian’s custody, an affidavit to that effect. When the copies of records

are personally delivered under this subdivision, (8) Order to quash; expenses. - When a court enters an order quashing or modifying a receipt shall be obtained from the person receiving the records. Any original or the subpoena, the court may order the party on whose behalf the subpoena is certified copy of records or an affidavit

delivered according to the provisions of this issued to pay all or part of the subpoenaed person’s reasonable expenses subdivision, unless otherwise objectionable, shall

be admissible in any action or including attorney’s fees.

proceeding without further certification or authentication. Copies of hospital medical records tendered under this subdivision shall not be open to inspection or copied by (d) Duties in Responding to Subpoena any person, except to the parties to the case or proceedings and their attorneys in depositions, until ordered published by the judge at the time of the hearing or trial. (1) Form of response. - A person responding to a subpoena to produce records, Nothing contained herein shall be construed to waive the physician-patient privilege books, documents, electronically stored information, or tangible things shall or to require any privileged communication under law to be disclosed. produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. (3) Written objection to subpoenas. - Subject to subsection (d) of this rule, a person commanded to appear at a deposition or to produce and permit the inspection and (2) Form of producing electronically stored information not specified. - If a subpoena copying of records, books, papers, documents, electronically stored information, does not specify a form for producing electronically stored information, the person or tangible things may, within 10 days after service of the subpoena or before the responding must produce it in a form or forms in which it ordinarily is maintained or time specified for compliance if the time is less than 10 days after service, serve in a reasonably useable form or forms. upon the party or the attorney designated in the subpoena written objection to the (3) Electronically stored information in only one form . - The person responding need

subpoena, setting forth the specific grounds for the objection. The written objection not produce the same electronically stored information in more than one form. shall comply with the requirements of Rule 11. Each of the following grounds may

be sufficient for objecting to a subpoena: (4) Inaccessible electronically stored information . - The person responding need a. The subpoena fails to allow reasonable time for compliance. not provide discovery of electronically stored information from sources that the

b. The subpoena requires disclosure of privileged or other protect ed matter person identifies as not reasonably accessible because of undue burden or cost. and no exception

or waiver applies to the privilege or protection. On motion to compel discovery or for a protective order, the person responding c. The subpoena subjects a person to an undue burden or expense. must show that the information is not reasonably accessible because of undue d. The subpoena is otherwise unreasonable or oppressive. burden or cost. If that showing is made, the court may nonetheless order discovery e. The subpoena is procedurally defective. from such sources if the requesting party shows good cause, after considering the limitations of Rule 26(b)(1a).The court may

specify conditions for discovery, (4) Order of court required to override objection. - If objection is made under including requiring the party that seeks discovery from a nonparty to bear the

subdivision (3) of this subsection, the party serving the subpoena shall not be costs of locating, preserving, collecting, and producing the electronically stored entitled to compel the subpoenaed person’s appearance at a deposition or to

information involved. inspect and copy materials to which an objection has been

made except pursuant to an order of the court. If objection is made, the party serving the subpoena may, (5) Specificity of objection. - When information subject to a subpoena

is withheld on upon notice to the subpoenaed person, move at any time for an order to compel the objection that it is subject to protection as trial preparation materials, or that the

subpoenaed person’s appearance at the deposition or the production of the it is otherwise privileged, the objection shall be made with specificity and shall be materials designated in

the subpoena. The motion shall be filed in the court in the supported by a description of the nature of the communications, records, books, county in which the deposition or

production of materials is to occur. papers, documents, electronically stored information, or other tangible things not produced, sufficient for the requesting party to contest the objection. (5) Motion to quash or modify subpoena. - A person commanded to appear at a trial, hearing, deposition, or to produce and permit the inspection and copying of records, books, papers, documents, electronically stored information, or other tangible things, within 10 days after service of the subpoena or before the time specified for compliance if the time is less than 10 days after service, may file a motion to quash or modify the subpoena. The court shall quash or modify the subpoena if the subpoenaed person demonstrates the existence of any of the reasons set forth in subdivision (3) of this subsection. The motion shall be filed in the court in the county in which the trial, hearing, deposition, or production of materials is to occur.

INFORMATION FOR WITNESS

NOTE: If you have any questions about being subpoenaed as a witness, you should contact the person named on Page One of this Subpoena in the box labeled “Name And Address Of Applicant Or Applicant’s Attorney.”

DUTIES OF A WITNESS BRIBING OR THREATENING A WITNESS

• Unless otherwise directed by the presiding judge, you must answer all questions It is a violation of State law for anyone to attempt to bribe, threaten, harass, or

asked when you are on the stand giving testimony. intimidate a witness. If anyone attempts to do any of these things concerning your

• In answering questions, speak clearly and loudly enough to be heard. involvement as a witness in a case, you should promptly report that to the district • Your answers to questions must be truthful. attorney or the presiding judge.

WITNESS FEE

• If you are commanded to produce any items, you must bring them with you to court A witness under subpoena and that appears in court to testify, is entitled to a small or to the deposition. daily fee, and to travel expense reimbursement, if it is necessary to travel outside the

• You must continue to attend court until released by the court. You must continue to county in order to testify. (The fee for an “expert witness” will be set by the presiding

attend a deposition until the deposition is completed. judge.) After you have been discharged as a witness, if you desire to collect the

statutory fee, you should immediately contact the Clerk’s office and certify your attendance as a witness so that you will be paid any amount due you.

AOC-G-100, Side Two, Rev. 2/18

41

© 2018 Administrative Office of the Courts


Memo

42

To: James Reynolds


Date: July 12, 2018

Re: Analyzing Defendant’s Answers – Gregory Crow Case

For this assignment I have been asked to analyze the potential merit of the

Defendant’s defenses raised. In this memo I will identify, explain and analyze the

merits of each defense. I will also explain what facts the Defendant must prove to

be successful on each defense and explain whether these defenses have any

strengths or weaknesses based upon the law in North Carolina.

1. Statute of Limitations

Defendant claims that this lawsuit is barred by the statute of limitations

The incident occurred on September 18, 2017. The Statute of Limitations for the

commencement of a wrongful death action is two years according to N.C. Gen. Stat. §

1-53. In the case of Brown v. Lumbermens Mut. Cas. Co., 285 N.C. 313, 204 S.E.2d

829 (1974) it explains that, “The two-year period now prescribed for the commencement

of a wrongful death action is not a condition precedent annexed to the cause of action

as was the one-year limitation specified in G.S. 28-173 prior to its amendment in 1951.

It is a statute of limitations”. In the case of our client it has not been one full year since

the death of Samantha Crow. “A plea of the statute of limitations is a plea in bar

‘sufficient to destroy the plaintiff’s action.’ When established by proof, it defeats and

43

destroys the action altogether”. Bank v. Evans, 191 N.C. 535, 538, 132 S.E. (1926).

Defendant has no merit in this defense.

CONCLUSION: This lawsuit is NOT barred by statute of limitations. Our client has 2

years to commence a wrongful death claim.

2. Contributory Negligence of the Plaintiff

Defendant claims that the lawsuit is barred by the contributory negligence of

the decedent, Samantha Crow, for running in the dark, on a busy road and

neglecting to wear any reflective clothing

The North Carolina Supreme Court has laid out the general rule for contributory

negligence: It is an affirmative defense and, as a general proposition, any negligence on

the part of a party that is a proximate cause of injury will bar recovery for that party.

While there is no law in North Carolina that states a pedestrian walking at night

must wear reflective clothing, many safety tips provided by law enforcement suggests

the best way for pedestrians to be safe at night is to wear reflective clothing. According

to N.C. Gen. Stat. §20-174 (d), “Where sidewalks are provided, it shall be unlawful for

any pedestrian to walk along and upon an adjacent roadway. Where sidewalks are not

provided, any pedestrian walking along and upon a highway shall, when practicable,

walk only on the extreme left of the roadway or its shoulder facing traffic which may

approach from the opposite direction. Such pedestrian shall yield the right-of-way to

approaching traffic”. Samantha Crow was negligent since she was jogging on the wrong

side of the road. According to the facts, Dr. Sayer was driving down the road heading in

44

the same direction of Samantha. The law states that pedestrians must travel along side

the road facing oncoming traffic. The Defendant’s defense of contributory negligence is

strong if we take into consideration the duty of a pedestrian.

In the state of North Carolina, the only defense to a contributory negligence plea

is the Doctrine of Last Clear Chance. This imposes liability upon the defendant who did

not actually know of the plaintiff’s situation if, but only if, the defendant owed a duty to

the plaintiff to maintain a lookout and would have discovered his situation had such a

lookout been maintained. Four elements must be established to invoke the last clear

chance doctrine as discussed in McNeil v. Williams, 16 N.C. App. 322 (1972):

1. That the pedestrian negligently placed himself in a position of peril from which

he could not escape by the exercise of reasonable care;

2. That the motorist knew, or by the exercise of reasonable care could have

discovered, the pedestrian’s perilous position and his incapacity to escape

from it before the endangered pedestrian suffered injury at his hands;

3. That the motorist had the time and means to avoid the injury to the

endangered pedestrian by the exercise of reasonable care after he

discovered, or should have discovered, the pedestrian’s perilous position and

his incapacity to escape from it; and

4. That the motorist negligently failed to use the available time and means to

avoid injury to the endangered pedestrian, and for that reason struck and

injured him.

45

N.C. Gen. Stat. § 20-174 (e) states, “Notwithstanding the provisions of this section,

every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian

upon any roadway and shall give warning by sounding the horn when necessary.” In the

case of Womack v. Stephens, 144 N.C. App. 57, 65, 559 S.E.2d. 18,23 (2001), it is

stated that, “Evidence that a plaintiff does not see an approaching vehicle or is not

facing an oncoming vehicle will satisfy this element, ‘our courts reasoning that the

pedestrian who did not apprehend the imminent danger could not reasonably have been

expected to avoid injury’”. Samantha could not escape the position of peril in which she

negligently placed herself, she never saw Dr. Sayer coming.

CONCLUSION: No law states it is illegal to run at night on a busy road without

reflective clothing. Since Samantha was illegally running on the wrong side of the road,

she negligently placed herself in a position of peril in which she could not escape and

did not see Dr. Sayer coming. Therefore, invoking the Doctrine of Last Clear Chance is

the only affirmative defense against contributory negligence in North Carolina.

3. Comparative Negligence of the Plaintiff

Defendant claims that decedent’s own negligence contributed to the accident

and her death and that any award to Plaintiff be reduced by an amount equal

to the percentage of the decedent’s own negligence.

North Carolina does not recognize comparative negligence. North Carolina

negligence laws follow the doctrine of contributory negligence, which bars recovery by

the plaintiff if he or she is partially at fault. Negligence is a standardized cause of action

and the elements that are required to establish liability are as follows:

46

1. Defendant owed a duty to commit an act or refrain from committing an act

2. Defendant breached this duty

3. This breach of duty caused injury to the plaintiff

4. Defendant’s actions (or inactions) were the proximate cause of the injury (the

defendant should have known that this action could have caused the injuries)

5. Plaintiff suffered actual damages

Samantha’s case:

1. Dr. Sayer owed Samantha a duty to not drive while intoxicated and to keep a

proper lookout while driving.

2. Dr. Sayer breached his duty by driving while intoxicated and failing to

maintain a proper lookout.

3. Dr. Sayer’s inaction of keeping a proper lookout, and action of driving while

intoxicated were the proximate cause of death of Samantha Crow.

4. Samantha Crow sustained fatal injuries from such cause.

CONCLUSION: North Carolina does not recognize comparative negligence.

4. Assumption of Risk

Defendant claims that Plaintiff knew it was dangerous to run on New Town

Road after sunset and without wearing any reflective clothing and voluntarily

47

assumed the risks associated with that action. Defendant claims that as a

result, the lawsuit is barred.

Under North Carolina law, the defense of assumption of risk does not exist where

there is no contractual relationship between the parties involved. The assumption of risk

does not normally apply to car accidents for the fact that there is no contractual

relationship formed. As described in Price v. Conley, 21 N.C. App. 326, 328, 204 S.E.2d

178, 180 (1974), the party claiming an affirmative defense has the burden of proof to

establish all elements of the defense. The two elements of the common law defense of

assumption of risk are:

1. Actual or constructive knowledge of the risk, and

2. Consent by the plaintiff to assume the risk.

This defense is usually used in sports spectator injuries to bar recovery by plaintiffs.

Regardless of whether a pedestrian fails to wear reflective clothing at night,

Watson v. White, 309 N.C. 498, 505, 308 S.E.2d 268, 273 (1983) has stated that, “a

motorist upon the highway does owe a duty to all other persons using the highway,

including its shoulders, to maintain a lookout in the direction in which the motorist is

traveling”. From the case of Exum v. Boyles, 272 N.C. 567, 576, 158 S.E.2d 845, 852-

53 (1968), expert testimony has indicated that automobile headlights would illuminate a

person six feet off the side of the road from a distance of 150 feet. With that being said,

there is ample evidence that Dr. Sayer knew or by exercise of reasonable care could

have discovered decedent’s perilous position.

48

CONCLUSION: Assumption of Risk, under North Carolina Law, does not exist

where there is no contractual relationship between the parties involved. Dr. Sayer and

Samantha Crow did not have a contractual relationship between each other.

Final Conclusion

In conclusion, the defenses raised by Dr. Sayer prove to be weak and with little

merit, if any. The only strong defense he could possibly have is the contributory

negligence defense. It is true that Samantha Crow was acting negligently while traveling

down the wrong side of the road according to the North Carolina General Statutes for

pedestrians. Since she negligently placed herself in a position of peril in which she

could not escape, according to the doctrine of last clear chance, Dr. Sayer ultimately

had the final chance to avoid injuring the decedent and failed to do so.

49

File No. ____________________

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

NORTH CAROLINA

LINCOLN COUNTY

GREGORY CROW

Plaintiff,

V.

DR. RICHARD SAYER

Defendant.

TRIAL BRIEF IN OPPOSITION TO DEFENDANT’S

MOTION TO PRECLUDE

DATE: August 1, 2018

James Reynolds

Attorney at Law 1011 Middle Town Rd

Denver, NC 28037123-456-7890

50

STATE OF NORTH CAROLINALincoln County

File No. ___________________In the General Court of Justice

Superior Court Division GREGORY CROW

Plaintiff,

vs.

DR. RICHARD SAYER Defendant. __________________________________

))))))))))))

TRIAL BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO PRECLUDE

Plaintiff, Gregory Crow, hereby submit its Trial Brief in Opposition to Defendant’s Motion

to Preclude states as follows:

INTRODUCTION

Defendant, Dr. Richard Sayer, has filed a motion to preclude evidence of the

Defendant’s DWI conviction because it is a misdemeanor. The motion seeks to exclude

from trial crucial evidence about certain events leading up to the death of Samantha

Crow. Because all this evidence is of central relevance to Gregory Crow’s claims, and

none of it is subject to an evidentiary privilege or is otherwise violative of a Rule of

Evidence, it should be admitted.

STATEMENT OF FACTS

On September 18, 2017, Defendant struck Samantha Crow as she was running

towards her home. Defendant was driving while intoxicated when he struck Samantha

Crow and, assuming he hit a deer, failed to stop. An investigation led the police to

Defendant’s home where his car was found with significant damage. At that time,

51

approximately five hours after the accident occurred Defendant submitted to a

breathalyzer. Defendant’s blood alcohol content was more than twice the legal limit. At

trial, Defendant was ultimately convicted of misdemeanor driving while intoxicated.

ARGUMENT

I. Defendant’s DWI conviction is relevant and admissible to this trial because

it involves the events that lead to the death of Samantha Crow.

Pursuant to N.C. Gen. Stat. § 8C-1, Rule 401 states that “relevant evidence”

means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence. The fact that Defendant was driving while intoxicated

puts himself and everyone on the road with Defendant in harm’s way. Because of

intoxication, Defendant was traveling 50 miles per hour when the speed limit is 35 miles

per hour. Defendant owed Samantha a duty to not drive while intoxicated and to keep a

proper lookout while driving. Defendant’s inaction of keeping a proper lookout, and

action of driving while intoxicated were the proximate cause of death of Samantha

Crow.

II. Defendant’s DWI conviction is relevant evidence because this was the

proximate cause of death of Samantha Crow.

Pursuant to N.C. Gen. Stat. § 8C-1, Rule 402 states that all relevant evidence is

admissible, except as otherwise provided by the Constitution of the United States, by

the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly

or by these rules. Evidence which is not relevant is not admissible. The Defendant’s

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misdemeanor DWI is not a past occurrence being used to disapprove the credibility of

Defendant, instead it is tied into the proximate cause of the death of Samantha Crow.

The DWI misdemeanor of Defendant provides evidence of Dr. Sayer’s negligence and

causation of the death of Samantha Crow.

III. The evidence of Defendant’s misdemeanor DWI is in the public record and

is not subject to protection.

The evidence Plaintiff seeks to introduce comprises the underlying facts of Dr.

Sayer’s case that are already readily available to any casual user of this court’s open

files. The defendant’s motion to preclude the misdemeanor DWI information to protect

public information is a misuse of motion and the evidence should be admitted.

Conclusion

For the reasons stated above, Defendant’s Motion to Preclude Dr. Sayer’s

misdemeanor DWI should be denied.

Respectfully submitted,

Gregory CrowBy his attorney,

___________________________

James Reynolds Attorney at Law 1011 Middle Town Rd Denver, NC 28037 123-456-7890

Date: August 1, 2018

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I hereby certify that a copy of the foregoing TRIAL BRIEF IN OPPOSITION OF

DEFENDANT’S MOTION TO PRECLUDE has been served on the parties listed below by:

( ) depositing said notice in a postpaid, properly addressed wrapper in a Post

Office or official depository under the exclusive care and custody of the United States Post

Office Department.








THIS the _______ day of _________________, 2018.


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MemoTo: James Reynolds


Date: July 12, 2018

Re: Post-Trial Options for Gregory Crow Case

In this memo I have identified the type of post-trial motion that can be made

in this circumstance. I have explained the process for filing such a motion,

including the deadline by which such a motion must be made and before whom

the motion must be made. Within this memo I have also described the procedure

for filing an appeal and included the deadline by which any appeal must be taken.

I have listed the factors we must consider when deciding if this case should be

appealed. Attached to this memo is a Notice of Appeal so that it will be ready to

go in the event the client opts to appeal.

POST-TRIAL MOTION TO SET ASIDE THE VERDICT

You asked for assistance in determining whether a post-trial motion to set aside

the verdict should be made, an appeal to the appellate court filed, or both. According to

N.C. Gen. Stat. § 1A-1, Rule 50, a motion for a directed verdict at the close of the

evidence must first be made to file a motion for judgement notwithstanding the verdict

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after the trial. This is true under both state and federal rules. These motions would be

filed with the Superior Court. Whenever a motion for a directed verdict made at the

close of the evidence is denied, the submission of the action to the jury shall be deemed

to be subject to a later determination of the legal questions raised by the motion; not

later than 10 days after entry of judgement. It is stated that a party who has moved for a

directed verdict may move to have the verdict and any judgement entered thereon set

aside and to have judgement entered in accordance with his motion for a directed

verdict. Rule 50(c)(2) states that the party whose verdict has been set aside on motion

for judgement notwithstanding the verdict may serve a motion for a new trial pursuant to

Rule 59 not later than 10 days after entry of judgement notwithstanding the verdict.

If a motion for a directed verdict was not put into play after the close of the

evidence than filing a motion to set aside the verdict should not be made.

FILING AN APPEAL

According to the N.C. R. App. P. 3(a), “Any party entitled by law to appeal from a

judgement or order of a superior or district court rendered in a civil action or special

proceeding may take appeal by filing notice of appeal with the clerk of superior court

and serving copies thereof upon all other parties within the time prescribed by

subsection (c)”. Subsection (c)(1) states in civil actions a party must file and serve a

notice of appeal within 30 days after entry of judgement.

Civil appeals must be submitted via written notice within 30 days to the Clerk of

Superior Court. Appellant must file AND serve the notice on appeal before the deadline.

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Generally, the Notice of Appeal must:

Contain the name of the party taking the appeal;

Designate the judgement or order being appealed from;

Designate the court to which appeal is being taken;

Be signed by the counsel of record for the appealing party; and

Be served under Appellate Rule 26.

N.C. R. App. P. 3 states that civil notices of appeal must always be in writing.

FACTORS TO CONSIDER WHEN DECIDING TO APPEAL

The likelihood of success on appeal,

The facts and merits of the case, and

What the client wants to do.

There are a few examples of compelling reasons to justify an appeal. For

instance, if the judge gives the jury the wrong instructions and the jury brings back a

verdict based on those wrong instructions, then it is essential that you appeal. The jury

instructions given by the judge must always be accurate interpretations of the law and

must be approved and accepted by the parties in the case. This example of mistake will

almost always guarantee a reversal of the case and a remand to the trial court.

CONCLUSION

Should a post-trial motion to set aside the verdict be made? Only if a motion for a

directed verdict was put into play after the close of the evidence. A party who moves for

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a directed verdict at the close of the evidence must renew the motion at the close of all

evidence to preserve the right to move for a judgement notwithstanding the verdict.

Without this, we have no grounds for the post-trial motion. Our client has the right to

appeal and we have 30 days after entry of judgement to file the appeal with the Clerk of

Superior Court and to serve copies to all parties.

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NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

LINCOLN COUNTY 05 CVS __________ ESTATE OF SAMANTHA CROW,By Gregory Smith, Personal Representative123 New Town Rd,Denver, NC 28037

Plaintiff,

NOTICE OF APPEAL

v.

DR. RICHARD SAYER456 Old Town Rd,Denver, NC 28037

And

SMALL VALLEY COUNRTY CLUB789 Small Valley Ln,Denver, NC 28037Serve on: Jane Doe, Representative

Defendant. TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:

Pursuant to N.C. R. App. P. Art. II, Rule 3, plaintiff Gregory Crow hereby gives

notice of appeal to the Court of Appeals of North Carolina from the final judgement of

William Michalek, Superior Court Judge, entered on August 9, 2018 in the Superior

Court of Lincoln County, which dismissed the plaintiff’s action.

This 10th day of August 2018.

59

_____________________________________

James ReynoldsAttorney at LawReynolds & Starr, P.C.1011 Middle Town RdDenver, NC 28037 123-456-7890

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This shall certify that a copy of the foregoing Notice of Appeal was this day served

upon Dr. Richard Sayer by the following method:



United States Postal Service, properly addressed to Dr. Richard Sayer;

_____ by personally serving Dr. Richard Sayer via hand delivery;

_____ by transmitting a copy via facsimile transmittal to Dr. Richard Sayer.


_____________________________________ James Reynolds


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This shall certify that a copy of the Notice of Appeal was this day served upon Jane

Doe, representing the Small Valley Country Club by the following method:



United States Postal Service, properly addressed to Jane Doe,

representing Small Valley Country Club;

_____ by personally serving Jane Doe, representing Small Valley Country Club

via hand delivery;

_____ by transmitting a copy via facsimile transmittal to Jane Doe,

representing Small Valley Country Club.


_____________________________________ James Reynolds


62

Angeline O’BaraAugust 13, 2018Tort LawAssessment Reflection

During Tort Law, we were given a scenario where we worked as a paralegal for a

law firm that received a personal injury/wrongful death case. This case was about a

woman who was jogging at night and was hit and instantly killed by a drunk driver that

was over served at a country club. The drunk driver was only convicted of misdemeanor

driving while intoxicated, fined $1,000 and given a one-year jail sentence. I assisted the

advising attorney in creating the claim for the decedent’s husband. The documents I

created for this case are as follows:

Summons & Complaint

Discovery Demands against each Defendant

Deposition Notices to take the testimony of Defendants

Judicial Subpoena

Memo analyzing Defendant’s answer

Trial Brief

Post-Trial Memo

During the completion of the project I learned how to properly and professional

create the documents listed above. I have created complaints before, but this class has

helped to perfect my style of writing and language used. The main lesson I have learned

in this class is that a creative lawyer and his/her team always try to think of ways to

achieve the same end goal. In North Carolina, you cannot sue a restaurant for dram

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shop liability if they over serve someone of age. I was taught that suing on negligence in

this matter would be an alternate route to take, rather than addressing it as a dram shop

liability. By receiving this thorough introduction to Tort Law theory, my thought process

has changed when approaching a case. I understand the importance of looking at a

situation from all point of views. These lessons have helped to form the proper frame of

mind and I will apply this in the future workforce to bring more success in the firm I will

work for.

In the future, when asked to complete similar projects I know I will be able to work

faster. I am becoming comfortable with the research routine and interpreting the law.

The hardest part is making a connection with a client’s case and the law. There are

many ways to interpret law and finding the right way is the tricky part. My advice to other

students is that you cannot research too much on a certain law. I feel I have conducted

enough research when I start to read the same things repeatedly. When you feel the

research is going in circles than you have done enough to start the next step.

The program outcome I believe was fulfilled by this project is to design and compose

legal documents, including but not limited to correspondence, pleadings, briefs, and

memoranda, that are relevant to different substantive areas of law. This project required

the completion of multiple legal documents from one scenario. Other projects I have

completed did not include this number of documents. This project has given me a “real

feel” for a case from beginning and almost to end.

In conclusion, Tort Law has changed my frame of mind and has pointed my

interpretation skills in the right direction. This class has taught me to think more open-

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minded. After the completion of this class, I have noticed that everything I approach

outside of school work is in a legal sense. I am beginning to think as a paralegal no

matter what the subject or situation involves. I believe part of this is due to the fact that

this hypothetical scenario was so in depth.

Documents

To:€¦ · Web viewThere is no evidence that Samantha was alive and/or conscious for any period of time after the accident. She never saw the car coming. She never saw the car coming