North Carolina Law and Policy

Posted By William Plyler on September 1, 2010

The Fourth Circuit Court of Appeals, in an unpublished opinion decided yesterday, affirmed the 2006 firing of a social worker who violated the Wilson County Department of Social Services anti-nepotism policy.  The policy prohibited “two members of an immediate family” from working for the agency, and defined “immediate family” to include a mother-in-law and daughter-in-law.  As a Wilson native with a wife who once worked as a social worker with the WCDSS, I found this case to be interesting, even though unpublished opinions are not binding precedent.

In Woodard v. County of Wilson and WCDSS, (No. 08-2366, decided August 31, 2010), the plaintiff, in 2006, married a young man whose mother, like the plaintiff, worked for the WCDSS.  The mother-in-law began working there in 1994.  The plaintiff started working there in 2001.  As required of all employees, each of them signed the anti-nepotism policy when they were hired.  The policy had been in effect since 1985.

The plaintiff contended that the WCDSS anti-nepotism policy violated her right to marry under the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution.  The Court of Appeals, citing Waters v. Gaston County, 57 F. 3d 422 (4^th Cir. 1995), held that (more…)

Category: Court Opinions | No Comments »
Tags: anti-nepotism policy, mother-in-law, right to marry

Posted By William Plyler on August 23, 2010

Once when Roger Smith was a young and struggling lawyer — he is now the best criminal appellate lawyer that I have known — I had him talk to some clients of mine.  Some of these people had received injuries in a bus wreck.  Roger came to my office and went into the inner room to talk to these people.  I stayed outside with Mrs. Miller and chatted about various things for about thirty minutes.

Roger finally emerged with the clients and told them he would be back in touch.  He then turned to me in great eagerness and said that this was truly a fascinating case of conflict of laws, lex fori, lex loci, etc.  I asked what he meant.  He stated that the bus wreck occurred in the Virgin Islands.  I said, “No, Roger, it occurred in Virgilina — a town on the Virginia — Carolina line.”

Category: Robert McMillan | No Comments »
Tags: Robert McMillan, Roger Smith, Virgilina

Posted By William Plyler on August 14, 2010

Every citizen of North Carolina should thank the Lord for The News and Observer.  It provides the only remaining check on corrupt and/or inept politicians and bureaucrats.  The “news” shoveled on the airwaves by local television stations is a joke.  Local television reports exclusively on crime, criminal trials, the weather, sports, and for your bedtime viewing pleasure, the evening’s most photogenic house fire and car wreck. 

Local radio stations do not even pretend to investigate the news.  Triangle commuters chuckle every morning at the bald-face plagiarism shamelessly executed by radio “news reporters” as they read verbatim unattributed snippets from the morning’s N & O.  Come on guys, even the clueless high school English student rotates a few prepositions in his Clift Note-inspired critique of Moby Dick.

Make no mistake, without the N & O, Meg Scott Phipps and Jim Black would not (more…)

Category: Off-beat | No Comments »
Tags: corrupt politicians, News and Observer, Pulitzer Prize

Posted By William Plyler on August 4, 2010

Owners of Rottweilers are deemed to know the dangerous propensities of the Rottweiler breed.  Consequently, Rottweilers do not get the benefit of the one-free-bite rule which other dogs enjoy.  See, Hill v. Williams, 144 N.C. App. 45, 547 S.E. 2d 472 (2001).

Yesterday, the North Carolina Court of Appeals, in Harris v. Barefoot, (COA09-1313, filed August 3, 1010), fine-tuned the law of breed-based liability of dog owners.  In order for a dog-owner’s liability to be based solely on the breed of the dog, rather than a showing of known violent propensities of the dog in question, the plaintiff must prove that the dog was, in fact, a member of the dangerous breed.

In Harris, the plaintiff was a mail carrier who was knocked down and bitten repeatedly by two unrestrained dogs that attacked her as she delivered mail to a house across the street from the owners of the dogs.  She alleged that one of the dogs was a Rottweiler; however, (more…)

Category: Court Opinions | No Comments »
Tags: Australian Heeler, Border Collie, dog bite, dog owner liability, mail carrier, one bite rule, Rottweiler

Posted By William Plyler on August 1, 2010

(Robert McMillan, senior partner with McMillan Smith & Plyler, has practiced law in Raleigh, N.C. for over 50 years.  He graciously has allowed me to publish some of his favorite law stories, one of which appears below.)

This anecdote involves the story told about the time that N.F. Ransdell, uncle of Buck and Phillip Ransdell, and longtime judge of the Wake County District Court, called upon Mr. R.N. Simms to assist in a civil case.  Judge Ransdell was a young lawyer and felt that it would benefit him to have Mr. Simms on his side in the litigation.  At the time Mr. Simms was senior partner in the firm of Simms and Simms with his son, Robert N. Simms, Jr.

When the case was satisfactorily resolved and it was time to divide the fee Mr. Simms stated that “Here is one-third for me; one-third for Robert; and one-third for you.”  Mr. Ransdell remonstrated that he had not employed Robert but had only associated Mr. Simms.  Mr. Simms was a most imposing and impressive looking man – very much like Sidney Greenstreet in the movies.  He countered that the fee must be divided three ways as he had mentioned.  Mr. Ransdell was cowed and accepted the inevitable with the remark: “It’s good that I associated Simms and Simms and did not associate Bailey, Holding, Lassiter and Langston or I wouldn’t have had anything left.”

Category: Attorney Fees, Judges, Law Firms, Robert McMillan | 2 Comments »
Tags: fee sharing, Judge R.N. Ransdell, Robert McMillan, Sidney Greenstreet

Posted By William Plyler on July 22, 2010

Two Haywood County Deputy Sheriffs who allegedly injured the plaintiff by jerking his arms behind him and slamming him into a wall are entitled to summary judgment, resulting in the dismissal of the claims against them.  This was the holding of the North Carolina Court of Appeals in Owen v. Haywood County, et al, (COA09-929, filed July 20, 2010).

A plaintiff that brings claims against a governmental entity and its employees acting in their official capacities must allege and prove that the officials waived their sovereign immunity.  A county, and a county’s employees such as deputy sheriffs, may waive sovereign immunity (more…)

Category: Court Opinions, civil rights | 1 Comment »
Tags: individual capacity, liability insurance, official capacity, sovereign immunity, summary judgment, waiver

Posted By William Plyler on July 15, 2010

(Robert McMillan, senior partner with McMillan Smith & Plyler, has practiced law in Raleigh, N.C. for over 50 years.  He graciously has allowed me to publish some of his favorite law stories, one of which appears below.)

Judge Mike Payne of the Wake County District Court had become displeased with the cavalier and slipshod fashion of court attendance by several of the lawyers in Wake County.  Some were inattentive.  Some would send paralegals to court to request continuances and to attend to other matters that only lawyers should be involved with. 

To address this problem Judge Payne called a meeting directing that several of the offending attorneys be present.  As the meeting was called to order, every attorney requested to be present was there and on time except for William Gerald.  About 10 minutes after the scheduled time, Bill Gerald’s paralegal appeared to say that Mr. Gerald couldn’t be present.  Judge Payne’s reaction has been censored.

Category: Robert McMillan | No Comments »
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Posted By William Plyler on July 7, 2010

In order for a plaintiff to recover damages for permanent injury in a bodily injury case, a doctor must testify that the injury is permanent.  This is the take-away from yesterday’s North Carolina Court of Appeals decision in Littleton v. Willis, (No. COA09-732, filed July 6, 2010). 

In Littleton, the plaintiff’s vehicle was hit head-on by the defendant’s vehicle, crushing the plaintiff’s left foot.  An MRI revealed a fracture of the medial cuneiform and possible fractures of other bones in the foot.  The plaintiff testified that even four years after the accident, he continued to experience significant pain and swelling in the foot.  He also testified he took pain medication on a regular basis and had been unable to work as a roofer since the accident.  His wife testified she still had to put pillows under his foot every night (more…)

Category: Court Opinions, Negligence | No Comments »
Tags: expert testimony, head-on collision, objective injury, permanent injury, subjective injury

Posted By William Plyler on July 1, 2010

Martin H. Brinkley, the new President-Elect of the North Carolina Bar Association, gave an excellant acceptance speech on June 26, 2010 at the Bar Convention in Wilmington.  Mr. Brinkley consented to the publication of the text of the speech on this site.  The speech, in its entirety, follows.

The grace our family usually says at mealtimes begins:  “Give us grateful hearts, Our Father, for these and all Thy mercies.”

This is an occasion when my heart is so grateful – to so many, for so many mercies – that to give a just account of it all is beyond my powers. 

The Past Presidents, with your assent, have laid in my hands what I hold to be a sacred trust.  It is a trust which each of them, according to his or her own lights, has discharged with steeliness of purpose and fixity of heart.  Their unflagging dedication to our great Bar Association cannot but exhilarate one who looks up at the mountaintop where they sit, and sees face after face that has breathed life into the best and highest ideals of our profession.  I will strive, however inadequately, to emulate them.

I am blessed to be part of a law firm that still rejects the corrupting notion that a lawyer is the merest utensil of a client’s will, a firm that still believes the practice of law is a calling to revere, a thing that makes good citizens and good human beings.  My partners have tried, across the broad span of nearly a hundred years, to hold the flame of that belief undimmed.  I am proud to be one of them, and I hope to make them proud of me.

I am thankful to have had the chance to read, mark, learn and inwardly digest the counsel and wisdom of friends, two of the dearest of whom, (more…)

Category: Law Firms, Uncategorized | No Comments »
Tags: acceptance speech, Martin H. Brinkley, North Carolina Bar Association, Odyssey

Posted By William Plyler on June 20, 2010

The male physician-owner of a Hickory, NC medical clinic recently showed some gall in defending a sexual harassment lawsuit brought on behalf of a female physician at the clinic.  He argued that he was a boorish jerk to everyone, women and men alike, and that his consistently vulgar comments were not directed exclusively to women.  The Fourth Circuit Court of Appeals, in EEOC v. Fairbrook Medical Clinic, (No. 09-1610, decided June 18, 2010), reversed the trial court’s dismissal of the case.  The appellate court opinion concedes that the defendant’s despicability was broadly based, but finds that said despicability was particularly egregious when directed at females, and in particular, the complainant.  

The male doctor continually bombarded the female doctor with graphic and highly personalized comments about intimate features of his and her anatomy.  As this is a family site, readers will need to link to the Court’s opinion for the details – a virtual greatest hits from the self-described “shock jock” doctor.

A plaintiff may establish a violation of Title VII of the Civil Rights Act of 1964 by proving that discrimination based on sex has created a hostile or abusive work environment.  The Fourth Circuit requires that in order to make out such a claim, a plaintiff must show that the offending conduct

(1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer. 

In the case in question, the defendant stipulated that the offending conduct was unwelcome, and he defended the case on the other three elements.  The opinion is silent as to why the defendant entered into this stipulation.  Once this stipulation was in the pocket, the defendant was behind the eight ball. 

The appellate opinion states that there is no “mathematically precise test” for determining if a work environment is objectively hostile or abusive.  The Court concludes that in the case in question the defendant “crossed the line from general crudity into actionable harassment by subjecting Waechter to a series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.”

Presumably the defendant will lose the Howard Stern routine going forward.

Category: Court Opinions, civil rights | No Comments »
Tags: sexual harassment, shock jock, Title VII