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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
23.The Plaintiff incorporates herein by reference all preceding paragraphs.
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
29.The Plaintiff incorporates herein by reference all preceding paragraphs.
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.
2. The Plaintiff requests the following materials in discovery:
. . . 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.
3. The Plaintiff requests the following materials in discovery:
. . . 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.
6. The Plaintiff requests the following materials in discovery:
. . . 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.
7. The Plaintiff requests the following materials in discovery:
. . . 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
Attorney at Law 1011 Middle Town RdDenver, NC 28037123-456-7890
32
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 Jane Doe, representing the
Small Valley Country Club 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 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.
This 19th day of July 2018.
______________________________
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.
This 19th day of July 2018.
___________________________ 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
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
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
Reynolds & Starr, P.C.
Memo
42
To: James Reynolds
From: Angeline O’Bara
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,
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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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CERTIFICATE OF SERVICE
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.
[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
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Reynolds & Starr, P.C.
MemoTo: James Reynolds
From: Angeline O’Bara
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
60
Certificate of Service
This shall certify that a copy of the foregoing Notice of Appeal 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 10th day of August 2018.
_____________________________________ James Reynolds
Attorney at Law 1011 Middle Town RdDenver, NC 28037123-456-7890
61
Certificate of Service
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:
_____ 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 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.
This 10th day of August 2018.
_____________________________________ James Reynolds
Attorney at Law 1011 Middle Town RdDenver, NC 28037123-456-7890
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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.