Personal Injury vs. Impersonal Injury

Dear Law Guy, What exactly is a personal injury? And what’s the opposite – an impersonal injury? Can impersonal injuries warrant lawsuits? I’m asking because my neighbor drives me nuts for about a million reasons, most of them spiritual, but I’m wondering if maybe I could sue him. The sidewalk in front of his house isn’t well maintained in the winter and always winds up treacherous with ice, but also his house is painted an offensive color. My question is basically, do I have to actually go and break my ankle on his sidewalk or can I sue for the pure psychic distress that that his teal siding and cotton-candy shutters causes me?

The term personal injury covers harm to the body, mind, or emotions. The opposite of a personal injury is not an “impersonal injury” but rather property damage. As to your suggestion, tripping is among the most common personal injury claim, but I would of course never recommend that you deliberately injure yourself on your neighbor’s property. You never know how bad you could hurt yourself, and if the ethics of the situation doesn’t bother you, know that if someone found you googling the ins and outs of personal injury claims before your supposed fall, it would look bad and jeopardize your entire caper. And in fact, you could run into problems with your own insurance company, and there you’d be, potentially navigating a major injury, with sizable medical bills and loss of income. To make a long story short, do not do that. Bad idea. As to whether you could have a claim for an offensive house color, your only cause of action under the umbrella of personal injury cases would be negligent infliction of emotional distress (NIED), but it’s a longshot. In theory, we all have a legal duty to avoid causing emotional distress in another, within reason. In practice, it came about as something to tack-on to a case of negligent physical harm. Then people began successfully claiming NIED in the case of negligent physical harm to a loved one. Then came NIED in the case of negligent property damage. Courts don’t typically like dealing with emotional distress as an intangible condition – and so it’s not easy to demonstrate without concrete effects to your life – such as a divorce that would have otherwise been avoided. We all suffer emotional distress at different times in our lives, and most of those instances are not compensable. So, techincally, your course of action would be to claim NIED, but in reality, you don’t have much of a claim at all and should perhaps consider planting some fast growing trees to block out your view of your neighbor’s house. What the cost for landscaping, it will be less than potentially bringing a losing claim against your neighbor – and it won’t sour your relationship (whatever its current state). The best defense is not to start a war with your neighbors.

Those to Trespass Against Us…

I have a business … which has a gate around almost all of it. On one end there is an opening that cars have been coming through, to spin donuts on our ball field in back. So I put up a barricade to try to stop this, and they just moved it, or found a way to drive around. So I put up no trespass signs, and put the barricade. But this time I put spike strips down to stop them before they started. A young guy came through the barricade in a big truck and run over the spikes and got four flat tires, and now wants to sue me for the tires. Should I pay him, or take him to court?
Interesting question with no simple answer.  While a property owner has the right to exclude others from his property and even use reasonable force to prevent someone from entering his property, in general you cannot set traps to catch trespassers.  The court might find that the spike strips (with no warning that they were present) were a trap.  That means you would be responsible for the damage to the tires.  Think about it this way: a landowner might decide to put up an electrified fence to keep out trespassers, but if the fence was not marked with signs, the owner might be liable for injuries to someone touching the fence.
By trespassing the driver was also breaking the law.  He could be prosecuted for trespassing and you could sue him in civil court.  However in a lawsuit for trespass you would only be entitled to nominal damges ($1 or so) unless you could show actual injury to your property.
I think right is on your side, but the law favors the trespasser.  So if I were the judge for your case I would rule that you had to pay for the damage to the tires, but unless the tires were brand new I would not hold you responsible for the full value of new tires.  I would rule that the trespasser owed you $5 for trespassing and I would order him not to enter your property in the future.
Remember though small claims court is about “rough justice.”  There is very little argument about the fine points of law.  A friend once told me that actual legal precedent carries about as much weight as a comic book in small claims court.  If I were you I would wait and see if he goes to the trouble to sue you.  Many people don’t bother.  If he does sue, counterclaim for trespass.  Then offer to pay for repair of his tires or the cost of used tires.
-LawGuy

It’s a bubble, boy

Life inside the judicial bubble much different for those on the receiving end of justice.  Two cases cases prove this.  In the first, Ohio Supreme Court Justice Alice Resnick was pulled over and has since plead guilty to driving while impaired.  In the arrest video available on the web, she repeatedly asks the officer to let her go.  She mentioned that ruled with law enforcement on drunk-driving cases.  She also said that she had always believed that Supreme Court Justices should have highway patrol officers assigned as drivers. News reports say she had to be pulled over a second time after she drove off when the patrolman asked her to take a sobriety test.  The patrolman kicked it up a notch by calling his supervisor.  Far be it from me to suggest that if a young man had pulled away from a traffic stop, he would have gotten rougher treatment.  However he would have gotten rougher treatment.  Maybe much rougher if he was black or hispanic.
I don’t think that the officer should have tackled or cuffed the 65-year old woman.  But her experience was not what a typical DWI offender has.
The sentence she got was pretty typical for a North Carolina first-time DWI offender.  But unless you write off her actions on the day of her arrest as drunken ramblings, I disagree that she is fit to return to the bench and resume business as usual, as this editorial suggests.  After all she did repeatedly ask the officer to overlook the offense and suggested that she should get some consideration for the favorable rulings she made in the past.
Then there was Thomas Saylor, a Pennsylvania Supreme Court Justice who tried to sneak a small knife on a plane after it was rejected at the screening station.  He tried to hide it in a carry-on bag and got caught.  The feds are not pressing charges but a local prosecutor is weighing his options.
In the judicial bubble people smooth the way for you, they are deferential, you get accomodated.  I wonder how life inside the bubble contributed to these two jurists thinking they could get away with something.
Law Guy

Never say never

My excitement about Blakely’s impact on the Federal Sentencing Guidelines was tamped down by my sense that the federal judges in my district seemed to like the guidelines most of the time.  Departures were rare except for “substantial assistance” situations and it often felt as though upward departures were more common.
In a sentencing this week, a client received a non-guideline “reasonable” sentence that would have been reversible when the guidelines were not advisory.  There were solid named grounds for departure under the Guidelines for aberrant behavior

and lesser harms.  Without considering any departures though the guideline range for my client was 24-30 months.  The judge sentenced him to one year and a day.

My first clue that this was an unusual case was when one of the Deputy Marshals in the courtroom at an early hearing thought that my client should never have been charged.  The sentence was firm but fair, a year in prison is a lot for someone who has never had a real brush with the law before.  Even though I think guideline sentences will be the norm here, it is good to have a safety valve.
The Law Guy

Tree Removal Costs and Suing the Neighbors

I live in a private, gated community governed by a homeowners association with strict property deeds with covenants and restrictions. …. He has a large live oak tree that is on his property … that he refuses to maintain (refuses to trim branches) and refuses to treat the carpenter ants and termites that live in the tree trunk. After futile attempts to get him to care for his tree, I sent a letter of complaint to the homeowners assocation asking them to enforce our deed restrictions that do not allow any homeowner to have an infested tree that is not maintained. I had my tree company trim back his branches that were in my yard and have damaged my lawn and shrubs. I also used my tree/lawn fertilizer company to treat his tree for carpenter ants. My neighbor threatened to sue me …. The homeowner’s association backed my neighbor stating I needed to create a barrier around my property to keep his carpenter ants from invading. Furthermore, I was told by the property manager that I was not allowed to trim my neighbor’s branches that were in my yard.

I have continued to write a letter of complaint yearly stating the same complaint about my neighbor’s diseased tree …. Each time I was told that I was not allowed to touch my neighbor’s tree, not allowed to trim his branches that are over my property line and not allowed to treat the caprtenter ants or termites.

We recently had a named hurricane with category 2 wind gusts … Many of his diseased live oak tree large branches fell into my yard, smashed several sections of my cement driveway, smashed several of the cement sidewalk sections in front of my property, destroyed my cast iron custom made mailbox resulting in the USPS turning off my mail delivery until I have a working mailbox and has created a mess of my landscaping, and is in the road partially blocking traffic. ….

My neighbor refuses to take care of his diseased tree that is now partially overturned in my yard, refuses to acknowledge the damage his tree did (told me “shit happens”), refuses to clean the mess his tree has made in the street or sidewalks. … The cost of tree removal ranges from $18,500 to $41,999. The real problem is the fact my neighbors tree is severely damaged from the carpenter ants inside. … The tree company (http://www.treeremovallongisland.org/) wants to remove the trunk and tree stump. The trunk and stump are on my neighbors property which I have been told that I am not allowed to touch by the HOA and my neighbor.

What type of lawyer do I need to hire? Could I be held liable if the tree causes more damage when we remove the fallen attached branches?… Thank you for any advice you may offer to a very frustrated homeowner. I enjoy reading your comments to variuos letters on your website.

With the kind of loss you are facing you will need to have a lawyer to get anything accomplished.  I need to leave it to that lawyer to answer your questions after looking at the information you have gathered.

I am going to talk about how to go about choosing a lawyer.  This is a garden-variety legal matter that any competent lawyer ought to be capable of handling.  Think about it as having to replace the clutch in your car.  All mechanics should be able to handle it.  Most will get the work done no problem.  There are always some who do shoddy work or take forever to get the job done.  Ask around and see what the lawyer’s reputation is before hiring the same way you would ask around to find a good mechanic.

You don’t need a high-powered $300 per hour legal specialist to take care of this either.  Most of that firepower would be wasted.

Finally consider money.  Your neighbor’s track record suggests he is unreasonable.  It is unlikely that the case will be resolved with a letter or a phone call.  If you considering hiring me I would probably tell you that I thought this could easily take 15-20 hours of attorney time to prepare the case for trial.  That would include investigating the facts, researching the law, and engaging in some discovery.  Attorney hourly rates vary widely but there is a good chance you could find someone who charges $100-$200 per hour.  This means that you should expect to have to pay an attorney $3000 to $4000 minimum.

Experience matters but it is not everything.  The most important factor is whether you have confidence in and trust the attorney you hire.

Good luck.

 

Criminal History

How long will a misdemeanor stay on your record?  If trying to get a job and a criminal record check finds a drug possession misdemeanor on your history, can it and will it affect the likelihood of employment?  Will it ever disappear?  How long, legally, can potential employers view your history?
A criminal record is forever.  Only an expunction or pardon removes a criminal conviction.  In North Carolina a person who was convicted of a misdemeanor before age 18 could be eligible for an expunction.  Pardons can only be granted by a governor or the president.
It is up to each individual employer to decide whether to hire someone with a criminal conviction.  There is no limit on how far back an employer can look into your past.

 

17 Year Old Debt

I am 35 years old.  When I was about 17 – 18 years old I got a department store credit card.  Well I thought that I paid it off.  The company went out of business.  Seventeen years I am getting a call from a credit collection company saying that I owe the money.  I have not heard anything from anyone until now.
I think that in most states a collecting a debt that has been outstanding for 17 years would be barred by statutes of limitations.  Technically the expiration of the statute of limitations does not mean that you do not owe the debt.  It means that the courts will no longer enforce the obligation.

 

Default Judgement and Payment Plans

Discover Bank has acquired a default judgment against me via a North Carolina law firm.  I’ve attempted to work out a payment plan with the law firm that I can afford, but the amount that they are requesting is more than I can pay.  We are considering bankruptcy.  My question is this:  Can a consumer creditor, such as Discover Bank and their NC attorneys, seize and/or take money from my bank account in NC?  I know they can’t garnish my wages, …and I’ve completed my motion for exemptions form that I was served.  My fear is that they will take money from our bank account on my payday (I’m a teacher and get paid once a month) and then my family will be unable to pay our bills such as electricity, car payment, house payments, etc.  I know bank levies can go into place for tax bills and such, but can this by done for outstanding credit card debt for which a judgment has been issued?
The procedure for enforcing a money judgment is called “execution.”  In an execution the sheriff is required to locate any non-exempt assets the debtor has and seize them to sell or apply toward the money owed.  A bank account is an asset and and if the money does not qualify as an exemption, it is subject to seizure.  Whether or not that will actually happen depends on how aggressive the creditor is.
If you cannot pay and are unlikely to be able to pay for the foreseeable future, you should consider bankruptcy since it would probably eliminate the debt for good.

 

Not So Nice Neighbors and No Trespassing Signs

We recently purchased 7 wooded acres of land and are building a new home.  I have posted No Trespassing/Private Property signs all over.  My not so nice neighbors took it upon themselves to remove the signs, bend them and toss them into my garage.  The house is still under construction.  I had a sheriff’s deputy assist me in putting new ones back up.  My reason for having the signs up is to protect myself against law suits from people entering the property and getting hurt or damaging my property.  Am I wrong in doing this?  This is becoming a major issue with the neighbors.  It is in the country and only 4 homes on the street.
You are free to post whatever kind of signs you choose on your property.  If your neighbor is tearing them down he is trespassing by removing the signs and also maliciously damaging your property, a misdemeanor.
I’m not sure the signs do much to keep someone from suing you if they get hurt while on your property, though.  They could help you establish that any uninvited person on your property was trespassing.
Your best option may be to talk things over with your neighbor. If he continues to remove your signs you would probably need to catch him in the act to prosecute.