Holcomb Dunbar - North Mississippi Attorneys

Holcomb Dunbar wins summary judgment in a parking lot slip and fall lawsuit in Bolivar County Circuit Court.

slip and fall lawsuitPlaintiff filed suit against a local business following a slip and fall in its parking lot.  Specifically, Plaintiff alleged that he fell over a finger-sized crack with an inch to a 1 ½ inches of separation.  Evidence reveled that Plaintiff crossed the business’s parking lot at least 26 times before the fall. Moreover, Mississippi Courts have repeatedly held that pavement cracks and changes in elevation are not dangerous conditions that can support a slip and fall lawsuit.  Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011).  Indeed, “Mississippi has long recognized that normally encountered dangers such as curves, sidewalks, and steps are not hazardous conditions.  Often [such pathways] contain cracks and changes in elevation; and as such, they do not become hazardous conditions simply because they contain minor imperfections or defects.”  Knight v. Picayune Tire Services, Inc., 78 So. 3d 356 (Miss. App. 2011). See, e.g., City of Greenville v. Laury,172 Miss 118, 159 So. 121, 122 (1935).

In fact, there are at least 17 Mississippi appeal’s court opinions rejecting slip and fall actions over cracks in parking lots and sidewalks:

  • Three-inch depression in a sidewalk is not unreasonably dangerous.  City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface … The practical result rendering municipalities insurers of the safety of pedestrians.”  Id. at 184).
  • Crack in side walk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous.  Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.
  • Seven and One-half inch high side walk crack was not unreasonably dangerous.  Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).
  • Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous.  City of Biloxi v. Schamback,157 So.2d 386 (Miss. 1963).
  • An uneven concrete gap in parking a lot was not unreasonably dangerous.  Penton v. Boss Hogg Catfish Cabin, LLC,42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.
  • One-inch elevation of a sidewalk did not create a dangerous condition.  Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).
  • A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe.  City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Elevation change in homeowners’ driveway did not create an unreasonably dangerous condition to hold homeowners’ liable for a fall in their driveway.  Ringo v. Wilson, 2016 WL 612093.
  • Imperfections to a parking lot are generally not considered unreasonably dangerous conditions.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968).
  • Cracks on the edge of a concrete riser are not unreasonably dangerous condition.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968).
  • A “seam” creating an uneven surface in an asphalt parking lot is not a dangerous condition.Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Hole between sidewalk sections covered by grass not unreasonably dangerous.  City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).
  • Threshold 3/4 of an inch, not unreasonably dangerous such that a slip and fall claim can be maintained.  McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).
  • 3 ½ inch wide and 2 inches deep crackthat caught Wal-Mart customer’s heel not a dangerous condition. Parker v. Walmart Stores, Inc., 267 F. App’x 724 (5thCir. 2008) (granting summary judgment as crack was not a dangerous condition under Mississippi law).
  • 2 inches wide, 4.75 inches long, and 0.75 inches deep in restaurant’s sideway, not a dangerous condition.  Mack v. Waffle House Inc.,No. 1:06CV559, 2007 WL 1153116 (S.D. Miss. Apr. 18, 2007), (granting summary judgment, as the crack was not a dangerous condition so support slip and fall claim under Mississippi law).
  • 10 inches around and 1 ½ inches deep pothole in Burger King parking lot not a dangerous condition.  Quick v. Strategic Restaurants Acquisition Co., No. 3:12-cv-301, 2013 WL 1305583 (S.D. Miss. Mar. 28, 2013)(granting summary judgment.).
  • 1.5 to 1.75 inch indentation in parking lot at Wal-Mart that caught customer’s foot was not a dangerous condition as a matter of law. Chance v. Wal-Mart East L.P., No. 3:14-cv-363, 2015 WL 4496442 (S.D. Miss. July 23, 2015).

 

In addition, the Court found that even if the subject crack could somehow be deemed a dangerous condition, the Plaintiff’s numerous prior trips through the parking lot provided him sufficient notice of the parking lot’s condition.  The dismissal relied, in part, on the Mississippi Supreme Court’s opinion in Vaughn v. Ambrosino, 883 So.2d 1167 (Miss. 2004) which provides that:

“With respect to the [failure to warn claim], however, it would be strange logic that found it reasonable to allow a plaintiff to pursue a [slip and fall] claim against a defendant for failure to warn of an open an obvious danger. One would struggle, indeed, to justify the need to warn a plaintiff of that which was open an obvious. Stated differently, a warning of an open and obvious danger would provide no new information to the plaintiff. Stated still another way, a thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance. Thus, an invitee may not recover for failure to warn of an open and obvious danger.”

Holcomb Dunbar attorneys Jonathan Masters and Josh Moore presented the successful arguments.

 

 

Job OpeningHolcomb Dunbar Job Opening

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Send resumes to: HD@holcombdunbar.com

About Holcomb Dunbar

Holcomb, Dunbar, Watts, Best, Masters & Golmon, P.A. is a regional law firm providing legal help throughout  Mississippi, Tennessee and Alabama with offices in Oxford and Jackson, Mississippi.

The Firm also offers services in the areas of civil litigation, auto accidents, ethics and risk avoidance for businesses, real estate, family, employment and criminal law. Its civil litigation practice focuses on insurance defense and coverage issues, which include workers compensation, product liability, professional liability, commercial litigation, and mass-tort defense.

Holcomb Dunbar was formed by the merger of two law firms in Clarksdale, Mississippi in 1970. The firm, however, traces its roots to John W. Cutrer who founded one of the predecessors to the current firm in 1885. By the time Nobel Laureate William Faulkner was born, John W. Cutrer had been practicing law in Clarksdale for a dozen years. The descendents of Cutrer’s firm have become Holcomb Dunbar, home-based where Faulkner himself made his home base for most of his life: Oxford, Mississippi.

The attorneys of Holcomb Dunbar possess exceptional educational accomplishments and a passion for engaging and resolving the most challenging legal issues. Providing the best legal representation with diligence, dispatch and integrity is our creed. Holcomb Dunbar sets as its highest priority sensitivity to its clients’ needs, and utilizes the best available computer and communication technology to maximize efficiency and lower costs, without compromising its commitment to professional excellence.

Holcomb Dunbar, and many of its members individually, possess the highest rating given attorneys by Martindale-Hubbell Law Directory (AV) for legal ability and general recommendations.

Members have also been admitted by peer invitation to membership in the Federation of Defense and Corporate Counsel and The American College of Trial Lawyers. One member of the Firm as been listed in The Best Lawyers in America for 26 consecutive years.

The attorneys at Holcomb Dunbar are admitted to practice in state and/or federal courts in Mississippi, Arkansas, and Tennessee and the United States Courts of Appeals for the Fifth, Sixth, Eighth and Federal Circuits, and the Supreme Court of the United States.
Holcomb Dunbar is a member of TAGlaw, a worldwide alliance of law firms. With 140 member firms based in nearly 100 countries, TAGlaw is the premier global network of independent law firms whose success is driven by broad, deep, local relationships all over the world. The TAGlaw alliance enables Holcomb Dunbar to use its local expertise to deliver highly effective legal solutions while drawing upon the collective wisdom and experience of other member firms within the United States and around the world as needed. For more information go to TAGlaw.

The objective of Holcomb Dunbar is to provide clients with the expertise, experience and personal attention necessary to evaluate, fairly represent and defend the client’s best interests at reasonable expense. Any member or associate would be pleased to meet with you to discuss your needs for legal representation, and further explain the depth and variety of Holcomb Dunbar’s services.

Hit-and-Run Uninsured Motorist Coverage Win for Holcomb Dunbar Attorneys

Holcomb Dunbar AttorneysHolcomb Dunbar successfully defended a claim of bad faith insurance adjusting and clarified an important aspect regarding uninsured motorist coverage following a hit-and-run incidents.

Mississippi law provides that insurance policies may limit uninsured motorist (UM) coverage to situations where an uninsured vehicle actually physically contacts a person or the vehicle in which they are occupying, as opposed to situations involving debris or objects set in motion by unidentified vehicles.  The Mississippi Supreme Court had held that if an insurance policy only conditioned coverage on “physical contact” that this requirement can be met by indirect contact; that is, contact through a medium of an intervening vehicle or object being propelled by another vehicle.  Southern Farm Bureau v. Brewer, 507 So. 2d 369 (Miss. 1987).  The Court, however, noted that insurance carriers are free to expressly limit their policy coverage to “actual physical contact,” and thereby limit coverage only to instances of direct, as opposed to indirect, contact.

In this case, a plaintiff claimed that a cut piece of timber or wood dropped from a traveling utility service truck and impacted with her windshield.   The U.S. District Court for the Northern District of Mississippi granted Holcomb Dunbar’s motion for summary judgment.  In doing so, the federal court noted that the insurance carrier accepted the Mississippi Supreme Court’s invitation to limit hit-and-run coverage to instances of actual physical contact and even took the extra step of further providing that contact by propelled debris does not count.  The opinion upheld and validated our insurance client’s UM policy provisions regarding such propelled debris.  It also provided helpful guidance on what debris means, adopting our position that “[a]nything entering a roadway that does not belong there is commonly considered debris, and it makes no difference whether the owner intended for the debris to end up in the road as deliberate litter or whether it ended up there by accident, as in the present case.”  The court confirmed that the debris does not have to be intentionally propelled and that “basic laws of physics require that some force be applied to the wood in order for it to move.  A force that imparts motion was clearly applied to the wood at issue here, or it would have remained in the bed of the truck.  The fact that this force caused the wood to bounce out of the truck means it was in every sense of the term ‘propelled.’”

Holcomb Dunbar attorneys Brad Best, Russ McNees and Geoffrey Calderaro presented the successful arguments.

 

 

Holcomb Dunbar Jackson OfficeHolcomb Dunbar Opens New Jackson Office

Holcomb Dunbar Attorneys is pleased to announce the opening of its new Jackson, Mississippi office expanding its services to the firm’s regional and national clients throughout central and south Mississippi. 

“We have served the Jackson, Mississippi area for many years.  By opening this new office, however, we hope to better serve our central and south Mississippi clients from the State’s capital.”

Holcomb Dunbar is a full-service, regional law firm offering services in Mississippi, Tennessee, and Alabama.  The firm focuses on representing individuals and companies in the courtroom.  In addition to its robust civil litigation practice, the firm provides a full range of services in commercial transactions and litigation, real estate, family and domestic matters, workers compensation, product’s liability, professional liability, white collar criminal defense and mass-tort defense.

In addition, Holcomb Dunbar is a member of TAGlaw, a worldwide alliance of law firms.  With 140 member firms based in nearly 100 countries, TAGlaw is the premier global network of independent law firms whose success is driven by broad, deep, local relationships all over the world.  The TAGlaw alliance enables Holcomb Dunbar to use its local expertise to deliver highly effective legal solutions while drawing upon the collective wisdom and experience of other member firms within the United States and around the world as needed.

Mike Watts Lawyer of the YearHolcomb Dunbar Attorney Mike Watts recognized as Lawyer of the Year

Mike Watts received Best Lawyers® 2019 Insurance Law “Lawyer of the Year” award in the Tupelo, Mississippi, area.

“Lawyer of the Year” honorees receive this award based on their extremely high overall feedback within specific practice areas and metropolitan regions.  Only a single lawyer in each practice area and designated metropolitan areas is honored as the “Lawyer of the Year.”  “Lawyer of the Year” recognitions were awarded in 133 practice areas across 183 metropolitan regions. The process begins when attorneys are nominated for consideration. They are divided by geographic region and practice areas and are evaluated by their peers on the basis of professional expertise. Those who receive high peer reviews undergo an authentication process to make sure they are currently practicing and in good standing. Only then can these top attorneys be recognized byBest Lawyers.

Watts was recognized in the area of Insurance Law. Watts served on the Mississippi Board of Bar Commissions for 1995 to 1998.  Watts has been A/V rated by Martindale Hubbell since 1995, andis a Fellow of the Mississippi Bar Foundation.

Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. After three decades, we are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide,” says Best LawyersCEO Phil Greer.

Holcomb Dunbar is an Oxford, MS law firm representing local, regional, and national clients. The firm specializes in litigation, including insurance defense, product liability, medical malpractice, complex bankruptcies, and white-collar crime. Holcomb Dunbar is the Mississippi member of TAGLaw, an invitation-only network of 140 law firms located in more than 100 countries and has earned recognition as a “Go-To” law firm in the area of litigation from Corporate Counsel magazine and by U.S. News best law firms. The current firm was organized in 1970 but traces its roots to 1885 through its predecessor firms. For more information, visit www.holcombdunbar.com.

 

Contingency Fee Agreements

“Contingency Fee Agreements” … No fee unless we recover for you” … “The no fee promise” … “No charge unless we win!” …

We see and hear these and similar Contingency Fee Agreement ads daily. But where did these arrangements come from? And how did they develop into the wide-spread use that we see and hear constantly?  Thanks to the Professor Peter Karsen’s 1998 article, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Free Contracts, a History to 1940, we have a bit of an answer.

The typical legal contingency fee agreement is a contract in which the fees are payable only if there is a favorable result.  Legal contingency fee agreements are typically calculated as a percentage of the client’s recovery through a settlement or trial verdict.  And if there is no settlement or verdict, the attorney and client recovery nothing.

Contingency fee-like agreements trace their roots to thirteenth century England where the practice of third parties “financing” litigation, called champerty, was deemed illegal.  The prohibition originally sought to stop wealthy individuals from financing litigation against competitors in an effort to take their land and property to increase their own wealth through a proxy. These prohibitions, however, had the ultimate effect of limiting the lower classes access to the courts.  Indeed, without the means to pay an attorney the poor where without a means to effectively enforce their rights.

Even today, English courts manage lawyer funded litigation differently than the U.S.  English solicitors typically enter what known as a “conditional fee agreement.”  If the case is won, the solicitor may recover a nominal hourly fee, plus a “success fee” that is be no greater than 100 percent of the nominal fee.

From the beginning, attitudes in America were quite different.  Indeed, America’s founders had the radical notion that the criminally accused had a right to counsel which was preserved in the Constitution’s Sixth Amendment. England didn’t adopt a similar right to counsel for another 50 years.

The belief in a right to an attorney and access to courts filtered into the civil justice system as well.  This notion pushed American courts to reject England’s “loser pays” system removing the Sword of Damocles over a losing party of potentially having to pay the winner’s attorney’s fees. And gradually, the same sentiment advanced the use and acceptance of contingency agreements.

In 1813, Pennsylvania Justice Hugh Henry Brackenridge wrote “parties not monied” sometimes “stipulate for something out of what was recoverable,” with attorneys “taking what are called contingency fees.”  Though the practice was still not accepted by all courts and attorneys of the day, notable attorneys such as Henry Clay and Daniel Webster worked under contingency agreements.

Reported cases from across the country in the early 1800s illustrate America’s growing acceptance of contingency agreements though still tinged with some skepticism.  For example, in 1823 arguing before the Kentucky Supreme Court an attorney in Rust v. LaRue, noted “[a client] may not have anything else to give, and without the aid of the matter in this contest, he can never sue for his right, not having otherwise the means to employ counsel…” By the mid-1800s these agreements continued to gain approval.  In Lytle v. State, Arkansas Justice Scott in 1857 expressed the general sentiment spreading across the county that “rights are nothing without the means of enforcing them.”  And, around the same time, state legislatures were redefining the broad scope of champerty to provide for contingency fee agreements.

And by 1875, U.S. Supreme Court Justice Morrison Waite in Write v. Tebbitsnoted the wide-spread use and acceptance stating that contingency fee agreements ‘legitimate and honorable.’

Today, such contracts are common and permeate the legal community.  While still not practical or available to all matters, for better or worse, they remain entrenched in our legal system.

 

10 ways driving analytics are affecting insuranceBetter driver analytics can reduce fraud and improve risk management.By Rob MacKethan | July 25, 2018 at 07:00 AM Driving analytics are primed to change the way vehicles and drivers are insured, and possibly the way people drive. (Photo: Shutterstock)You may have noticed a lot of buzz about driving analytics lately, and for good reason. Driving analytics are primed to change the way vehicles and drivers are insured, and even conceivably change the

Source: 10 ways driving analytics are affecting insurance | PropertyCasualty360

Holcomb Dunbar is a proud Member of TAGLaw and looking forward to attending this year’s regional conference sponsored by Carlile, Patchen & Murphy, LLC.


COLUMBUS, Ohio, July 18, 2018 /PRNewswire/ — Carlile Patchen & Murphy LLP announced today that it will be hosting the 2018 TAGLaw® Midwest and Southeast regional law conference at the Hilton (downtown), July 20th -21st for members of the TAGLaw® Alliance Group (international legal organization). The purpose of the annual conference is to share current best practices and a look at emerging areas of law.  This year’s “centerpiece” topic is focused on legal and regulatory implications around autonomous and connected vehicles. “We have recruited a distinguished panel of experts from the legal, regulatory and insurance areas who are directly ‘touching’ the exploding autonomous space. They will be discussing impacts on various industries and market sectors including: public safety, transportation, insurance, trucking & logistics, and data privacy along with sharing guidance on how law firms can fold this niche area of legal expertise into their existing practice areas,” said CPM Managing Partner, Bryan Hogue.

Carlile Patchen & Murphy pursued the “tech” topic for the annual conference based on the high level of mobility innovation here in Columbus in support of the Smart City Initiative. “When we were deciding on content that would be interesting and unique for the conference, it was difficult to ignore the daily news updates about Drive Ohio, the TRC (Transportation and Research Center) and the various technology and infrastructure ‘players’ looking at our city as a test bed for their mobility products.  Typically, disruptive innovation is met with a slower regulatory process and that is exactly where this industry is finding itself in 2018.  There are a number of firms in the TAGLaw membership who have clients in the ‘thick’ of this ‘push-pull’ between technology and regulatory movement and they are coming together to talk about how autonomy will play into administrative, civil, and criminal law,” said Brenda Jump, Director of Marketing for Carlile Patchen & Murphy LLP.

The conference is slated to kick-off Friday night (6:00 pm) at the Columbus Museum of Art with an opening reception and dinner for attendees, featuring test drives in a Tesla Model S semi-autonomous vehicle. Saturday (7/21) will include speaker panel and discussions and Q &A  from 8:30 am – 2:00 pm at the Hilton, downtown.  Peter Voderberg, Managing Director, Regulations and Policy, from Drive Ohio will be one of the distinguished panel experts who will address recent legislation in Ohio and other states promoting autonomous and connected vehicle testing and infrastructure build-out.

Carlile Patchen & Murphy LLP has been providing legal excellence to businesses, families and individuals for over 50 years. We value building long-lasting relationships with our clients and we are dedicated to protecting and preserving what is important to them. At CPM, we foster collaborative, innovative problem solving and are structured to leverage the expertise of all our staff in order to provide the individual attention our clients have come to expect. CPM is a respected regional law firm with unrivaled expertise in Business Law, Litigation, Employment, Family Wealth & Estate Planning, Real Estate, Banking, Taxation, Securities, and Insurance.

TAGLaw®, founded in 1998, is a worldwide alliance of independent law firms. The alliance today ranks among the five largest legal alliances in the world. TAGLaw members are highly-respected, value-driven law firms with local market knowledge and expertise. Members are carefully chosen based on their reputation and record, and on recommendations from existing members. Members undergo a rigorous screening process prior to invitation to the alliance, and are ultimately reviewed and approved by the TAGLaw Advisory Board.

http://cpmlaw.com

Source: Carlile Patchen & Murphy LLP to Host TAGLaw® and Tag Alliances Legal Conference with Keynote Topic: Legal Implications Around Autonomous and Connected Vehicles

Can iPhone users sue Apple for charges to app developers? Supreme Court to decideBY DEBRA CASSENS WEISSPOSTED JUNE 18, 2018, 3:06 PM CDT    inShare    Dedi Grigoroiu/Shutterstock.com.The U.S. Supreme Court agreed Monday to decide whether people who buy iPhone apps can sue Apple over 30 percent commissions charged to app developers on sales.Four iPhone users are seeking triple damages in a would-be class action that alleges Apple violated antitrust law by monopolizing the app market, report SCOTUSblog, Bloomberg News, the Wall Street Journal and CNet. A federal court had ruled that consumers can’t sue because they weren’t directly overcharged, but the San Francisco-based 9th U.S. Circuit Court of Appeals reversed in January 2017.The 9th Circuit had reasoned that consumers could sue because they bought the apps through the Apple App Store. Apple’s cert petition argues the 9th Circuit erred under a 1977 Supreme Court decision, Illinois Brick Co. v. Illinois, which held that only direct purchasers can sue under antitrust law.The federal government had argued, in response to a request for its views, that the 9th Circuit had erred.The St. Louis-based 8th U.S. Circuit Court of Appeals had followed Illinois Brick in a 1998 decision. The court had held consumers could not sue Ticketmaster for an alleged monopoly over ticket distribution because the direct victims would be concert venues. The circuit split is cited in Apple’s cert petition.The case is Apple v. Pepper.

Source: Can iPhone users sue Apple for charges to app developers? Supreme Court to decide

Source: The Youngest Person To Ever Graduate From An American Law School | Above the Law

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