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Outlaw Lawyer Listener Questions! Non Competes & Attractive Nuisance

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
July 22, 2023 2:00 pm

Outlaw Lawyer Listener Questions! Non Competes & Attractive Nuisance

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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July 22, 2023 2:00 pm

On this edition of the Outlaw Lawyer listener Questions. Ever wonder about Non Compete clauses? Josh & Joe discuss. Attractive Nuisance you don't want to miss. If you have a trampoline or swimming pool stay tuned. Also today a question about opening up an initial estate administration. Buckle up here comes the Outlaw Lawyers.

If you have your own legal question you need answered

call Whitaker & Hamer 800-659-1186.

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Outlaw Lawyer
Josh Whitaker & Joe Hamer
Outlaw Lawyer
Josh Whitaker & Joe Hamer
Outlaw Lawyer
Josh Whitaker & Joe Hamer

Coming up on the Outlaw Lawyer, Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer Law Firm.

Going to dive right in. It's time for listener questions. That's all coming up next on the Outlaw Lawyer. I'm Morgan Patrick, consumer advocate. Each and every week we talk legalese and we get into a lot of different topics. We have listener questions for you today. But folks, buckle up.

It's going to be a lot of fun. And again, if you have any questions about maybe a legal situation that you are facing, you can always contact the firm. The number to call is 800-659-1186. That's 800-659-1186.

Leave your contact information there. Briefly what the call is about and an attorney with Whitaker and Hamer will be in touch and you can always email your questions to the show. That's questions at the and we will answer them on a future broadcast. On the air, bringing the most thrilling legal showdown in radio history, it's time for the Outlaw Lawyer. Cue the roar of the crowd as we introduce our powerhouse trio of legal experts ready to tackle your burning questions and dissect the latest legal news items. Leading the charge we have the fearless advocate, the master of the courtroom, attorney Josh Whitaker. With an unwavering determination and an arsenal of legal prowess, Whitaker is here to guide you through the complex maze of legal conundrums. But wait folks, we've got more legal brilliance coming your way. In the trenches with Whitaker we have attorney Joe Hamer, a true titan of the law. Known for his unwavering dedication and sharp analytical mind, Hamer leaves no stone unturned in his pursuit of justice and together Whitaker and Hamer form the unbeatable duo ready to go toe to toe with any legal challenge.

Listeners, this is not your ordinary radio show. The Outlaw Lawyer is a game changer, a collision of legal expertise and captivating discourse. The rule book is right out the window and the attorneys are ready to deliver legal analysis like you've never heard before. So buckle up buttercup and get ready folks because on the Outlaw Lawyer no question is too tough, no case too thorny and no legal news item is left untouched. It's time to break free from the constraints of the ordinary and dive head first into the riveting world of law with Josh Whitaker and Joe Hamer and Cassandra Nicholas. This is the Outlaw Lawyer, but the legal battles begin.

All right, that's your cue, go. Morgan, you do good work with those man. You're built to do those intros, you do such a good job. That was good music too man, I can't believe you composed that original piece. We use that in parody. That was a lot of talent to compose. I feel like I've heard that before.

That was a parody use so that's fine. Man football would be fun to watch. It's not too far away.

What are we about? Five weeks? It's coming man.

It's coming soon. Did you guys watch the draft of football? Yeah, the draft.

It was a while ago. I kept up with it. I'm not like a sit down and watch the draft type of person.

I'll follow along. I watched the first two picks. I watched until the Panthers picked and then I checked out. It's going to be a good pick for the Panthers. I know you're not a Panthers fan even though you live here in the state of North Carolina.

Who me? I'm just kidding, you are. You're family, but you got the Buffalo family too. That's right. So you've got dual citizenship. I got a connection to the to the Bills Mafia and so I'm in it.

I'm in it by marriage, but I still like my Panthers. Those intros, just by way of review, if you haven't heard us before, we try to do new intros every couple of shows. Morgan is great at it and me and Joe just kind of think of we go to chat, but GP chat GPT, right? We go to open AI and we put in. Hey, this is our radio show.

Do an intro in the style of blank. So every week we try to change up the style. So this was obviously do it in the style of NFL announcers about to introduce a game, right? That was the I think that came through. I would hope so.

Morgan Morgan sold it. Yeah, but we did probably get poached from this job now. So we use open eye for that and we use it for some other things here on the show. And we usually tell people when we've used it right, we'll use it to create some legal questions or what have you.

You know, but I thought it was interesting. I read Sarah Silverman, who's a I guess you could call her a comedian. So she and a couple other people filed suit against open eye against the makers of chat GPT for just that for copyright infringement. For basically, you know, they're they're like they're alleging that open A.I.

used everything on the Internet, whether it was there legally or illegally, used everything to train the program that runs chat GPT. And they did that without her permission. I guess Sarah Silverman's written a book, I guess.

And it was good for her. There's two other authors. And they say, well, there are materials were used because they're on some websites illegally. So you use that to train. And then if you ask if you go to chat GPT and ask them to write something in the style of Sarah Silverman's book, whatever, you know, it'll do it.

It'll do it pretty good. And they're saying that's copyright infringement. And so that's a lawsuit that was just filed.

I don't know. I didn't like to see where it was filed. I'm sure it's federal court. And look at the state.

But that's the first one I know so far where someone's filed that lawsuit. And I wonder I wonder how that's going to work out. I know if she takes away our really cool intros.

That's going to be the start of a blood feud between she and us, man. Excuse me. My throat's a little sore. I mean, nice. You look so healthy, though. Your skin is radiant. You like you've been tanning. I've yeah, I've been in between the lake and the beach. I've been in the sun a lot. So it's it's that time of year where you got to get on the water, man. Got a tough life over there, Josh, between the lake and the beach. That's pretty cool, man.

My skin doesn't look like that because I've been in the office putting in work for my clients. Joe Joe likes to spend time at the pool. Just more of a pool man. I've been there a time or two. But now back to football, man, I'm excited about football. I have not been I was talking to my talking to my kids. My kids are big sports. They're just all aging into becoming like big sports fanatics. And I don't think I've been to a painters game. It's been over a decade since I've been to a man. Don't go.

You don't think so? Look, I love the Panthers way more than you do. It's not a contest.

But if it was, I'd be I'd destroy you. And I'm cursed, man. I'm every game I've gone to. It's like torpedoed whole seasons. Like I go to the game and everything falls apart after that.

So maybe you don't have that same thing. It's a good time. I'm assuming if they win. But I've never seen I've never been there to see that. I mean, I mean, I think I've been to six or seven losses, everyone, not just losses, like not competitive losses.

And like some of these were where the outlook was good for the Panthers and like we should have been very competitive. We should. It doesn't matter, man. It's the touch of death when I step foot in that stadium. So I'm swearing it off. But you should go. It's expensive.

They say it's expensive. I hear it is. It's fun, man. It's a good environment. Really good. We got good fans, very good environment.

But yeah, they just lose when I go and it hurts my hurts my heart. I know I've talked about this on the show before with my oldest. His summer project is basically resurrecting every video game system I've ever had that I still have parts of in storage. So he's pulling them all out.

He's getting them all work and he's seeing what games still work. But we got to play the original PlayStation working and we pulled out I think it was 98 Madden. And when I played that Panthers team versus the Bills. Yeah.

And that Panthers team had, if you remember, Bianca Petuca. Yeah. Oh, yeah. You remember him, Morgan? Oh, yeah.

Bianca Petuca. Yeah. Good old Tim. But they they were having a field day trying to pronounce that name.

That was like that was like a 10 minute. But that was was I think Wesley Walls was Wesley Walls was still on that team. Yeah, I was still young.

So they had Wesley Walls and it was Steve Berlin. It was tough. It was tough team to win with.

They were four and twelve that year. It was a lot of it was a lot of 10 yard passes to Wesley Walls is what it was. Gil Haskell running the offense.

Yeah, I don't know who that classic offensive coordinator. I'm going to make a bold prediction on Panthers this year. Yeah.

Yeah. I think I think they got a shot. I think they had an outside shot at the Super Bowl. I think they're going to do finals at least. I think this year. I think that they're going to be substantially better than they were last year. That's my bold prediction.

Anything better than that would be great. But some good teams out there in football, man. Now, Joe, how's your how's your basketball team doing?

We're doing we're doing about like the Panthers in 98, you know, losing more than we're winning. But, you know, these kids these days, man, these kids, it's like a blink. You know, my own kids are growing up, but all these these other kids have have really grown into their athleticism.

And I think I'm growing up, too, man, just in the wrong way. So, you know, we had a twenty there's a twenty five and up and a thirty five and up league and we did the twenty five. Oh, that was a mistake. Well, we had a couple of under thirty five people, which we found out they give you an exemption.

You can have two and we've got two. So we blew it. But man, I tell you, there's some really healthy twenty five year old kids out there. Really athletic kids, man.

I think the last time I tried to play in the league, I think I was it was a while ago, but it was it was it was rough. It was a it was a reckoning for me. But you try to stay in shape. You stay. All right, man, we're staying in these games until like the last eight minutes and we gas out and we'll be it'll be like we'll be up by a couple of points or it'll be close. And then I'm talking four minutes. We're down 18 points from being up.

It's crazy. We just fall apart completely. Well, we actually talk about the law. We're always going to talk about the law on this show.

Statutes, case law, listener questions. Me and Joe are practicing attorneys with the law firm of Whittaker and Hamer. All we do all day is sit down with people, consults, courthouse, transactional law.

Our attorneys are kind of fanned out across the state and we see a lot of stuff in our offices. We talk to a lot of people. And when we come on this show, we try to talk about things that we're getting asked a lot in our office that we think may be of some value to the folks who are listening. And so today, in that vein, we're going to do kind of what we call a listener question only show.

So the whole show today is dedicated. Two of these are listener questions that I got via email. And one is something that came up in in the office over the past couple of weeks that I get a lot. So I thought it'd be something to talk about. So, you know, Morgan, Joe, what we're going to do.

We got we got three listener questions. We're going to talk about non compete contracts, clauses, whatever you want to call them. But non competes and the difference when you're an employee and you're an independent contractor and you sign a non compete. So that's what we're going to do next. But we're also going to talk about attractive nuisances, right? So we're going to talk about the lie, the theory that you could be liable. It's kind of like if you build a pool and then a kid gets in your pool and you didn't have a fence. You need to take the right precautions.

You can be held liable for creating an attractive nuisance. We're going to talk about that. And then we're going to talk about a state administration.

So when someone's passed away and you're opening up an estate, you're probating a will, you're administering estate. We're talking about just the steps you have to take to get that open to the very, very beginning of that process. And so we've talked about these things in different contexts before, but I don't think we've talked about them in these kind of contexts. So that's that's what we got in front of us.

All right. We got listener questions coming your way. You're listening to the Outlaw lawyers, Josh Whitaker and Joe Hamer. They're your hosts and managing partners at Whitaker and Hamer law firm offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina, Gastonia and Moorhead City. And again, practicing attorneys here in the great state of North Carolina.

If you've got a legal situation you're facing, you've got questions, you need some answers. You can always call Whitaker and Hamer. Here's the number 800-659-1186. That's 800-659-1186.

Leave your contact information briefly what the call is about. And an attorney with Whitaker and Hamer will be in touch. And you can always email your questions to the show. Questions at the outlaw lawyer dot com. We're back with non-compete on the other side. Welcome back into the outlaw lawyers, Josh Whitaker and Joe Hamer. Managing partners Whitaker and Hamer law firm are your hosts. Offices located conveniently in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina, Gastonia and Moorhead City. They are practicing attorneys here in North Carolina.

Again, managing partners of the firm. I'm Morgan Patrick, consumer advocate. And each and every week it is always about legalese. But today we're getting into listener questions.

And again, we'll have some fun with it. But first up, Josh is non-compete. Yeah, we we talk to clients a lot. Right.

We talked this is something that is called we get a lot. They have signed a non-compete. Right. So when they were hired as an employee, when they were hired as an independent contractor, you know, part of their agreement was included a non-compete. Right. So a clause where basically if you leave the company, sometimes if you're terminated for cause, you can't do the same type of job in a certain area for a certain length of time.

Right. You can't compete with your current employer. If you were to leave, that's what a non-compete is. And Joe, I guess to get us into this discussion, we're going to have to kind of delineate what the difference is between an employee and an independent contractor. Yeah, that's a good distinction. And it's an important distinction as well in terms of like you said, who can you even have in or into a non-compete with you?

And so there's a few things we look at. You know, there's a few common law things that we look at when we're determining whether somebody is an employee or an independent contractor. There's a behavioral aspect where it's basically, you know, does the company control or does the company have the right to control what the worker does and how he does his or her job? That's going to speak to whether they're a contractor or an employee because again, you're going to see more control exerted in the employee situation than you are the independent contractor situation. There's a financial aspect or the business aspects of the worker's jobs, of whatever the worker does. Is that controlled by the payer? So things like how they're paid, whether their expenses are reimbursed, who gives them their tools, supplies, etc. And then whatever the type of relationship is. So do you have a written contract that establishes employee type benefits?

Does the relationship continue? And is the work performed a key aspect of the business continuing? There's just, there's a few different factors that we look into there. So a non-compete can be signed by either an employee or an independent contractor. So you can, you know, when you start working for somebody, you're usually excited, right? You usually want that job and you've worked for it, you interviewed for it, and they sit you down, you sign a bunch of paperwork and at that initial meeting, sometimes you'll get a non-compete in front of you, a non-competition agreement. And so just read it, right?

If you want the job, it's something that comes with the job, but you need to know that if you leave or you're terminated in a certain fashion that they can restrict your employment opportunities down the line. You know, North Carolina has routinely, so the courts generally disfavor these. The courts like competition. They disfavor.

They don't like them. They don't like the non-competes. But as long as it meets certain criteria, they will enforce them even though they don't really want to, right?

So there's, we talk about time limits and geographic limits, right? So certain professions, you can't even ask someone to sign a non-compete, right? A lot of professions where you need a professional license, like doctors, lawyers, psychologists, there's a lot of professions like that where it's just illegal. You can't sign a non-compete.

It will not be enforced. The reason being you've got this license, you've worked hard for this license, it's your sole source of livelihood. And to say that you can't even practice your profession, I mean, you're basically taking away someone's ability to make a living. And two, they think society needs that professional, right?

They think society, the theory is like, hey, we need more lawyers. Not everybody might agree with this, but the theory is you need your doctors out there. You don't want your doctors. You don't want a doctor not to be able to practice in North Carolina because he signed a non-compete and he's got to go to another state and practice.

You want that doctor here. So it's professions like that. But pretty much everything else is fair game for a non-compete. And a lot of times this comes up in like a salesman type arena, right? You go work for a company and they give you a customer list to work. They give you some tools so you know how they operate.

They know what they use and they don't want you to leave and then use that information against them. And so that's where these non-competes come in. North Carolina has approved, they've approved non-competes with time constraints as long as three years and geographic constraints are kind of all over the map. But it depends on your business. But they've had them where they are limited to the whole state of North Carolina. And so these are pretty powerful tools when you find you're not working for that company anymore. You want to keep doing the same thing you've been doing, but they don't want you going to a competitor and they've got you on a non-compete. So these things come up a lot.

Yeah, they do. And like you said, there's, I mean, there's, the courts disfavor these, but at the same time you can, as a business owner, especially in certain types of businesses, you can see the necessity for this, right? Like you, there's certain businesses that have trade secrets that have, you know, proprietary knowledge that you don't want someone to be able to come in and then immediately take to a competitor and use against you.

You don't want someone to be able to come in and just poach clients. So it's not to say that even though the courts disfavor this, that there's not a legitimate reason for a non-compete. And that's why we say that the courts may disfavor it, but they are allowed, you know, as long as these certain elements are met and taken care of. And the court will look at it too.

It can't be punishment. It has to protect a real interest. The company can't enforce a non-compete against you just because they don't want you to be able to make a living. It has to protect their real interests.

That's the way a lot of these get attacked. And then figuring out what damages are, you know, if you have a non-compete and you break it, you start working for a competitor. Your old, your old company will sue you to get a restraining order to restrain you from taking that job. And then they have to continue on and prove, you know, what their damages are. And so sometimes the damages will be written in there because it's hard to prove, right? It's hard to prove what your damages are when someone leaves your company.

And we call that the liquidated damages clause, where you just, when damages are difficult to ascertain, that's our fancy way of speaking it. You just put in the liquidated damages clause, which is basically, hey, we're mutually agreeing that this amount of money is what we're going to state will make this better in the event it goes south. And the time when you sign your non-compete is important too. If you sign it at the beginning of your employment, whether you're an employee or whether you're taking work as an independent contractor, if you sign it at the beginning, that's when you should sign it. You should sign at the beginning. You know, if they just bring it to you one day, you've been working for like nine months, they just give you something new to sign, don't give you a raise, don't give you anything new, then that non-compete's probably not very valid. So, you know, an attorney is going to ask you, well, when were you presented this? Did you have time to review it? Did you have time to take it to an attorney?

When did you sign it? You know, and so all that becomes important when you analyze it. And that's what you should do. You should always talk to an attorney about your non-compete. If you know you have a non-compete, you have a copy of it, before you quit your job to take a job that may be in violations, you should talk to an attorney, right? You should get a professional to evaluate that and the likelihood that it could be enforced. And then you need to understand too, even if that attorney says, hey, I don't think this will be enforceable, that doesn't mean that the company can't still try to enforce it.

And we've done that too. We've talked to clients who've come to us and presented non-competes and we'll say, there's some of these things that are a close call, right? Because you're talking about standards of reasonableness and you can look at what the court's done in the past, but you still got to let clients know, hey, there's a risk, right? There's a risk attendant in you presenting this to a judge or getting in front of somebody who may make a different determination. So sometimes in those scenarios, we'll tell folks, hey, this isn't a great non-compete.

It's close. You may want to look at trying to negotiate some kind of amicable settlement, whether it be stroking a check to somebody to make it go away. There's situations where you're still not going to want to roll the dice, even if we've got a feeling that it may not be enforceable. Yeah, you can definitely negotiate that as part of your severance, right? If you're in one of those jobs that would normally give you a severance package, you can give some of that back in exchange for them waiving the non-compete or making it shorter or having some sort of signed agreement that changes that a little bit. But the big thing is on the front end, you know, especially if this is like an industry you've been in your whole life, you're like 20, 30 years into your career, you're about to go to a new company and they want you to sign a non-compete. You might think about that because if you're there for a year and it's terrible and you want to leave and you sign a non-compete, this is what you've done your whole life.

This is how you feed your family. You know, non-compete can really cramp your style. So it's something I don't think people think about it a lot. I'm sure we've got older clients who've had to confront at a time or two, but especially if you're on the younger side, you're just getting into an industry you might not think about it as much. But let me ask you guys a question. I mean, do you guys see a lot of this?

I mean, do you sit down with, say, the company or do you sit down with the individual where you actually are talking about non-competes that are in a contract? I'd say both. I mean, we see it both ways. I mean, it's not overwhelmingly prevalent.

It's something we see on occasion. You know, we do a lot of things, so we're not strictly focused on that business aspect. But we do have, you know, business clients, obviously. So I know personally I've had both ways where we've put together non-competes for folks and made sure we're checking those boxes on reasonableness to make sure that it's as ironclad as possible. And then we've also looked at them for folks and tried to advise on how to, you know, whether they were sufficient and how to get out of them.

Yeah, I spend a lot of time, I have several clients who are businesses that operate, of course, nationwide and then do things in Europe, do things in Canada. And non-compete is something that they're very much worried about because they're fighting with other businesses that are kind of in the same industry. And once you get high enough, once you get far enough along in your industry, there's really only two or three players that are all kind of fighting for the same clients. That's when non-competes really get serious, kind of kick up a notch, you know. But they're negotiated. They're negotiated when you take the job and you can still negotiate it on your way out.

But it's just something to be aware of. And I've definitely met with people who had no idea they signed one until they quit and then their boss was like, well, you can't take this next job because of this. And then they come see me and they're in a bond.

So just being aware of it as a thing that exists so you don't just sign it without thinking about it. The Outlaw Liars, Josh Whitaker and Joe Hamer, Whitaker and Hamer Law Firm, where you can find managing partners there, offices conveniently located, Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia and in Morehead City. They're practicing attorneys here in North Carolina. So we're going over listener questions. Non-compete is down.

And next, attractive nuisance. We'll explain coming up on the other side. Now, listen, if you have a legal situation that you are facing and you've got questions, you need some answers. You can always call Whitaker and Hamer. Here's the number. Eight hundred six five nine one one eight six.

That's eight hundred six five nine eleven eighty six. Leave your contact information briefly what that call is about. And an attorney with Whitaker and Hamer will be in touch.

And you can always email the show. Send your questions to us. We'll answer them on a future broadcast. Questions at the Outlaw Lawyer dot com.

We're back right after this. The outlaw lawyers, Josh Whitaker, Joe Hamer, managing partners, Whitaker and Hamer Law Firm offices located Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia and now in Morehead City. Again, practicing attorneys here in North Carolina and the outlaw lawyer. We talk legalese each and every week. I'm Morgan Patrick, consumer advocate.

If you have a legal situation that you're facing and you've got questions, you can always contact the firm. Couple of ways you can do it. You can call eight hundred six five nine one one eight six.

Leave your contact information briefly what the call is about. And an attorney with Whitaker and Hamer will be in touch. Again, the number eight hundred six five nine one one eight six or email questions to the show. That's questions at the outlaw lawyer dot com. We'll answer those on a future broadcast.

Attractive nuisance. That's up next. Right. So this is we're going to have to do a short class on just general negligence. Right. So negligence.

I'll do you one better, man. I think we can get more specific to make it even. You know, and it is it's just an offshoot of that.

But we can talk about. Negligence is essentially if you have a duty of care to someone, you know, and there's there's various situations where you're going to owe someone a duty of care. It's it's essentially being, for lack of a better word, negligent and providing that care and then some damage or injury occurs. And that's where the liability comes from.

And in North Carolina, we've we take that a step further when we talk about attractive nuisances and we can talk about. What is your duty of care to somebody who is who's essentially trespassing or coming onto your property? And in North Carolina actually has a Trespasser Responsibility Act. So as a general rule, as a landowner, you don't know any kind of a duty of care to any trespasser. And you're not subject to liability for injury to a trespasser.

That's like the baseline. But then you've got exceptions. And so when we get into attractive nuisance, we're talking about one of those exceptions, which is basically if you're a landowner, you could be liable for harm to a child trespasser resulting from an artificial condition on the land.

If if there are certain factors that are hit. Right. So if you had reason to know that their children were likely to trespass at that location, if you reasonably knew that there was a risk of injury from that condition.

So, again, there's a there's a list of elements, but in essence, that's what we're talking about with attractive nuisance. Yes. So negligence, you owe almost everybody unless we have a statute, like Joe said, or unless we have some sort of exception, we all owe each other a general duty of care. And what would an ordinary, reasonable person do?

Right. So I owe you a duty of care when I'm driving that I'm not going to cross the sitter line and hit you. Because if I do well, then that's negligence. I have been negligent. You're at least your vehicle. If not, you were harmed as a result of my negligence.

And I owe you damages, whatever they may be. Right. And so you have plaintiff's attorney.

These are a lot of the guys that advertise on TV all the time. Car accidents, truck accidents, motorcycle accidents, those are all the same type of law kind of slip and falls. Right. If you're in a store and they've mopped, but they haven't put up signs and you fall, that's that's negligence. Medical malpractice is an offshoot of that, too. Doctors not using the standard ordinary care. So negligence is this broad legal theory that operates in a lot of different ways.

But here, you know, I think the example you see and unfortunately, I think in Raleigh, you know, a month or two ago, we saw this happen and made the news. But, you know, having a pool that's open to who this pool is open to, like, I think residents, the last one that I saw, but not having proper safety fence. Right. Whatever, whatever you need, not having the safety measures you need in place and then someone, God forbid, dies or gets hurt, then then this is kind of an attractive nuisance theory. You've built this pool that people are going to come to and you haven't fenced it off. Right.

You haven't done whatever. Right. God forbid someone gets hurt and you're going to be liable under this theory of negligence and attractive nuisance. So that happens.

It does happen. And like you said, there's there's a level of fairness that that we look to and that that plays into this. And so we don't we don't want anyone who's taken the proper steps, who's put there because, again, it's your property. And we're talking about a situation potentially where you got no clue that there's somebody coming on your property. And again, in North Carolina, one of the elements is that you could reasonably expect that somebody was going to come and be drawn to this attractive nuisance. So I guess you can't say you can't say you had no clue because the argument against that is that you should have had a clue.

Right. But but there's elements of fairness built into this. And if you do what you should do, if you if you protect from this nuisance, if you don't have some kind of unreasonably dangerous, attractive condition, then then you're going to be all right. But but but again, you get into situations where there's there's just no that level of care that we are saying as a society you have to have in this situation.

It's just at such a low point that we're going to find you liable. You're going to have a problem if someone gets hurt. I think it's important to point out to, you know, attractive nuisance theory was really when you change land. Right. So you have to be doing you have to build a pool. There's been cases where someone's had a bunch of abandoned cars in their front yard, trampolines, treehouses, trampolines, treehouses, things that kids would be attracted to. This is tunnels.

I can't see myself going into a random stranger's tunnel, but maybe. Yeah. So the attractive nuisance is basically for kids. And there's been some adults who have some impairments where they, you know, their their their decision making ability is child, you know, childlike.

So it's it's it's a child or a childlike person who wanders onto your property to play in something that is an attractive nuisance, something you've created through neglect, like abandoned cars or because you went out and bought your kids. Trampolines are so dangerous, man. They are, man. But there's so much fun. You ever done a backflip on a trampoline?

If not, we should leave the show and immediately go. And I want you to bust out a backflip. So back when it was great. Back when I was growing up, no one had those little trampolines like they have now. And there was no bedding.

Sometimes you see these little ones that are bedding. We had like everybody for web. Kids these days with their netting.

That's the downfall of our society right there. Kids with netting on their trampolines. Every kid that I knew and there wasn't a lot of them. It wasn't like everybody had trampolines back in the day because they were expensive and they were huge. A trampoline back then was like the size of a pool, right? And you would go to your friend's house that had a trampoline and there were like 99 kids on it. And someone always got hurt, man. Not like hospital hurt, but like hurt bad enough where everybody had to go home. There's kids out there getting hospital hurt on these things. But I got hurt a number of times on trampolines. I mean, I'd ask every year for Christmas.

I'd ask for a trampoline and a four-wheeler. And I never once got them because my parents were smart. They knew that'd be it for me. I got lucky. I had a four-wheeler. I had a four-wheeler growing up and no trampolines. But yeah, I got a couple. I had the old crack sternum one time from a trampoline doing the backflip and landed wrong. We used to do a lot of wrestling on the trampolines, man. Well, you have to.

I mean, why? That's what I was there for. I know. I get it if you're not going to. Yeah, that's it.

What other purposes though? But yeah, you put a trampoline in your front yard and it's just out there and these kids show up and they get hurt on it. You're probably going to have some liability even though they're on your property because you've created an attractive new distance. Potentially. Again, it's an oversimplification to say that. But I think everybody should be aware of the potentiality of that, right? Like of you doing something like this, somebody wandering onto the property, and then you end up with an issue.

What about this, guys? And it's just a slight diversion from that. What if you're having a kid's party and you have a bouncy house and you rent it and it comes to the house and somebody at the party, the kids run into each other, tooth gets lodged in another kid's head, stuff like that. I mean, are you liable?

Good God, Morgan. Yeah, no, I think so. If it happens on your property, I mean, arguably if the bouncy house failed for some reason or wasn't operating properly, maybe the person who rented it to you might have some liability. But if there's just at your house and you've invited folks in. It's on you, man. Don't ever invite anybody to your house you don't like. You're going to get sued and then you're going to have to sue somebody else if you want to try to place the blame elsewhere. I think you said don't invite anyone to your house.

You should live in a cave. That you don't know real well or you don't like. Yeah, I can see that. I think it's important to point out, though, you have to create the attractive nuisance. Right. So if you buy like if you buy 10 acres and there's a pond in the front yard and you post all these signs that people aren't supposed to use your pond, private pond or trespassers, then someone drowns in that pond that you may have some liability. I'm not going to say you're scot free, but it's not going to be attractive nuisance liability because that is the natural condition of the land. Right. Attractive nuisance only really comes into play when you've created something that would attract people. So I think that's I think it's important. So like if you you know, I think this is how this question came up. This was a listener question and it was basically about a pond.

And what can I do to to get rid of any liability? And, you know, you post your notices, you run people off. If people are there, you make it known that no one is supposed to be there.

But if something happens, you've done everything you can do. And that's just the natural state of the land. And like you said, that's not going to be an attractive nuisance issue and just expanding on things that we don't consider attractive nuisance type of issues. You got ponds and lakes, you got cliffs and hills, small things that can be choking hazards like acorns and sticks.

You're good on all those, man. So you don't have to you have to worry about some idiot kid rolling up in your yard and eating all your acorns and choking. So in this when when we were in law, I don't know how you do it now when I was in law school and they start talking about this negligence and they start talking about trespassers and attractive nuisances. There's all these cases in like the eighteen hundreds about shotgun traps. You ever read about those, Joe? I didn't. But it sounds awesome.

I want to hear all about it. So there I guess there was this rash back in the day. What you would do is you would you'd set up a hidden shotgun trap. And so somebody walks on your property, they trespass. There's a trip wire and the shotgun like blast battle.

I teach those kids that want to jump on my trampoline. You can't do that. No.

Yes. That's a that's kind of it's kind of another line of negligence, kind of under attractive news. You have created a danger. So, yeah, you can't do the shotgun trap, man. You think that goes without saying, but you never know, man.

Like there's there's companies I'm going to have to Google shotgun traps and see if there's any. Don't do that. Put you on a watch. If you if you've been listening to us, we're going into our I don't know how many how long we've been doing this now. Years, man. If you don't learn anything else from us, do not put a shotgun trap on your property.

Man, man. Don't let's. Yeah, let's not do the shotgun trap. All right.

We're going to stay away from shotgun traps. Josh Whitaker, Joe Hamer, managing partners, Whitaker and Hamer law firm. They are the power behind this show. The outlaw lawyers, they are practicing attorneys here in North Carolina.

Offices conveniently located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and now in Morehead City. And again, if you are facing a legal situation, you've got questions. You can always call the firm. Eight hundred six five nine one one eight six. Leave your contact information briefly what that call is about. And an attorney with Whitaker Hamer will be in touch again.

The number eight hundred six five nine one one eight six. And you can always email your questions to the show. Questions at the outlaw lawyer dot com will answer them on a future broadcast. More listener questions coming up. The outlaw lawyers, Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm, practicing attorneys here in North Carolina. They're the hosts of the show. The power behind the program.

Offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia and Morehead City. And folks, it's always about legal. They'll talk a bunch of different topics. Again, the latest, the headlines.

What's going on with the Supreme Court? And then occasionally, which is always a lot of fun, we get listener questions. And that's what we're doing today on today's show. Josh, what is up next?

So I thought it would be a good thought would be a good topic to talk about. I'm going to call this general getting an estate administration started. Right.

This happens. Our firm has an estate planning department and we kind of have an estate administration department. Right. The estate planning department we've talked about a million times on the show. I get your will done. You know, getting your trust done, handling your non probate assets and trying to the goal is by the time you pass away, everything is automatically set up to go to the next generation and you avoid probate. You avoid a state administration. That's what you're trying to avoid. Well, a lot of people don't avoid it.

And so we handle a lot of a state administration where you passed away and either we can't find your will or, you know. Well, that's not true. You just have it.

You haven't succeeded. It could be true. I mean, you can theoretically it could be.

Yeah, it could be true. We've got one now where someone passed away and they really weren't close with family. They weren't married and have kids and walked into a shotgun trap.

Yeah. But passed away. And, you know, no one knows if there's a will. No one knows where they banked. You know, today, a lot of people don't get statements in the mail.

Back in the day, that's how you figured stuff out. Like if someone passed away, they didn't have a spouse living with them or didn't have kids living with them. And you're going to try to administer their estate. Well, you got to figure out what they own. Right. You got to figure out what's going to be in the estate. And that is not really a legal problem so much as it is just a you know, you would collect their mail for a couple of weeks and you get some bank statements, you get some credit card bills, maybe the house mortgage, the house note. Right.

You'd figure out where things were. And for this one, we're having a hard time because everything was set up on email. And so they're working on getting into this deceased person's email account to try to figure out. Well, what are we dealing with? Right.

We don't even really know what she has or what she owns. And so anyway, it can be difficult to just start the process. So if someone's passed away, you know, you you don't have to do it immediately. Right. It's going to take a while to get a death certificate. Usually that takes a week or two. But you want to try to find a will.

And North Carolina changed a long time ago, like in the 80s, North Carolina. Back in the day, you get your will done and the attorney would take it down in the courthouse and register your will. And there'd be, I was about to say database, but basically it was a book. It was books. Type of database.

That's old school database. There'd be books. And so if I, Josh Whitaker, kick the bucket, you go down there and you'd see I made a will in 1982.

And there it is. And then you would just the next step would be probating the will, which is getting the process started. But a lot of times just figuring out, you know, it's different. You know, if you if you live with a spouse and you guys have done a joint estate plan together, then the surviving spouse is going to know where everything is or, you know, you tell your adult children, hey, this is where I bank. You know, this is where stuff is. You know, it's good to give them a general idea. You know, most attorneys, when you do your estate plan, they're going to recommend you kind of make a list of everything. So right. So at the time I did this will, I had accounts at this bank and this bank and my annuity was here.

And this is where my investment account was because somebody's got to figure that out when you're going. Yeah. Tell your people your stuff, man.

That's the recommendation. Right. Like you don't want your folks to be flying dark, not knowing where anything is, having to do all that legwork. Make it easy on on your people that you're leaving behind. But so that's one of the first things we talk about when you come in and you say, look, so-and-so has passed away. They there's a will. That's the easy thing, right? It's super easy if they got a will. If that's a will, then your your job's gonna be a lot easier because it's procedurally. Yes.

Not a moat. You're still it's still going to be difficult emotionally. Yeah. As a lawyer, you know, you talk to so many people, everybody that comes into our office is either has a problem that they need our help to solve. That's kind of gotten out of control or they're planning to avoid problems. Right. It's usually what we see. And so me and Joe have been doing this for a while. We get desensitized to some of this. So if you hear us talking, we're not trying to make light of a very serious situation where we're so used to talking about it and dealing with it. It's not a it's not a big deal anymore. But but yeah, you're obviously probably not going to be super excited if you're in our office to to start an estate for someone you knew well enough. We're like, for example, that you're there.

Yeah, you're there. Yeah, exactly. And we say that. But and that's not always the case. Right. But ninety nine percent of the time. Right.

Ninety nine percent. So if you if you found a will and the original will is what really matters, copies of wills are nice because we know it exists and attorneys can use those for some things. But really what we're looking for is the original will, because that's the one you take downtown to probate, to open up an estate file. And a will is great because it'll tell us exactly who is in charge. Right. It'll tell us who the executor is supposed to be. And so we'll already know who the executor is supposed to be. And we'll already there's usually some generic language in there that waives bond.

Right. So that's important. Otherwise, you'd have to post a bond. That means you'd have to get depending on how many assets are going to be in the estate.

You'd have to go buy an insurance policy that would ensure the heirs if you screw it up. And so that's what a bond is. And the statute requires a bond unless the will waives it. And so having the bond waived is important. And no one who's in charge because otherwise, you know, if you if you have that, that is it's it's it's a lot easier to get in the state open if you don't have that. We got to figure it out.

Yeah. There's a whole you kind of have to do a family tree. And there's a statute that says, all right, this is the person first in line to be we don't call it the executor. We call it the administrator, the administrator of the estate. And if that's like you and your eight siblings could all qualify, then your siblings are all going to have to sign renunciations saying that, hey, I'm OK with this person being the administrator.

It's not going to be automatic. So we're going to have to get stuff signed. And then we want everybody in theory to waive the bond. But we have to get everybody signed a bond waiver.

And so that's kind of a chore, especially if everybody's spread out across the state or there's the one person in the family you don't get along with that you don't talk to. But you need them to sign these things that can really that one person can really torpedo the deal, man. They can make it a lot.

They can make it a lot more. And you could have just done a will and taken them out. So I guess that's a that's a advertisement to get your estate planning done if you hadn't done it.

Disinherit your crazy relatives today. It's not super difficult. The price of an estate plan has not to be. They talk about these inflation numbers is not inflated.

It's been pretty steady. It won't cost you too much money to eat your you know, your estate plan. But but if you don't, there's really there's really a mess. And we see the results of that all the time. And and, you know, some people I've heard some people say, well, I won't be around, so I don't care. You hear people say I've heard people say that, man.

I've heard people say that a lot, actually. But you really don't want to leave a mess. You know, if you don't own anything, I guess it doesn't matter. Right. Because you got to own something to leave something to people. But you don't want to leave a mess, man.

It's not that difficult to fix to figure these things out. Right. No, no. But just to give you some. I was just going to jump in and say, but a lot of people procrastinate.

I mean, you almost. Especially on this, too. I mean, you need to basically kind of rattle their cage a little bit when they get a little bit older or at least start thinking about it. If it comes up in a discussion, you need to basically say, look, you need it. Absolutely need it. Joe is Joe has spent a lot of time at our firm. We've tried to make our estate planning process much simpler. Yeah, it's great.

We have our clients watch the Final Destination movies. I come in and I know we have we've really streamlined it, man. And I think we, you know, to toot our own horn, I think we're doing a really good job of making it streamlined, making it efficient, making it easy to understand, making it easy to digest. A lot of a lot of times you go in for an estate planning console and you get so much, so much thrown at you.

And then you get all these documents thrown at you with chock full of this legalese. So we've really tried to condense that, include a lot of helpful summary reference information that hit the high points and just kind of take a lot of the intimidation factor out of it. And and it's been it's been good, man.

It's been good. We've we've really overhauled it in a positive way. So we we really try to, like Joe said, streamline it. And a lot of it you can do at your desk, like a lot of the you know, we've tried to eliminate the time you have to spend making an appointment to go to an attorney and you'll still sit down with us and you'll still talk to us. But we've tried to make it so that in your spare time, you know, you don't have to miss work necessarily to get a lot of this done. And really, really try to simplify it. And it's worked.

It's worked really well. Yeah. And that's what it should be, right? Like, I mean, it's already a morbid, difficult conversation and thought.

It's a different, difficult thought train and path to go down. So, you know, keep it simple. And while still providing super high level and high quality legal representation, just top notch. If you have any questions about estate planning and maybe you're thinking maybe I need to sit down and open one up, you can always talk to Whitaker and Hamer. You can call them eight hundred six five nine one one eight six. Leave your contact information briefly what the call is about. And if it's about estate planning, obviously just put it in the message. And an attorney with Whitaker and Hamer will be in touch again.

That number eight hundred six five nine one one eight six or you can email any question to the show dealing with legalese questions at the outlaw lawyer dot com. And we'll answer that on a future program. All right. We're back right after this and we'll wrap this one up. The outlaw lawyers, Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm, practicing attorneys here in North Carolina.

Offices conveniently located, Raleigh, Garner, Clayton, Goldsboro, Fuquay, Farina, Gastonia and in Morehead City. I'm Morgan Patrick, consumer advocate. We get into legalese. We have a lot of fun with the topics.

Obviously, some of them get pretty serious. We do the latest from the Supreme Court. Anything that's big, we're talking about it here on the outlaw lawyers when it deals with the legal. And if you've got a situation that you're facing and you need some answers to your questions, you can always contact Whitaker and Hamer law firm. Eight hundred six five nine one one eight six.

That's eight hundred six five nine eleven eighty six. Leave your contact information briefly what the calls about and an attorney with Whitaker and Hamer will be in touch. And as always, email your questions to the show. We'll answer them on a future broadcast.

Questions at the outlaw lawyer dot com. Josh and Joe, I feel like we got through a lot of stuff today. And like I said, that I always feel good when we get through these listener question shows, because I feel like we've addressed maybe some questions that are out there and radio podcast land. Well, at least for those listeners, we took care of their questions. We did. There's three people we can we can check.

Check off the box. So at least three people were slightly helped by our show today. Yeah, but you sparked debate out there. There are we gave those people life changing advice, man. Come on. Those people never be the same. I this is the start for them. They're going to wake up tomorrow.

They're going to start like running marathons. And I tell you what, man, I tell you something. I'm going to tell you something right now. I admire people.

I'm not going to come come down on people, people who can run marathons, crazy people. I'm really happy for you. I'm glad you can do it. I know it takes takes. I can't even physically I like to think in my life I've accomplished a lot of things that were probably hard for sure.

Right. If you're if you're 18, you're like one day I'll do blank, blank, blank. I think I've checked off some things that probably that I think 18 year old Josh for things to impress up. Wait, wait, wait, wait.

As long as it's OK to air. What are some of those things that you've checked? I have no idea. Tons of things, but there's tons of that's the point. Yeah.

Yeah. We don't have enough time. We're going to run out, but you'll never see me run a marathon. I will never been one of your boxes is like do a marathon. I never wanted to do it. I don't have the physical wherewithal to do it. It would literally kill me if someone made me at gunpoint, go out and run a marathon. I don't love the running either, man.

It's not for me. You know, I'm a sporty fellow. I ran a marathon 30 years ago.

Well, 29 years ago. Did it hurt? Yeah, it hurt like hell. Yeah. He's still not recovered from it.

Listen to his voice. Yeah, we did. I guess it was Leukemia Lymphoma Society. They sponsored we did a fundraiser for them when I was working in South Carolina. And we trained for the Marine Corps Marathon, which is a great one because it's flat and you get to run by some pretty cool stuff.

And it's not boring. But they forgot to tell you how painful it is. And look, we had we had a local trainer. We we we trained right up until the marathon.

I just did not do my one 18 mile run prior to the marathon. And I did 13 several times, but not not 18. And when we got to about 13 is too many. Yeah, I got I got to 17 guys and the body just started to shut down because it's like, we're done. We're not doing this anymore. And that can't be good for you.

Mine shut down at negative miles. But I mean, this is a thought of it. My knees hurt thinking about it. My knees hurt too, man. Well, I had several goals. I had blown my knee out playing basketball.

You guys are familiar with injuries. And this was part of my rehab. I was training. And yeah, I got through it, but I did a lot of run walk towards the end. When I was growing up, I played basketball constantly.

Right. If I wasn't at work, if I wasn't in school and I was no great basketball player, but I played every second I had until the early 30s and then I still tried to play in leagues. And then eventually I blew my knee out and that's it. But my knee blowouts coming, man.

Just count down the days. But I remember being in high school and playing in a neighborhood and had a good it was a court. You could only really do four on four on a good four on four game going on smaller court. Lots of fun. And somebody from my church, my guy from my church that we really like. But he was probably heck, he's older than I am now. And we convinced him to play. And he came and he did a bunch of hook shots that all went in. We were super pumped.

I don't see a lot of hook shots. Right. And then he died. No, no, he's fine. But he played one game.

He played one game, played very well. And he was like, that's it. He's like, I'm gonna be sore for weeks. I was like, what are you talking about? And now you get it.

Now I know. I was like, I would have had to, like, take the day off from work. I can relate to that guy, man.

I didn't take aspirin before I played and like right after I played. But anyway, I will promise you, you will never see. I don't say this with pride. I say this somewhat embarrassed that I don't have the fortitude to do it.

You'll never see me post about how I just finished a marathon. You're putting that energy towards other things, man, towards good things, helping people, doing the law. Yes. Simpsons Marathon, you know, stuff like that. I mean, you can do that.

You can do that. All right, guys. Well, another great show, The Outlaw Lawyers, another one in the books. Josh Whitaker, Joe Hamer, managing partners, Whitaker and Hamer Law Firm. Practicing attorneys here in North Carolina offices, conveniently located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia and Moorhead City.

We will be back on the air with you next week. Outlaw lawyers hosted by an attorney licensed to practice law in North Carolina. Some of the guests appearing on the show may be licensed North Carolina attorneys. Discussion of the show is meant to be general in nature and in no way should the discussion be interpreted as legal advice. Legal advice can only be rendered once an attorney licensed in the state in which you live had the opportunity to discuss the facts of your case with you. The attorneys appearing on the show are speaking in generalities about the law in North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of the show, contact us directly.
Whisper: medium.en / 2023-07-22 16:25:54 / 2023-07-22 16:50:48 / 25

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