Virginia Injury Lawyers Blog

April 18, 2016

Court Allows Plaintiff to Rely Solely on Circumstantial Evidence in Lead-Based Paint Lawsuit

Earlier this month, a Maryland Court of Appeals issued an opinion in a case brought by a woman who claimed that she was exposed to lead in dangerous amounts as a child when she lived in a property owned by the defendant. In the case, Rowhomes, Inc. v. Smith, the court ultimately determined that, although there was no physical or direct evidence that the defendant’s property contained lead, the evidence was sufficient to survive a summary judgment motion.

Summary Judgment Motions in Personal Injury Cases

Before a case is submitted to a jury, either party can ask the court to rule on the evidence presented, in hopes of obtaining a summary judgment. If a court determines that the evidence, when viewed in the light most favorable to the non-moving party, still requires a verdict in favor of the moving party, summary judgment is appropriate. If summary judgment is granted, the case is over, essentially before it even began. A summary judgment motion is a common way for a defendant to “test the waters” in personal injury cases, getting a feel for how the judge will view the evidence before proceeding to trial.

Rowhomes, Inc. v. Smith: The Facts of the Case

In Rowhomes, the issue for the court to decide was whether the plaintiff could survive a summary judgment motion without any direct evidence that the defendant’s property contained lead-based paint at the time when the plaintiff lived there. This was an issue because the home had been demolished since the plaintiff moved out, and it was never tested for lead-based paint prior to its demolition.

April 11, 2016

$4.5 Million Auto Accident Award Reversed Because Expert Witness Requirement Was Applied Incorrectly

by Sidney Schupak, Esq.

The Nevada Supreme Court recently reversed a lower court’s ruling that awarded a personal injury plaintiff nearly $4.5 million for an auto accident claim. The initial ruling, which was entered by default against the defendant as a sanction for violating several pretrial orders against presenting a low-impact accident defense, will be set aside, and the plaintiff will be required to try the case again or agree to a settlement with the defendant.

The Plaintiff and Defendant Were Involved in an Accident that Appeared Relatively Minor

The case, Rish v. Simao, involved an auto accident that , according to the Nevada Supreme Court’s opinion, occurred in relatively slow-moving, stop-and-go traffic. Although the plaintiff in the case refused medical treatment at the scene of the crash and claimed that he was not injured at the time, serious injuries allegedly developed in the days or weeks following the accident. Some time after the crash occurred, the plaintiff retained counsel and filed a personal injury lawsuit against the defendant, alleging that the defendant’s negligence resulted in serious and ongoing injuries that required significant medical treatment.

The Plaintiff Files a Pretrial Motion to Exclude Specific Defense Testimony

Relying on an interpretation of a prior Nevada case, the plaintiff successfully argued before trial that the defendant should not be permitted to argue that the crash was a low-impact crash, which couldn’t have caused the alleged injuries, without retaining a biomechanical engineer as an expert witness first. Agreeing with the plaintiff and finding that the defendant had not retained such an expert, the judge granted the plaintiff’s motion. The judge also ruled that the defendant would not be permitted to discuss the nature of the accident or show pictures from the accident scene to the jury at trial. This ruling left little room for the defendant to give a defense at trial without such an expert, but the case moved on.

April 4, 2016

Federal Court Seeks Clarification of State Law in Premises Liability Lawsuit

by Sidney Schupak, Esq.

As a general rule, the plaintiff in a personal injury lawsuit has their choice when it comes to the forum that hears the case. One of the choices the plaintiff must make is whether to file the lawsuit in state or federal court. There are many considerations that go into forum selection, but the law that will be applied to the case is one very important factor.

Federal courts are most accustomed to applying federal law. However, in some situations, a federal court will need to apply the law of a certain state in order to resolve the case. This is exactly what happened in a recent premises liability case filed in federal court that arose out of an accident that occurred in Oregon.

Johnson v. Gibson: Is a City Employee an “Owner” of the Public Land He Maintains?

The case arose when the plaintiff stepped in a small hole while jogging in a public park. According to the court’s written opinion, the hole was dug by a city employee, who was charged with maintaining the park. The plaintiff named the city employee who dug the hole, as well as his supervisor, in the lawsuit.

March 25, 2016

West Virginia Court Finds in Favor of Plaintiff in Road Rage Accident Case

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Appeals of West Virginia handed down an opinion in a case that was based on a truck accident caused by another driver’s dangerous and aggressive driving. In the case Phillips v. Stear, the appellate court reversed a jury’s verdict that the plaintiff failed to prove his case. The court did so based on the defendant’s failure to admit that he was recently issued a citation for reckless driving after testifying that he was a safe and cautious driver by nature.

Phillips v. Stear: The Facts

The plaintiff was injured as a result of an accident involving the defendant. According to the court’s written opinion, the plaintiff was cut off by the defendant, who had pulled in front of the plaintiff and slammed on his brakes. The plaintiff lost control and crashed his truck. He sued the defendant, seeking compensation for his injuries.

At trial, the defendant took the witness stand to testify to his own good character and record of safe driving. On cross examination, the plaintiff asked the defendant about a recent reckless driving citation, but the defendant failed to admit to the citation and told the court he “did not recall the event.”

March 18, 2016

Plaintiff Victorious in Uninsured Motorist Claim Insurer, But Awarded Zero Dollars by Jury

by Sidney Schupak, Esq.

Juries are one of, if not the single most, unpredictable variable in any personal injury case. While a skilled attorney will do everything they can to ensure that their client is left with a fair jury, there is no way to read the minds of potential jurors and foresee how they will view certain issues that may come up at trial. It is therefore critically important that personal injury attorneys prepare a solid legal argument on behalf of their client, and also present it in a polished, professional manner.

Jury Awards Plaintiff Zero Dollars in Recent Personal Injury Case

Earlier this month, a Nebraska jury returned a verdict in favor of the plaintiff, but awarded the plaintiff a zero-dollar verdict. In the case, Lowman v. State Farm Mutual Auto Insurance Company, the plaintiff was injured when he was struck by an underinsured motorist. Because the motorist was underinsured, the plaintiff looked to his own insurance carrier to help make up the difference.

State Farm admitted that the underinsured motorist was responsible for the accident, but contested whether the driver’s negligence resulted in the plaintiff’s injuries. Because the plaintiff’s medical bills had already been paid, the only claim she was making was for the pain and suffering she sustained as a result of the accident.

March 11, 2016

Potential Employer Liability in Personal Injury Cases

by Sidney Schupak, Esq.

Many serious auto accidents involve a truck driver or another motorist who is working as a paid driver when the accident occurs. These commercial drivers are held to a high standard when driving, and they are assumed to have the training necessary to be able to safely operate their vehicles in all types of circumstances. Often, when a commercial driver is found to be at fault, it is because they lack the necessary training or support that should have been provided by their employer. In such cases, the driver’s employer may also be held liable by anyone injured as a result of the driver’s negligence.

Employer liability will not automatically be present in all cases involving a paid driver. There must be some act of negligence on the employer’s part. For instance, this could be a failure to train the negligent driver, or a failure to maintain the truck in a safe working condition. It could also result from an employer’s failure to provide the necessary support for the driver. In each of these cases, a court may determine that both the driver and their employer are at fault in the accident.

Court Upholds Employer Liability in Fatal Truck Accident

Earlier this month, a state appellate court issued a written opinion in a case against a trucking company owner. The court determined that the employer was also at fault in the fatal accident, and that the jury’s verdict in the amount of $3 million should be applied against the employer as well as the truck’s driver.

March 4, 2016

Punitive Damages Awards in Injury and Wrongful Death Cases Often Exceed Compensatory Damages

by Sidney Schupak, Esq.

Punitive damages are awards paid to a plaintiff exclusively for the purpose of punishing a defendant above and beyond paying for the financial costs and other harms suffered by the plaintiff. These damages are often awarded to prevent the specific defendant, or others who may be in a similar or analogous position, from repeating the type of behavior that led to the award of punitive damages.

Juries may be given the option to award punitive damages in certain personal injury, wrongful death, and medical malpractice cases when a plaintiff alleges that the defendant committed especially reprehensible behavior in causing the plaintiff’s injuries. For punitive damages to be awarded in these cases, a defendant must have not only been negligent but also behaved in a manner that warrants the additional punishment. These damages are rare but are not unheard of in certain types of cases.

Covering Up Knowledge of a Dangerous Product and Continuing to Market the Product Can Result in Punitive Damages

An example of the types of behaviors that justify punitive damages is illustrated by a recent jury verdict reached against the well-known health care products company Johnson & Johnson. A news article discussing the verdict explains that the jury found that Johnson & Johnson not only marketed a dangerous talc-based powder for women to use as a feminine care product, but also knew there was a high likelihood that the use of such powder on or near a woman’s genitals could result in ovarian cancer. The jury agreed that despite their knowledge of these risks, the company continued to market the product to women.

February 24, 2016

Recent Decision Distinguishes School Buses Used For Athletics from Those Used to Transport Children to and From School

by Sidney Schupak, Esq.

The Supreme Court of the State of North Carolina recently released an interesting decision that reversed a lower state appellate court ruling that had allowed a personal injury claim based on an accident with a school bus to proceed against school administrators. The plaintiff in the case of Irving v. Charlotte-Mecklenburg Board of Education was injured while she was driving a car that was struck by a bus transporting student athletes and staff to a football game. Although the plaintiff’s claim has been rejected on jurisdictional grounds, she may still be entitled to relief through a separate action.

The Plaintiff Is Injured in an Accident with a School Bus Driven by a School Employee and Makes a Claim for Damages

In October 2007, the plaintiff’s car was struck by a school activity bus that was transporting student athletes and staff to a football game. The bus was being driven by an employee of the board of education, the defendant in this case. Rather than filing an accident lawsuit in state court, the plaintiff attempted to follow the procedures to sue a school district over a bus driver’s negligence, and she filed a claim against the defendant with the North Carolina Industrial Commission. The plaintiff made an administrative claim with the Industrial Commission because North Carolina law requires claims against allegedly negligent public school bus drivers to be pursued in this manner.

The School Board Argues the Bus Was a “School Activity Bus,” not a “Public School Bus”

When the case reached the Industrial Commission, the defendant argued there was no jurisdiction for the Commission to hear the claim. The defendant contended that the state law distinguishes between negligence claims involving “public school buses” (which must be filed before the commission) and claims involving “school activity buses” (which may be filed in state court). The district court and state supreme court agreed with the defendant, finding that the Industrial Commission was only the proper venue for claims involving public school buses that take students to and from school during regular school hours. Although the plaintiff will not obtain relief through her action filed with the Industrial Commission, she may be able to refile the claim in district court.

February 17, 2016

State Supreme Court Reverses Dismissal of Widow’s Wrongful Death Lawsuit Against Department of Transportation

by Sidney Schupak, Esq.

In a decision recently released by the Supreme Court of Iowa, the dismissal of a woman’s wrongful death lawsuit against the state was reversed. The plaintiff in the case of McFadden v. Iowa Department of Transportation alleged that her husband was killed in a crash while driving his motorcycle on a state road that had not been maintained to an adequate standard. She also claimed that the Department of Transportation’s negligence in failing to maintain the road should result in the state government’s liability for his wrongful death.

The Plaintiff’s Husband Dies in a Tragic Accident

The accident that resulted in the filing of the lawsuit occurred on April 25, 2012 in Warren County, Iowa. According to the initial complaint, the man was driving his motorcycle on the highway when he encountered unsafe road conditions while negotiating a curve. The plaintiff claims that her husband was then forced to drive onto the shoulder, where a steep drop off between the roadway and the shoulder caused him to lose control of his motorcycle, after which he was killed. After her husband’s death, the woman sued the Department of Transportation for negligence and wrongful death for failing to maintain the road to a safe standard.

The Trial Court Rejected Her Claim as Improperly Filed, But the State Supreme Court Disagreed

Since the plaintiff was making a claim against a state agency, she was required to follow strict procedures that the legislature established for victims of governmental negligence to collect damages from the state. Generally, the same rules of liability do not apply to governments and their subdivisions as to members of the public, since governments have traditionally been immune from negligence lawsuits under a legal doctrine known as “sovereign immunity.” Iowa passed laws limiting the state’s sovereign immunity but enacted strict procedures that must be followed for a plaintiff to have an injury or wrongful death case heard by the court.

February 10, 2016

Courts Affirm Verdict Against Plaintiff in Traction-Control Lawsuit Against Automaker

by Sidney Schupak, Esq.

The Supreme Court of California recently released a ruling that affirmed a verdict for the defendant in a lawsuit filed against a vehicle manufacturer that had not included electronic traction control on a standard model truck that was being driven by the plaintiff when he was involved in a crash. The plaintiff in the case of Kim v. Toyota Motors was in a crash, and he claimed that it would have been prevented by an electronic traction control (or ESC) system that was included on more expensive models of Toyota trucks but not the standard model involved in the accident. The plaintiff argued that the manufacturer’s failure to include the option on the truck he was driving constituted a design defect, and he requested damages as a result.

The Plaintiff’s Allegation that ESC Would Have Prevented His Injuries

In April 2010, the plaintiff was driving a 2005 Toyota Tundra on a two-way road in California when he claims that he was forced to drive into the gravel median to avoid crashing into an oncoming driver who had entered his lane. According to the Court’s recitation of the facts, the plaintiff lost traction and oversteered the vehicle after entering the gravel median, eventually losing control and rolling the vehicle into an embankment. The plaintiff suffered serious injuries in the crash.

While presenting the case, the plaintiff argued that Toyota was able to include traction control on the vehicle involved, and if there were a traction control system included on his vehicle, he would have avoided the accident and injuries that were suffered.