Dangerous Products

January 22, 2019

The “Duty” Element of a Virginia Personal Injury Case

When someone is injured due to the alleged negligence of another, the injured party may be able to pursue a claim for compensation under the legal theory of negligence. To succeed in a negligence claim, a plaintiff must be able to establish four elements: duty, breach, causation, and damages.

The “duty” element is easily met in many Virginia personal injury cases, especially those involving injuries that occurred as a result of a car accident. This is because all Virginia motorists have a general duty to safely operate their vehicle within the confines of the law. However, in other contexts, a plaintiff must present evidence establishing that the defendant owed the plaintiff a duty of care.

A recent federal appellate opinion illustrates the concept of a legal duty. In that case, the plaintiff was a truck driver who was injured when another employee allegedly ran over his foot while loading the plaintiff’s truck with a forklift. The forklift, which was owned by the plaintiff’s employer, did not have a back-up alarm. The plaintiff’s employer had contracted with the defendant maintenance company to perform all necessary maintenance on the machine, including preventative maintenance.

December 11, 2018

Court Determines Plaintiff’s Misuse of Product Precludes Subsequent Product Liability Lawsuit

by Sidney Schupak, Esq.

When someone is injured by a dangerous or defective product, they may be entitled to monetary compensation through a Virginia product liability lawsuit. Virginia product liability cases can be complex, as there are several different types of claims that can be brought. In a recent product liability case, the court discussed how a plaintiff’s incorrect use of the product that caused their injury can defeat a plaintiff’s claim.

The Factual Scenario

Per the court’s recitation of the facts, the plaintiff owned a product called a die-grinder that the defendant manufactured. The grinder came with an instruction manual, describing how to safely use the tool. The manual warned users to always wear safety glasses when using the tool and to only use attachments that were rated above 25,000 RPM (revolutions per minute). The manual also warned users to only use the cut-off attachment if a safety shield was installed on the tool. The tool wasn’t equipped with a safety shield, and nowhere in the manual did the manufacturer inform users where to obtain a safety shield.

The plaintiff was assisting a friend with a project that required the use of the grinder’s cut-off wheel attachment. The plaintiff attached a cut-off wheel that was rated at only 19,000 RPM to the tool, which was not equipped with a safety shield. The plaintiff was wearing prescription glasses at the time, which he thought to be sufficient protection.

September 7, 2018

Virginia Product Liability Cases

by Sidney Schupak, Esq.

Product manufactures are required to ensure that the products they release to market are safe for their intended use. This means that when someone is injured due to a dangerous or defective product, they may be entitled to monetary compensation through a Virginia product liability lawsuit.

There are three basic theories under which a Virginia product liability claim can be filed: design defect, manufacturing defect, and failure-to-warn. In some cases, all three claims can be made. The first two types of claims are fairly self-explanatory. However, failure-to-warn claims are a little more complicated. A recent federal appellate case discusses the plaintiff’s failure-to-warn claim against a crane manufacturer.

The Facts of the Case

The plaintiff was a crane operator working on a job that required he move the bow of a large boat. In order to move the bow, the plaintiff worked with two other operators to perform a tandem lift, where the three cranes would work together to move the bow. Initially, the move went according to plan; however, mid-way through the lift the plaintiff’s crane shifted out of place.

August 31, 2018

Court Discusses Whether Employer’s Insurance Company Was Liable for Damages Caused by Employee’s Drunk-Driving Accident

by Sidney Schupak, Esq.

The determination of whether an insurance company is responsible to defend the at-fault party in a Virginia car accident case is often a critical issue because the at-fault party frequently will not have sufficient assets to fully compensate the plaintiff for the injuries they have sustained. In the event that an accident is covered under an insurance policy, the insurance company will cover the costs of the accident, meaning that the plaintiff will more likely be able to collect should the case be resolved in their favor.

Recently, a state appellate court issued an opinion in a personal injury case raising an important insurance issue that frequently arises in Virginia car accident cases. The case required the court to determine if an employer’s insurance policy covered an accident caused by an intoxicated employee.

The Facts of the Case

The defendant was traveling for work when he caused a traffic accident that injured the plaintiff. At the time of the accident, the defendant was driving a company owned vehicle, although he was not on the clock at the time and was not performing any work-related activity. It was later determined that the defendant was intoxicated.

June 11, 2018

Court Finds Plaintiff’s Theory of Causation Was Sufficient in Case Involving Carbon Monoxide Poisoning

by Sidney Schupak, Esq.

In many Virginia personal injury cases, the most contested element is that of causation. Essentially, to establish causation, a plaintiff must be able to show that their injuries were a legal and proximate result of the defendant’s negligent actions. While this may sound like it would be a straightforward determination, in reality, issues of causation are often quite complex.

A recent opinion issued by a state appellate court illustrates how courts interpret causation challenges to a plaintiff’s case. The case involved a used-car dealer that allegedly sold the plaintiffs a car without a muffler.

The Facts of the Case

The plaintiffs purchased a used car with 180,000 miles for $1,500 from the defendant dealership. While the plaintiffs were made aware of some of the car’s mechanical issues, at no point were the plaintiffs told that the car was being sold without a muffler.

April 18, 2018

Court Rejects Plaintiff’s Product Liability Case After Finding Warnings Were Adequate

by Sidney Schupak, Esq.

Recently, a federal appellate court issued a written opinion in a personal injury case dealing with the admissibility of expert testimony in a product liability lawsuit. Ultimately, the court concluded that since the plaintiff’s expert’s testimony was not admissible, she was unable to prove her failure-to-warn claim. The court then rejected the plaintiff’s defective design case based on the fact that the manufacturer’s warnings were found to be sufficient.

The case is important for Virginia boat accident victims because it illustrates the importance of expert witness testimony in establishing liability.

The Facts of the Case

The plaintiff was injured when she fell off the back of a personal watercraft (PWC). At the time of her injuries, the plaintiff was riding as the fourth passenger on the machine, was wearing only a bikini, and had consumed alcohol prior to boarding the watercraft. It was undisputed that the plaintiff was not in compliance with the warnings contained on the machine, but the plaintiff filed a personal injury lawsuit, claiming that the warnings were defective.

April 11, 2018

Virginia Court Rejects Product Liability Case Based on Plaintiff’s Failure to Establish Defective Design

by Sidney Schupak, Esq.

A Virginia appellate court recently issued a written opinion in a Virginia product liability case discussing a plaintiff’s burden in establishing a defective design claim. Ultimately, the court concluded that the plaintiff’s claim was insufficient as a matter of law, and it dismissed the case.

The Facts of the Case

The plaintiff worked at a factory. He was trained on a folder-gluing machine, and to earn some extra money, he cross-trained on another vehicle that was similar to a forklift. While the plaintiff completed some of the training to operate the forklift, he did not obtain certification to use the vehicle.

One day, the factory was especially busy, and the plaintiff’s supervisor asked him to operate the forklift. The plaintiff agreed and began unloading boxes of paper from a trailer. In order to do this, the plaintiff had to drive the forklift up a ramp and into the trailer. During one of the trips, the forklift got caught between the ramp and the trailer.

January 3, 2018

Virginia Product Liability Claims

by Sidney Schupak, Esq.

When a consumer purchases a product, they expect not only that the product will function as it is supposed to function, but also that it will be safe and free from potentially harmful or dangerous defects. However, history has shown that not all products are safely designed or manufactured, and sometimes a product will be damaged in transit, making it unreasonably dangerous even when used for its intended purpose. In these situations, anyone who is injured as a result of the use of the product may be able to purse a claim for compensation through a Virginia product liability claim.

In Virginia, there are several types of product liability claims that can be brought against a number of parties. For example, a claim may be brought based on the defective design of a product, the negligent manufacturing of a product, or a company’s failure to warn the consumer about a known defect. As a general rule, a Virginia product liability claim can be brought against any person or business in the product’s chain of commerce, from the manufacturer to the retailer.

A recent case illustrates the trend toward holding all actors in the chain of commerce responsible for the safety of a product.

July 11, 2017

Evidence of “Other Similar Incidents” in Product Liability Lawsuits

by Sidney Schupak, Esq.

When someone is injured while using any kind of product, they may be able to seek compensation for their injuries through a product liability lawsuit filed against the manufacturer, distributor, or retailer of the product. In many cases, these lawsuits do not require that a plaintiff establish that the named defendants knew about the alleged defect; however, additional damages may be available if a plaintiff is able to prove that the defendant knew about the defect and failed to correct it.

One key issue in many product liability cases is the availability and admissibility of “other similar incident” evidence, or OSI evidence. OSI evidence is important for product liability plaintiffs to understand, and it can be very persuasive because it may show that a defendant manufacturer should have known about the alleged defect, based on the other reported incidents. However, courts are careful about admitting OSI evidence because it may complicate matters for the jury and can result in undue prejudice. A recent case illustrates how plaintiffs in a recent car accident case were able to admit OSI evidence.

The Facts of the Case

The plaintiffs were stopped at a red light on a highway off-ramp when they were rear-ended by another motorist who was driving a 1996 Toyota Camry. The Camry was traveling at approximately 75 miles per hour when it rear-ended the plaintiffs. Two of the five plaintiffs in the vehicle were killed as a result of the accident, one sustained a traumatic brain injury, one was left a paraplegic, and the final plaintiff suffered a broken leg.

June 2, 2017

Court Determines a Plaintiff’s Alleged Negligence Is Not Relevant in Crashworthiness Case

by Sidney Schupak, Esq.

Virginia courts apply the doctrine of contributory negligence when determining which parties will be able to seek damages following an accident. Under the doctrine of contributory negligence, an accident victim’s negligence can completely bar their ability to receive compensation for their injuries. This is even the case if the plaintiff is just 5% responsible for the accident.

Whether an accident victim is considered “at fault” is usually a matter for the jury to determine. However, a recent case out of South Carolina held that a plaintiff’s potential negligence is not relevant to cases claiming that a vehicle was not safely designed to withstand the force of an accident.

The Facts of the Case

The plaintiff was a passenger in a Chevy Pick-up truck being driven by a friend. The two had been smoking synthetic marijuana and were driving on the highway when the driver ran a stop sign. As the pick-up truck entered the intersection, it was struck by another vehicle that had the right-of-way.