Personal Injury Law

April 4, 2017

Virginia Appellate Court Discusses “Last Clear Chance” Doctrine and Contributory Negligence

Earlier this month, the Supreme Court of Virginia issued a written opinion in an interesting case brought by the surviving family of a man who was killed by a train. The case required the court to discuss the “last clear chance” doctrine and its applicability to cases in which both the accident victim and the defendant may have been negligent. Ultimately, given the specific facts of the case, the court determined that the plaintiff’s case should proceed to trial.

The Facts of the Case

The plaintiff’s husband was killed as he was walking next to a set of railroad tracks. According to the court’s opinion, the plaintiff’s husband was walking next to the tracks, listening to music on his phone, when a train approached. Evidently, the plaintiff’s husband was unable to hear the approaching train due to the music, and as the train passed him, a part of the train that overhung past the tracks struck the plaintiff’s husband. He was killed instantly.

The plaintiff filed a wrongful death lawsuit against the company that owned the train, as well as the conductor and engineer. She claimed that, notwithstanding any possible negligence of her deceased husband, the defendants were the one with the last opportunity to avoid the collision, but they failed to do so. The trial court disagreed with the plaintiff’s argument and granted summary judgment in favor of the defendants.

March 27, 2017

The Importance of Medical Experts in Virginia Medical Malpractice Cases

by Sidney Schupak, Esq.

Medical malpractice cases are some of the most complex and confusing types of personal injury cases. In fact, most medical malpractice cases require an understanding of the medical field beyond what most lawyers and judges possess. For this reason, Virginia lawmakers have implemented a requirement that all medical malpractice plaintiffs present a qualified expert to help explain to the judge and jury how the defendant’s actions fell below the required standard of care and also how those actions resulted in the plaintiff’s injuries.

The selection of medical experts in a medical malpractice case is an extremely important decision that can have an enormous effect on the outcome of the case. For example, if a witness is not properly qualified, or does not offer an opinion that is based upon acceptable and recognized practices of the profession, the expert’s opinion may be open to attack by the defense.

A recent opinion illustrates the problems one medical malpractice plaintiff encountered when a court determined that the experts he presented failed to establish that the defendant’s actions were responsible for his injuries.

March 13, 2017

What to Do When an Insurance Company Denies Your Accident Claim

by Sidney Schupak, Esq.

All Virginia drivers are responsible for carrying a certain amount of auto insurance for their vehicle in case they are in an accident that results in bodily injury or property damage. Drivers must also have insurance coverage in the event that an uninsured or underinsured motorist causes a collision. However, having the necessary insurance coverage does not guarantee that the insurance company will settle any claim made against the policy. In fact, in too many cases insurance companies will deny coverage for medical treatment that was received in the immediate aftermath of a serious accident.

A recent case in front of a state appellate court illustrates one woman’s journey in getting an insurance company to cover the costs of the treatment she received in the hours after a car accident, caused by an uninsured motorist.

The Facts of the Case

The plaintiff in the case was a passenger in her mother’s car when it was struck by another driver who had run a stop sign. The plaintiff was transported to the hospital via ambulance and admitted to the emergency room. Once she was seen in the emergency room, she was then sent to the trauma center. She was discharged later that day with a cervical collar.

March 6, 2017

Court Determines School’s Efforts to Melt Snow in Parking Lot Did Not Increase the Chance of Student’s Slip-and-Fall Accident

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued an opinion in a premises liability case that required the court to determine if a school could be held liable in a case in which a student slipped and fell on a patch of ice that formed after the school applied snow-melt in the immediate area. Ultimately, the court concluded that while the school’s actions did alter the natural state of the snow on its property, there was no evidence suggesting that the school’s actions increased the risk of an accident. Thus, the case against the school was dismissed.

A Student Playing on an Ice Patch Slips and Falls

A student at the defendant middle school was playing on a patch of ice with some friends when he fell, chipping a tooth and fracturing his nose. The boy’s parents filed a premises liability lawsuit against the school, arguing that the school should be held liable for his injuries because it negligently allowed the ice patch to form.

The school moved for summary judgment, explaining that the snow or ice is cleared by school employees each morning. Evidence also showed that school employees applied snow-melt to the parking lot in order to get the snow and ice in the parking lot to melt. The school argued that it should not be held liable for the natural accumulation of snow or ice on the property.

February 8, 2017

Supreme Court of Virginia Upholds Jury’s Zero-Dollar Verdict in Car Accident Case

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Virginia issued an opinion in a car accident case showing the importance of keeping thorough records in the wake of a car accident. The case involved a plaintiff who was injured in a minor car accident that the defendant admitted he caused. However, since the plaintiff was unable to present sufficient proof that her injuries were caused by the accident, she received no compensation.

The Facts of the Case

The plaintiff was stopped at a red light when she heard “something boom.” She looked up to notice that he car was creeping into the intersection. She was wearing her seatbelt at the time and applied her foot to the brake immediately, stopping the car before it entered the intersection. At no time did the plaintiff’s body come into contact with the steering wheel or dashboard. However, she “tensed up” upon impact.

After the accident, the plaintiff did not notice any bruising, cuts, or scrapes but requested to be taken to the hospital. At the hospital, she was seen and then shortly afterward released. The plaintiff claims to have gone to her primary care doctor’s office twice, complaining of pain in her shoulder and back, shortly after the accident, but she was unable to present proof of these visits. Ten months after the accident, she went to an orthopedic center, and she was diagnosed with a “partial tear around her bicep tendon and a labral tear.” Surgery was recommended and subsequently performed.

February 1, 2017

Hotel Chain May Be Liable for Punitive Damages after Shower Door “Explodes”

by Sidney Schupak, Esq.

Earlier this month, a federal appellate court issued a written opinion in a premises liability case that reversed a lower court’s determination that the plaintiff was not entitled to punitive damages as a matter of law. The court concluded that, given the facts presented in the plaintiff’s claim, a jury – rather than the judge – should determine whether punitive damages are appropriate.

Punitive Damages Generally

Unlike other types of damages that are designed to return the plaintiff to the position in which they were before being involved in an accident, punitive damages are designed to punish a defendant’s undesirable behavior. Additionally, punitive damages are used by courts to deter other would-be defendants from engaging in the type of conduct that may give rise to this type of award.

A Shower Door Explodes, Injuring a Guest

In the recent case mentioned above, the plaintiff was a woman who was a guest at the defendant hotel. During her stay, the plaintiff was exiting the shower when the shower door “exploded,” causing the broken glass from the door to severely cut her body.

January 17, 2017

The Importance of Fair Jury Instructions in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

An attorney’s job does not stop at presenting his client’s case to the jury. In fact, perhaps one of the most important aspects of an advocate’s role in a Virginia personal injury case is creating the landscape in which his client’s case is viewed by the jury. This landscape is formed in a number of ways, from pre-trial motions determining which evidence is admissible to the instructions that the judge provides to the jury before sending it back to deliberate.

What Are Jury Instructions?

In a Virginia personal injury case, after all of the evidence has been presented by both sides, the judge will provide the jury with a set of instructions, summing up the relevant law that is applicable to the case. These instructions not only guide the jury in the decisions that it must make but can also clarify confusing legal issues or terms. Thus, it is very important that fair jury instructions are provided to a jury before it is sent off to make its determination. A recent case illustrates how important fair jury instructions can be.

Long v. Arnold

Long was involved in a minor car accident when the defendant pulled out in front of her, requiring she steer her car off the side of the road. Long was only traveling at about 10 miles per hour at the time, and when her car left the roadway, it slowly came to a complete stop as it came into contact with some roadside brush.

January 10, 2017

Appellate Court Discusses the Foreseeability Element in Recent Car Accident Case

by Sidney Schupak, Esq.

Before a personal injury case is submitted to a jury for the ultimate determination of whether the defendant should be held legally and financially responsible for the plaintiff’s injuries, a judge must first determine that each of the plaintiff’s claims meet the necessary elements. If a judge determines that one or more of the plaintiff’s claims fail to meet the elements of that claim, the judge will dismiss the insufficient claims and allow only the legally sufficient claims to proceed.

In a recent case in front of a New York appellate court, the court discussed the foreseeability element that is present in most personal injury cases.

Hain v. Jamison: The Facts

Hain was driving on a rural road late in the evening when she saw a calf that had escaped from its home and was standing in the road. Hain safely pulled over to the side of the road, exited her vehicle, and proceeded to approach the calf and help it off the road. As she was assisting the calf, another motorist came by and struck Hain, tragically killing her.

December 7, 2016

Plaintiff’s Bad-Faith Insurance Claim Allowed to Proceed after Dismissal Is Reversed on Appeal

by Sidney Schupak, Esq.

Earlier this month, a federal appellate court issued an opinion that reversed a lower court’s holding that dismissed a plaintiff’s bad-faith claim against her own insurance company. In the case, Peden v. State Farm, the court determined that the insurance company’s failure to conduct a thorough investigation before denying the plaintiff’s claim potentially could give rise to a bad-faith claim. Since the lower court dismissed the plaintiff’s claim, claiming it was insufficient as a matter of law, the appellate court reversed the decision, allowing the plaintiff’s case to proceed toward trial or a settlement.

The Facts of the Case

The plaintiff, Peden, was with a group celebrating a friend’s birthday. Her friend had received a new van for her birthday from her fiancé, Mr. Graf. At some point in the evening, the group piled into the new van for a photo. By this point, most of the group, including Graf, was intoxicated. Once the group was in the van, Graf hopped into the driver’s seat and took the van for a cruise.

Graf crashed the van while driving under the influence, injuring several inside, including Peden. Both Peden and Graf were insured by State Farm. Peden initially filed a claim with Graf’s insurance. However, since the total policy limit had to be split among all injured parties, the amount Peden received was insufficient to cover her damages. She decided to file a claim under her own insurance policy to recoup the difference.

November 9, 2016

Court Holds Plaintiff’s Injury While Boarding Casino Shuttle Results in Viable Lawsuit Against Casino

by Sidney Schupak, Esq.

Earlier this month, a California appellate court issued a written opinion in a case involving a plaintiff who was injured as she boarded a casino shuttle bus. While the woman’s injuries were caused by a fall precipitated by other passengers, the court determined that the casino had a duty to ensure the safe boarding of the shuttle. In so holding, the court reversed a lower court’s decision to dismiss the woman’s case.

Huang v. The Bicycle Casino: The Facts

The Bicycle Casino operates a shuttle to pick up gamers who do not have other transportation to get to the casino. The shuttle operated throughout Los Angeles and traveled on a fixed path with several stops along the way. Since the shuttle ran just once an hour, some of the more popular stops would have many people waiting for the shuttle. The shuttle could hold only about 45 people.

The casino would occasionally bring along a second employee, along with the driver, to ensure that passengers would board in an orderly fashion. However, on the day in question, the driver was alone. As the driver approached the stop where Huang was waiting, the crowd of people surged toward the shuttle.