Personal Injury Law

November 3, 2016

Plaintiff’s Personal Injury Lawsuit Permitted to Proceed Despite Signed Arbitration Agreement

Earlier this month, one state’s appellate court issued a written opinion in a case brought by the parents of a young boy who was injured while participating in the defendant’s trampoline park. In the case, Alicea v. Activelaf, the court allowed the plaintiff’s lawsuit against the defendant to proceed toward trial despite the fact that the plaintiff signed an agreement to arbitrate any claims against the defendant.

The Facts

The Aliceas were planning on taking their two young boys to the defendant’s trampoline park. Prior to being admitted into the park, the Aliceas were required to sign a “Participant Agreement, Release and Assumption of Risk.” The online form contained three large blocks of text with check boxes next to each. The form required checks in all three boxes, the names and dates of birth of all participating children, and a signature at the bottom. The form contained several clauses; relevant to this case was an arbitration clause that purported to waive any right that the participant had to file a case against the defendant in a court of law. Instead, all claims would be settled by arbitration. There was also a clause stating that a $5,000 fee would be imposed if a case was filed against the defendant in a court of law. Ms. Alicea checked all three boxes on the form, signed it, and submitted it electronically.

October 25, 2016

Man Injured on Construction Site by Falling Scaffolding, Defendant Allegedly Destroyed Evidence

by Sidney Schupak, Esq.

Earlier this month, a federal court of appeals issued an opinion in a product liability case involving an employee who was injured while on the job by a piece of falling scaffolding. In the case, Schaefer v. Universal Scaffolding, the court had to decide what to do with the plaintiff’s claim that the defendant intentionally lost or destroyed the very piece of scaffolding that caused his injuries. Ultimately, the court upheld the plaintiff’s right to seek compensation for his injuries by holding that the lower court applied an improper standard when dismissing the plaintiff’s case.

The Facts

Schaefer was employed by Brand Energy, a construction company. Brand Energy was contracted by Dynery to complete work on a power plant. Universal Scaffolding manufactured the scaffolding that Brand Energy used on the job, but Dynergy purchased the scaffolding. Employees of Brand had difficulty assembling the scaffolding because it kept coming apart at the joints. Schaefer was walking below some of the scaffolding when he was struck on the head by a piece that had come loose. He filed a product liability claim against Universal Scaffolding, as well as related claims against Brand Energy and Dynergy. Relevant to this discussion is Schaefer’s claim against Universal Scaffolding.

Before trial, Universal Scaffolding told Schaefer and his attorneys that they no longer had the piece of scaffolding that had fallen and allegedly caused his injuries. Schaefer asked the court to impose sanctions against Universal Scaffolding for failing to preserve the material and relevant evidence. However, the trial court determined that, although Schaefer could not succeed without the evidence, he did not show that he would have succeeded at trial with the evidence, and the case was dismissed.

October 12, 2016

What Happens When an Insurance Company Acts in Bad Faith and Refuses to Settle a Case?

by Sidney Schupak, Esq.

Motorists in Virginia are required to carry a certain amount of auto insurance in order to legally operate a vehicle on any public road. In theory, this prevents an uninsured motorist from causing an accident that results in medical bills that he or she cannot pay. However, insurance companies are for-profit enterprises that may not always have the accident victim’s best interests in mind. As a result, Virginia law allows an accident victim to pursue a bad-faith claim against an insurance company that refuses to settle a claim without a good reason.

Virginia Bad-Faith Claims

In Virginia, the applicable statute that governs bad-faith insurance claims is Va. Code § 8.01-66.1. The statute explains that an insurance company that fails to settle a claim out of bad faith can be ordered by a court to pay the accident victim any amount due, plus interest, as well as a reasonable fee for attorney’s fees and other expenses. In some cases, an insurance company that refuses to settle in bad faith may become liable for amounts above and beyond those outlined in the insurance policy. Importantly, the burden is on the accident victim to prove that the insurance company acted in bad faith.

A Recent Example of Alleged Bad Faith

In the case, Holloway v. Direct General Insurance Company, the plaintiff was injured in a low-speed auto accident occurring in a parking lot. The facts leading up to the accident were in dispute. Holloway, the plaintiff, claimed that the accident was Sykes’ fault, and Sykes, who was insured by the defendant insurance company, claimed that the accident was Holloway’s fault.

September 27, 2016

Family’s Product Liability Lawsuit Against Smoke Detector Manufacturer Dismissed for Failure to Present Necessary Evidence

by Sidney Schupak, Esq.

Proving a product liability lawsuit against the manufacturer of a dangerous product is not always as easy as explaining how a product caused an injury. For example, depending on the type of claim being asserted, a plaintiff may need to present actual evidence that the product was defective, was poorly designed, or presented an unreasonable risk of injury. In fact, all personal injury cases have certain elements that must be proven. If a party fails to provide evidence tending to prove each of the elements of their claim, the judge must dismiss the case upon the defendant’s motion. This is exactly what happened to one family’s product liability case against a smoke detector manufacturer.

Hosford v. BRK Brands, Inc.

The plaintiffs were the surviving family members of a young girl who died when her family’s mobile home caught fire. According to the court’s written opinion, the girl’s parents had installed two of the defendant’s smoke detectors in the mobile home. On the night of the tragedy, an electrical malfunction started a slow smoldering fire in the mobile home. The girl’s parents awoke to one of the smoke detectors, but the fire had already overtaken the home, and it was too late for them to save their daughter.

The family filed a product liability lawsuit against the manufacturer of the smoke detectors. The plaintiffs made several claims, the most relevant of which claimed that the smoke alarms were defective at detecting the slow smoldering fire and did not go off with enough time to allow them to safely evacuate their home. After a trial, the jury determined that the manufacturer was not liable, and the plaintiff appealed.

September 20, 2016

Good Samaritan Laws and How They Can Affect a Personal Injury Lawsuit

by Sidney Schupak, Esq.

Most personal injury lawsuits are based on the theory of negligence. In essence, these lawsuits claim that one party, the defendant, is liable to another party, the plaintiff, as a result of some kind of negligent act or failure to act on the part of the defendant. In order to prove a negligence lawsuit, a plaintiff must show that the defendant owed the plaintiff a duty that was violated by the defendant’s actions.

Good Samaritan laws act to limit the liability of those who happen across an emergency and try to help but end up causing more harm in the process. The idea behind these laws is that the government wants to encourage people to help others in peril, so immunity from civil liability is given to those who try to help, even if their attempts end up causing additional injuries. However, there are limits to Good Samaritan laws. Generally, Good Samaritan laws do not apply if the actor was grossly negligent or reckless in providing the care. Another issue that may come up is exactly which conduct is covered under a Good Samaritan law. A recent case looks at one example of how a Good Samaritan law may affect a plaintiff’s right to recover compensation.

Carter v. Reese: A Truck Rolls Backwards, Crushing a Man’s Leg

Carter, a truck driver, slipped and fell after unloading his rig. His leg became stuck in the gap, and he was unable to free himself, so he called out for help. Reese heard Carter’s cries for help and came to assist. Carter told Reese to get into the truck and put it in drive so that he could get his leg free. Carter told Reese to be sure not to put the truck in reverse.

August 4, 2016

Court Determines Parking Lot Placed Across Dangerous Street May Give Rise to Landowner Liability

by Sidney Schupak, Esq.

Businesses and other property owners owe a duty to those whom they invite onto their premises to keep and maintain a safe property. The level of care owed to a visitor depends in part on the relationship between the landowner and the guest. For example, a customer of a business is owed a more substantial duty than an unknown trespasser.

This duty is in place irrespective of the type of property, meaning that private property owners owe a duty, just as does the government, and so do non-profit organizations. In a recent case in front of a California appellate court, the court had an opportunity to discuss how far liability can extend in premises liability cases alleging that the landowner was negligent in the placement of a parking lot.

Vasilenko v. Grace Family Church: The Facts

Grace Family Church was located on a busy five-lane highway. Since the church’s parking lot would often fill up, the church arranged to use another parking lot across the highway when the primary lot filled. While parking attendants were present in both lots to direct traffic, there was no one available to assist churchgoers in crossing the busy five-lane highway to get back to the church from the parking lot.

July 27, 2016

Appellate Court Extends Liability in Car Accident Case to Adult Who Knowingly Allowed Minors to Consume Alcohol on Her Watch

by Sidney Schupak, Esq.

Earlier this month, a Maryland appellate court issued a landmark decision involving how far liability can extend in a case in which an adult knowingly allows a minor to consume alcohol, which later contributes to a fatal accident. In the case of Kiriakos v. Phillips, the court held that any adult who knowingly allows minors to consume alcohol may be held liable in a negligence action for any injuries sustained related to the minor’s consumption of alcohol.

The Facts of the Case

Kiriakos v. Phillips was actually two cases consolidated on appeal because they presented very similar issues. The companion case, Dankos v. Stapf, illuminates the issue presented to the court in a simple manner. Dankos was at a friend’s house drinking. When Stapf, the friend’s mother, came home, she asked some friends to leave but allowed a number of them to stay. Several of the friends who were permitted to stay were underage. The teens were drinking in the garage while Stapf was in the kitchen. The evidence presented at trial indicated that Stapf knew they were drinking, went to check on them several times, and even declined to do anything after her daughter expressed concern that several of the teens might be driving in their intoxicated condition.

On the next morning, while still intoxicated from the night before, Dankos and a friend left the Stapf house and were tragically involved in an accident. Dankos was killed in the accident, and his parents filed a negligence lawsuit against Stapf, arguing that her negligence contributed to their son’s death.

July 6, 2016

West Virginia Supreme Court Reverses Lower Decision Granting Accident Plaintiff a New Trial

by Sidney Schupak, Esq.

The Supreme Court of Appeals of West Virginia recently released an opinion overruling a lower court’s decision granting a rear-end accident plaintiff a new trial on the issue of a knee injury that he had allegedly suffered as a result of the defendant’s negligence. The plaintiff had been awarded a jury verdict for some of the injuries he suffered in the accident, although the jury declined to attribute his knee injury to the crash, instead appearing to accept the defendant’s argument that the knee injury was the result of a previously existing condition unrelated to the accident. As a result of the state high court’s ruling vacating the new trial order, the plaintiff will be unable to receive compensation for his claim for damages resulting from the knee injury.

The Defendant Admitted Fault for the Accident that Injured the Plaintiff

The plaintiff in the case of Harnish v. Corra was struck from behind by a vehicle driven by the defendant as he waited to turn into his place of employment. According to the facts discussed in the recent appellate opinion, the plaintiff alleged to have suffered injuries to his neck, back, and knee in the collision. The defendant admitted he was at fault for the crash, but after the plaintiff filed a personal injury claim against him, the defendant denied that the plaintiff’s alleged knee injuries were caused by the accident.

Evidence at Trial Showed a Dispute as to the Cause of the Plaintiff’s Knee Injury

At a trial on the plaintiff’s personal injury claim, the plaintiff presented the testimony of the doctor who performed a knee surgery after the accident. The plaintiff’s expert opined that his knee injury was the result of a condition that was aggravated by the car accident. In response, the defendant called a medical expert to testify that the plaintiff’s knee injury was caused by long-term wear and tear, and it was not directly related to the accident. After the close of evidence, the jury awarded the plaintiff damages for his neck and back injuries but declined to award any damages based on his knee injury. The plaintiff then requested a new trial, arguing that the jury’s verdict was unsupported by the evidence that the car accident aggravated his knee condition, whether it existed before the crash or not. The trial court granted the plaintiff a new trial.

June 6, 2016

Bar Owner Held Not Liable for Parking Lot Accident After Kicking At-Fault Driver Out of Bar

by Sidney Schupak, Esq.

Earlier this month, the Nebraska Supreme Court issued a written opinion in a premises liability case that highlights the importance of one of the key elements in almost every personal injury case. In the case, Pittman v. Rivera, the plaintiff was injured when he was struck by a car driven by a man who was very recently kicked out of the defendant’s bar. The court ultimately ruled in favor of the defendant, finding that it was not reasonably foreseeable that the at-fault driver would go on to cause an accident after being denied re-admittance to the establishment.

Pittman v. Rivera: The Facts

Rivera was kicked out of the defendant’s bar after he became aggressive with his girlfriend, an employee of the establishment. After Rivera was escorted out, a friend acted as a designated driver and took Rivera home. However, a few hours later, Rivera returned and tried to get back into the bar to speak with his girlfriend. The bar’s bouncer did not let Rivera in. Rivera then angrily got into his car, revved his engine loudly, and began driving around the bar’s parking lot in a reckless manner.

Pittman was also in the defendant’s bar that evening. At some point in the evening, Pittman stepped outside to speak with a few friends. As he stood in the bar’s parking lot, Rivera came whizzing around after making a series of U-turns and struck Pittman. As a result of the collision, Pittman suffered serious injuries and filed this lawsuit against the bar.

May 23, 2016

Product Liability Lawsuit Against Under-Ride Guard Manufacturer Results in Million-Dollar Verdict

by Sidney Schupak, Esq.

Earlier this month, the United States Court of Appeals for the First Circuit issued an opinion affirming a product liability plaintiff’s jury verdict in the amount of $1,200,000. In the case, Quilez-Velar v. Ox Bodies, Inc., the court determined that the lower court properly admitted the plaintiff’s expert witness testimony and that the jury’s verdict should stand.

The Facts of the Case

The plaintiffs in the case were the surviving family members of a woman who was killed when her car slid under a garbage truck that had not been properly fitted with a safe under-ride guard, which was supposed to prevent vehicles from sliding under the rear of the truck in the event of this type of accident. The evidence at trial showed that the truck was owned and operated by the local government, but the under-ride guard was manufactured by the defendant. The plaintiffs filed a lawsuit against the manufacturer of the guard only and did not proceed against the government.

At trial, the plaintiffs had an accident reconstructionist testify that he knew of an alternate design that “would have been [a] safer design in the instant accident.” The defendant admitted that the expert was properly qualified as an accident reconstructionist, but it challenged the expert’s testimony, arguing that he did not conduct the necessary tests to be qualified as an expert on the subject. The trial court reviewed the expert’s report and determined that his “conclusions are well-explained, and its use of crash-test data appears appropriate.” The court also explained that the defendant did not adequately explain why the expert should have conducted additional tests. The judge admitted the expert’s testimony.