Premises Liability

July 30, 2022

Accident at Chemical Lime Plant Leaves One Dead and One Injured in Virginia

In every state, after an accident that leaves someone injured and causes the injured party to file suit, there are specific laws that dictate when and how someone can bring a lawsuit. Every state has a statute of limitations, which places a deadline for when a lawsuit must be filed by. In the state of Virginia, the statute of limitations for a personal injury case is two years. This means that if you plan to bring a personal injury lawsuit in the state of Virginia, you must do so within two years from the date of the accident.

Additionally, unlike most states, Virginia uses the law of contributory negligence. In the few states left with contributory negligence laws, which includes Virginia, if the person who was injured in the accident also contributed to the accident, the injured person will be barred from recovering damages. Most other states use some form of comparative negligence or modified contributory negligence, which would allow an injured party to still recover some damages even if they have some partial fault in the accident. In Virginia, however, the state also has the last clear chance rule, which means that the final burden to act to avoid an injury falls on the defendant when specific conditions are properly met.

In a recent news report, a chemical lime plant accident occurred in Virginia, involving employees who were providing contracting services to the mine. An employee was trapped inside an excavator that had fallen over onto its side. A second person attempted to help the trapped worker and thus suffered minor lime chemical burns as he was injured in the process. The injured person was treated on the scene by first responders. Unfortunately, by the time rescuers made it to the trapped worker, they found that he was already deceased. All other mine workers made it out safely.

April 27, 2021

Virginia Supreme Court Addresses Premises Liability Case Involving Third-Party’s Negligence

by Sidney Schupak, Esq.

Recently, the state’s high court issued an opinion in a claim stemming from a Virginia premises liability lawsuit. The case arose when a woman was shot and killed while visiting her mother’s home. According to the claim, the defendant was visiting his grandparents’ home when they permitted him to practice shooting in the direction of the victim’s mother’s residence. One of the bullets the defendant shot went through the woman’s home and struck the victim. The victim’s personal representative filed a lawsuit claiming that the grandparents “knew or should have known” that firing bullets in the direction of their home would go through the trees and strike anyone located in or around the residence. In response, the defendants filed a demurrer, arguing that they did not owe the mother or any of her visitors a duty. Additionally, they claimed that they were immune under Virginia’s Recreational Land Use Act.

The plaintiff appealed, arguing that the defendants had a duty to ensure the reasonable safety of that outside of their property and prevent the direct harm from their affirmative actions. Virginia premises liability cases hinge on whether the negligent party owed a duty to the person who is seeking recovery. The imposition of duty does not solely rest on foreseeability. Rather, inquiries regarding whether a duty exists depend on the totality of the circumstances and include analyzing the likelihood of injury, the burden of preventing the injury, and the consequences of imposing a duty on the negligent party.

Generally, landowners are subject to liability for harm to individuals outside of their land when the injury results because of the owner’s activities on their property. However, this duty typically applies to land occupiers, not third parties on the premises. As such, typically, landowners do not have a duty to protect others from harmful acts of third parties on their property.

January 10, 2019

Virginia’s Contributory Negligence Rule May Make Recovering after a Slip-and-Fall Accident Difficult

by Sidney Schupak, Esq.

Virginia is one of only a few states that still applies the common-law doctrine of contributory negligence. Under a contributory negligence analysis, a plaintiff who bears any responsibility for the accident resulting in their injuries is precluded from recovering from any other at-fault party. Thus, in any Virginia personal injury lawsuit, a plaintiff who is found to be just 5% at fault for an accident can be barred from recovering for their injuries against a party who was 95% at fault, as an example.

As noted above, most other states have shifted away from the contributory negligence doctrine and implemented a comparative fault rule. Under a comparative fault analysis, an at-fault plaintiff will be permitted to recover for their injuries regardless of their own fault. However, a plaintiff’s total recovery amount will be reduced by their percentage of fault. Some jurisdictions apply a “pure” comparative fault rule, allowing a plaintiff to pursue a claim regardless of their own percentage of fault; however, most states use a “modified” rule, allowing only those plaintiffs to recover who are less than 50% at fault.

Virginia’s contributory negligence law applies in almost all negligence cases, and often leads to relatively harsh results. However, contributory negligence is especially difficult to overcome (although far from impossible) in Virginia premises liability cases. This is because a defendant in a Virginia slip-and-fall case may be able to defeat a plaintiff’s claim by showing they were even the slightest bit at fault. For example, this may be done by arguing that a plaintiff was not looking out where they were going or by not wearing appropriate footwear.

October 3, 2018

Court Rejects Plaintiff’s Slip-and-Fall Case against City

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case involving a plaintiff’s injuries that were sustained while riding his bike in a public park. The case presents an important issue for Virginia premises liability plaintiffs in that it discusses the concept of recreational-use immunity, which also applies in Virginia.

The case required the court to determine whether the plaintiff’s case should be permitted to proceed against the city that was responsible for maintaining the park, or if the park was entitled to recreational-use immunity. Ultimately, the court determined that the city was entitled to recreational-use immunity because the plaintiff failed to establish that the city knew of the hazard that caused his fall.

The Facts of the Case

According to the court’s opinion, the plaintiff fell off his bike and was seriously injured after striking a pothole while riding on a trail in a public park that was maintained by the defendant city. The plaintiff filed a premises liability case against the city.

September 13, 2018

Court Discusses Instructor’s Duty and Potential Liability in Recent Yoga Injury Case

by Sidney Schupak, Esq.

In a recent personal injury opinion, a state appellate court discussed the duty that a yoga instructor owed to the plaintiff, who was taking a class from the instructor when she was injured as the instructor adjusted her during a pose. The case is important for Virginia personal injury victims because it illustrates the type of analysis a court engages in when evaluating whether a defendant breached a duty of care that was owed to the plaintiff.

The Facts of the Case

The plaintiff took a yoga class that was taught by the defendant instructor. During the class at several different times, the plaintiff claimed that the defendant instructor made several adjustments to her body that caused her pain. These adjustments included putting a belt around the plaintiff’s waist to pull her hips in line, applying downward pressure on her lower back while in “cow” pose, and twisting her neck to both sides.

At the time, the plaintiff did not tell the defendant that the adjustments were causing her pain, nor did she ask him to stop. Later, the plaintiff filed a personal injury lawsuit against both the instructor as well as the yoga studio.

August 6, 2018

Court Dismisses Plaintiff’s Slip-and-Fall Case Against City Based on Plaintiff’s Failure to Show the City Knew of the Hazard

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case illustrating one of the difficulties that some Virginia slip-and-fall plaintiffs encounter when filing a case against a landowner. The case required the court to determine if the plaintiff’s case should proceed to trial despite the fact that she did not offer any direct evidence that the city knew the hazard existed. Finding that the plaintiff’s photographs failed to sufficiently prove that a crack in the sidewalk was so old as to impute knowledge of its existence, the court dismissed the plaintiff’s case.The Facts of the Case

The plaintiff was taking a walk to get some exercise along a sidewalk that was maintained by the defendant city. At some point in her walk, the plaintiff tripped and fell on a slab of concrete, breaking her arm. The plaintiff called 911, and the plaintiff’s daughter transported her to the hospital. The next day, the plaintiff met with a police officer and reported her injuries.

Photographs of the sidewalk where the plaintiff fell showed two adjoining concrete slabs, one about 1.5 to 2 inches higher than the other. The plaintiff testified that, while she could not say for sure that she tripped on the raised portion of the concrete slab, she just “knew that her feet hit something.”

July 6, 2018

Court Rejects Plaintiff’s Slip-and-Fall Lawsuit Based on Defendant’s Argument that Plaintiff Had Equal Knowledge of the Hazard that Caused Her Fall

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a premises liability case, illustrating a common difficulty many Virginia premises liability plaintiffs face when attempting to establish a defendant’s liability. The case presented the court with the task of determining whether the plaintiff’s awareness of the slick patch of ice that caused her to slip and fall was fatal to her claim against the defendant shop owner. Ultimately, the court concluded that the evidence was undisputed that the plaintiff was aware of the hazard and that she was not forced to leave out the same door she entered. Thus, the court held that the plaintiff’s case was properly dismissed.

The Facts of the Case

The plaintiff was visiting the defendant’s store on an errand for her employer. As the plaintiff approached the front door to the store, she noticed that a water spigot had been left on and that water was spilling onto the pavement and freezing. The plaintiff negotiated the ice without issue and, believing that the ice was a hazard to other customers, let an employee know as soon as she entered the store.

The employee informed the plaintiff that she could leave out a set of rolling doors on the side of the building. The employee gave the plaintiff directions, but instructed the plaintiff not to tell anyone he told her to exit through the door, otherwise he could get fired. The plaintiff found the rolling doors, but they were locked.

March 26, 2018

Federal Appellate Court Finds Parents’ Presence Mitigates Defendant’s Duty in Recent Premises Liability Case Involving Young Child

by Sidney Schupak, Esq.

Earlier this month, a federal appellate court issued a written opinion in a premises liability case presenting an interesting issue that frequently comes up in Virginia premises liability cases. Specifically, the case considered whether the presence of a young child’s parents can act to mitigate any duty that was owed to the child by the defendant landowner. Ultimately, the court concluded that it can, and it dismissed the plaintiff’s lawsuit against the defendant.

The Facts of the Case

The plaintiff in the case was a young child who was seriously injured while visiting the defendant coffee shop. According to the court’s recitation of the facts, the young child was accompanied by his parents. After the family ordered their food and drinks, they went upstairs to use the restroom before leaving. On the way out, the parents heard one of their two young sons screaming.

As it turns out, a metal pole that was used to create the line leading up to the cash register had fallen on the young boy’s hand. The boy was taken to the hospital, but doctors were unable to save the boy’s finger, which had to be amputated.

February 20, 2018

What Injury Victims Need to Know About Virginia’s Recreational Use Statute

by Sidney Schupak, Esq.

As a general rule, landowners owe a duty of care to those whom they allow onto their property. The extent of any duty owed is dependent on several factors, including the purpose of the visit as well as the relationship between the parties. Perhaps the most common example of a Virginia premises liability lawsuit is when a customer is injured while shopping at a business.

A recent case illustrates a different type of premises liability lawsuit. In this case, a young girl was seriously injured after she fell nearly 30 feet after slipping between the bleachers at a youth football game. The girl’s parents filed a premises liability lawsuit against the city, which operated the stadium, claiming that the city was negligent in the construction of the bleachers and also for failing to warn visitors of the dangers that were present.

The city claimed that it could not be held liable under the state’s recreational use statute. Specifically, the statute prevented anyone from holding a landowner liable if their injury occurred while engaging in recreational activity. In order for the statute to apply, the landowner cannot charge a fee for the use of their land. However, in this case, the city charged the plaintiffs $2 admission into the game, but did not charge their daughter any admission fee because she was under six years old at the time.

January 17, 2018

Virginia Supreme Court Finds Plaintiffs Were Too Late in Amending Complaint

by Sidney Schupak, Esq.

Virginia personal injury plaintiffs have to be careful in following the procedural rules in any case. In a recent Virginia Supreme Court decision, after a jury found in the plaintiffs’ favor, the Court determined the plaintiffs had amended their pleadings too late and sent their case back for a new trial in their carbon monoxide poisoning case.

The Facts of the Case

The carbon monoxide detector went off in an apartment rented by four tenants, and a maintenance worker came and replaced the batteries. The alarm sounded again, and the tenants called the gas company. An inspector came and measured the carbon monoxide (CO) levels in the apartment. He found the CO levels were hazardous, turned off the gas supply to the furnace, and “red tagged” the furnace as the suspected source of the leak.

The apartment’s property management company then sent a maintenance worker to the apartment, who stated that he had found a loose vent pipe in the attic, reattached it, and rechecked the CO level. He repaired the vent pipe by using zip screws, which was contrary to manufacturer specifications. A city code enforcement officer later came, who found the CO levels were within the acceptable range and removed the red tag, but he did not go into the attic or inspect the furnace or vents.