Virginia Injury Lawyers Blog

May 15, 2018

Fourth Circuit Rules in Favor of Insurance Company in Recent Virginia Car Accident Case

Earlier this month, the United States Court of Appeals for the Fourth Circuit issued a written opinion in a Virginia car accident case discussing whether a third party’s insurance policy covered the plaintiffs’ accident. Ultimately, the court concluded that the insurance company was acting within its right to deny coverage and dismissed the plaintiff’s lawsuit, based on the fact that the vehicle the plaintiffs were operating was not a “covered auto” under the third party’s insurance policy.

The Facts of the Case

The plaintiffs were independent contractors who agreed to deliver furniture for a local furniture company. However, since the plaintiffs did not have their own vehicle, the furniture company allowed the plaintiffs to deliver the furniture using a Penske truck that it had rented.

During the delivery, the plaintiffs pulled over, and one of the plaintiffs got out of the truck to check that the load of furniture was secure. At this time, another vehicle crashed into the truck, killing one plaintiff and seriously injuring the other.

May 4, 2018

Court Discusses the Doctrine of Imputed Negligence in Recent Car Accident Case

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in a personal injury case discussing an issue that may have increasing importance in Virginia car accident cases. The case required the court to determine if a defendant can assert an imputed negligence defense against an owner-passenger who is injured due to the alleged negligence of someone whom she allowed to use her car.

Although this defense was historically permitted, the court held that recent changes in the law and how insurance policies are written no longer provide support for the defense. Thus, the court held that the defense was not valid.

The Facts of the Case

The plaintiff was a woman who was waiting in the front-passenger seat of a car she owned while her husband – the driver – ran into a restaurant to grab the couple’s order. The plaintiff’s husband had parked the vehicle in a lane that was perpendicular to the defendant’s truck. As the defendant backed out of the parking space, he crashed into the plaintiff’s vehicle.

April 23, 2018

Court Rejects Premises Liability Claim Based on Plaintiff’s Inability to Prove the Defendant Was Aware of Hazard Causing Her Fall

by Sidney Schupak, Esq.

A key element in a Virginia premises liability lawsuit is establishing that the defendant landowner had actual or constructive knowledge of the dangerous hazard that caused the plaintiff’s injury. If a landowner has actual knowledge of a hazard, that is generally easy to establish through the words or actions of the landowner. However, establishing constructive knowledge can be more difficult.

What Is Constructive Knowledge?

Constructive knowledge is a legal fiction, whereby a court will presume that a party had knowledge of a fact based on the circumstances. Essentially, if a court finds that a party had constructive knowledge of a fact, the court is saying that the party should have had knowledge of the fact, given the surrounding circumstances. For example, if a grocery store manager claims to not have knowledge of a puddle formed by a jar of pickles that fell from the shelf, but then he testifies that he walked by the puddle 10 times while helping customers, a court may determine that the manager had constructive knowledge of the puddle.

Recently, a federal appellate court issued a written opinion in a case, providing a real-world example of how courts analyze cases involving a defendant’s constructive knowledge of a dangerous hazard.

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.

April 2, 2018

Court Discusses Admissibility of Plaintiff’s Social Media Account

by Sidney Schupak, Esq.

The issue of the admissibility of social media posts is in Virginia personal injury cases has recently become a hot topic. Across the country, courts have come up with different methods of handling this sensitive information. Earlier this month, an appellate court issued a written opinion in a personal injury case presenting the court with the opportunity to discuss whether a plaintiff’s private social media account should be made available to the defendant.

The Facts of the Case

The plaintiff sustained a serious brain injury after falling off a horse that was owned by the defendant. As a result of the fall, the plaintiff claimed that her active lifestyle was curtailed, due to the limitations from which she now suffered. As evidence of these limitations, the plaintiff explained that she used to be very active on social media, but she closed her account six months after the accident because she was having a difficult time composing messages and writing posts.

After hearing this, the defendant sought access to the plaintiff’s private Facebook account. The defendant did not request access to the entire Facebook, just pictures from before and after the accident, as well as the length of the messages the plaintiff sent after the accident. Apparently, the defendant wanted to see if the plaintiff’s claims that she could not effectively compose messages were verifiable.

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.

March 19, 2018

Court Precludes Defense Expert from Testifying in Recent Spa Injury Case

by Sidney Schupak, Esq.

Earlier this month, an appellate court issued an opinion in a personal injury case dealing with the admissibility of expert witness testimony. The case is important to Virginia personal injury plaintiffs because the law governing the admissibility of expert testimony in Virginia is similar to the law applied by the court in this case. The case also illustrates the importance of securing an experienced, reliable, and credible expert witness.

The Facts of the Case

The plaintiff planned on having a chemical peel procedure performed at the defendant day spa. Prior to the procedure, the plaintiff filled out a questionnaire indicating that she suffered from rosacea. The aesthetician at the day spa failed to review the plaintiff’s questionnaire and performed the chemical peel.

After the procedure, the plaintiff’s skin condition began to worsen. She later filed a personal injury lawsuit against the aesthetician and the day spa, claiming that their negligence resulted in her rosacea worsening. The defendants admitted that the aesthetician was negligent, but they claimed that the worsening of the plaintiff’s skin condition was not necessarily caused by their negligence.

March 11, 2018

Virginia Appellate Court Reverses Plaintiff’s Jury Verdict Based on a Lack of Causation Testimony

by Sidney Schupak, Esq.

Earlier this year, an appellate court issued a written opinion in a Virginia medical malpractice case requiring the court to determine if the plaintiff presented sufficient evidence that the defendant’s alleged negligence was the cause of the plaintiff’s injuries. The court considered the evidence presented by the plaintiff, and it ultimately determined that there was a gap in testimony. As a result, the jury verdict rendered in the plaintiff’s favor was reversed.

The Facts of the Case

The plaintiff was a patient of the defendant doctor and arranged to have a laparoscopic hysterectomy performed. The defendant went over the risks of the procedure, and the plaintiff acknowledged the risks and opted to proceed nonetheless.

As a part of the procedure, the defendant needed to insert a small tube into the plaintiff’s abdomen. The first time the defendant attempted to do this, she realized it was too close to one of the organs in the abdomen, so she removed the tube and tried to insert it in a different location.

March 5, 2018

Obviousness of the Hazard in Virginia Premises Liability Cases

by Sidney Schupak, Esq.

In premises liability claims, the plaintiff must present evidence of each element in order for a judge to submit the case to a jury. If a plaintiff fails to establish each element of his claim, the judge will grant a defense motion for summary judgment, if made.

One element that is frequently contested in premises liability cases is the obviousness of the hazard. Obviousness is less an element of a claim than it is a defense. Essentially, if a defendant in a premises liability case can establish that the hazard that caused the plaintiff’s injuries was open and obvious, the plaintiff’s case will be dismissed.

A recent case illustrates how a plaintiff’s knowledge of the hazard that caused his injuries can defeat the plaintiff’s claim.