Virginia Injury Lawyers Blog

June 19, 2017

Plaintiff Prevented from Presenting Witness Testimony Based on Failure to Disclose Witness During Pre-Trial Discovery

Earlier this month, a state supreme court issued an interesting opinion in a medical malpractice case highlighting the importance of complying with the rules of pre-trial discovery. The case presented the court with the opportunity to determine whether the testimony of a witness should be allowed when the plaintiff plans on calling the witness but fails to identify the witness during pre-trial discovery. Ultimately, the court concluded that the trial court was proper in excluding the testimony and affirmed the defense verdict that was delivered by the jury.

The Facts of the Case

The plaintiff was suffering from neck and back pain and began seeking treatment from the defendant doctor in 2004. In 2009, the doctor diagnosed the plaintiff with degenerative disc disease and recommended that the plaintiff undergo surgery.

The surgery was performed by the defendant, and afterwards the plaintiff suffered from several complications, requiring a subsequent surgery. After the subsequent surgery, the plaintiff was paralyzed from the waist down. He then filed a medical malpractice lawsuit against the defendant doctor for the doctor’s failure to properly treat him during the second surgery.

June 12, 2017

Court Finds Local Government May Be Liable for Dog Bite Attack

by Sidney Schupak, Esq.

Last month, an appellate court in West Virginia issued a written opinion in a case brought by the surviving spouse of a man who was killed in a vicious dog attack. The case was filed against the local county where the couple lived and required the court to determine if the county could be held liable, even though the dogs were privately owned by another citizen of the county. Ultimately, the court concluded that the city may be held liable because a special relationship existed between the county and the plaintiff.

The Facts of the Case

The plaintiff and her husband lived in Monroe County. On several occasions, the plaintiff had expressed concern to the county’s dog warden that several neighboring dogs presented a danger to the community. The dog warden told the plaintiff that the “county would take care of it.”

On a separate occasion, the dog warden visited the home of the dogs’ owner. However, when she pulled up, at least one of the dogs approached the car, jumped on the hood, and acted in an aggressive manner, preventing the dog warden from getting out of the car. She later returned to the home and issued a citation to the dogs’ owner for failing to keep the dog properly restrained.

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.

May 25, 2017

Appellate Court Discusses the Admissibility of Prior DUI Convictions in Recent Car Accident Case

by Sidney Schupak, Esq.

In Virginia personal injury trials, the presiding judge has the power to determine which evidence the jury can consider. In doing so, the judge must consult with the rules of evidence, which are passed by the state legislature. As a general rule, only evidence that is relevant to the case may be considered. However, not all relevant information is admissible.

Relevant evidence may be inadmissible for a number of reasons. For example, hearsay evidence is generally excluded. Similarly, evidence that is very prejudicial to one party may be excluded even if it is technically relevant. In a recent car accident case, the court was tasked with determining whether a defendant’s two prior convictions for driving under the influence were admissible.

The Facts of the Case

The plaintiff was on his way to work when he was involved in a head-on collision with another motorist, who was driving home from a bar. That driver was later determined to have a blood-alcohol content of .18, which is over twice the legal limit.

May 17, 2017

Appellate Court Applies “Firefighter’s Rule” in Dismissing Personal Injury Case

by Sidney Schupak, Esq.

Earlier this month, an appellate court affirmed the dismissal of a plaintiff’s personal injury case because the court determined that the plaintiff was injured while she was acting as a firefighter. Applying the “firefighter’s rule,” which was codified in a state statute, the court explained that the defendants were immune from liability because the plaintiff’s injury resulted “from the condition of fire protection or firefighting equipment or facilities.”

The Facts of the Case

The plaintiff was a firefighter who was called out to fight a wildfire that had gotten out of control. Since the wildfire was rapidly spreading, many firefighters were called out to assist. The temporary barracks that were set up for firefighters filled up, and the plaintiff sought approval to set up camp in the infield of a racetrack that was acting as the center of operations. The plaintiff’s supervisor granted her permission to set up camp in the infield.

On the first night, there were no problems. The plaintiff woke up and fought the fire all day before returning. On the second night, however, a truck that was delivering water ran over the plaintiff, resulting in serious injuries. The plaintiff filed a personal injury lawsuit against the driver of the truck and several other defendants.

May 10, 2017

Tire Manufacturer Withholds Evidence, Although Court-Imposed Fine Reversed

by Sidney Schupak, Esq.

Earlier this month, the United States Supreme Court issued a written opinion in a product liability lawsuit brought against tire manufacturing giant Goodyear. While the Supreme Court’s decision reversed a $2.7 million fine assessed by the lower court, the Court ordered the lower court to recalculate the figure.

The Pre-Trial Discovery Process

After a lawsuit is filed, but before the case is heard by a jury, the parties go through the discovery process, in which each side exchanges documents, witness lists, and other potential evidence. As a general rule, a party must disclose all requested relevant evidence to opposing counsel, even if that evidence may be detrimental to the party’s case. A party’s failure to comply with a discovery request may result in sanctions imposed by the court.

The Facts of the Case

The plaintiffs owned a motor home that was equipped with Goodyear tires. While the plaintiffs were driving the motor home on the highway, a tire blew out, sending the motor home off the road. The motor home flipped over, and several plaintiffs on board were injured. The plaintiffs filed a product liability claim against Goodyear, arguing that the tire was defective because it was not designed to operate at highway speeds.

May 1, 2017

The Importance of Properly Serving All Defendants in Virginia Personal Injury Lawsuits

by Sidney Schupak, Esq.

Before any case can be heard by a judge or a jury, the plaintiff must serve notice of the pending lawsuit to each and every one of the parties named as a defendant. A plaintiff’s failure to properly serve a party may result in a significant delay and may even cause an otherwise meritorious lawsuit to be prematurely dismissed.

In Virginia, there are several requirements that a plaintiff must ensure are met when effectuating service on a defendant. For example, the service must be addressed to the individual named in the lawsuit, or if an organization is named, to a person legally authorized to accept service. Additionally, service must be made by first-class mail, and the packet sent to the defendant must include certain additional information in order to be considered complete. In personal injury cases in which service becomes an issue, it is often because the defendant claims that the wrong person was served. This is especially true when the case is filed against a public or government entity. A recent case shows how important proper service is in personal injury lawsuits.

The Facts of the Case

The plaintiff was involved in an accident with a school bus. The plaintiff claimed that the school bus driver was negligent in causing the accident and filed a personal injury lawsuit against both the driver as well as the school district that employed him. The plaintiff hired a process server, who went to the school district building, asked where service was accepted, and delivered service to the assistant to the Human Resources Director. The plaintiff did not attempt to personally serve the school bus driver.

April 26, 2017

Track-and-Field Accident Results in $350K Settlement

by Sidney Schupak, Esq.

Earlier this month in Oklahoma, a $350,000 settlement was reached in favor of a woman who was seriously injured at a track-and-field meet held at a local school. According to a news source covering the case, the woman and her husband were attending the meet as spectators and were standing in a section that had been fenced off and specifically designated as a place for people to watch the event. However, during the meet, a student athlete threw a discus that traveled into the spectator area and struck the plaintiff.

The object that struck the plaintiff was a standard 3.5-pound discus that was plastic with a metal core. As a result of the incident, the 83-year-old woman suffered serious injuries, including a traumatic brain injury.

The woman and her husband filed a premises liability lawsuit against the school district as well as the Nebraska State Activities Association, alleging that the organizations failed to keep spectators safe. Specifically, the plaintiff and her husband claimed that there was not a sufficient barrier between the athletes and the spectators, that the organizations failed to warn spectators about the dangers involved, and that there was no safe area to observe.

April 17, 2017

Court Finds Landlord Is Not Responsible for Injuries Caused by Broken Handrail in Common Area of Apartment Building

by Sidney Schupak, Esq.

Earlier this month, an appellate court in Rhode Island issued a written opinion in a premises liability lawsuit brought by a man who was injured while he was helping a friend move a large piece of furniture. According to the facts as presented in the court’s opinion, the plaintiff slipped and fell down a spiral staircase after he placed his weight on a handrail. As the plaintiff placed his weight on the handrail, the railing snapped, causing the plaintiff to lose his balance and fall down through the center of the spiral staircase.The plaintiff brought a premises liability lawsuit against his friend’s landlord, claiming that the landlord had failed to keep the railing – which was in a common area of the apartment building – in a reasonably safe condition.

The Evidence Presented at Trial

The plaintiff was the only witness to testify at trial. The plaintiff explained that he was trying to move a large piece of furniture down the stairs, but the landing was very small, so he had to position himself partially down the stairs. In doing so, it was necessary to place “just a little bit of pressure” on the rail.

April 10, 2017

Federal Appellate Court Determines Government Is Immune from Liability for Bicycle Accident Occurring in National Forest

by Sidney Schupak, Esq.

Earlier this month, a federal appellate court issued a written opinion in a case that arose from a bicycle accident that occurred on federally owned land. Ultimately, the case presented the court with the opportunity to determine whether the government was immune from liability under the doctrine of sovereign immunity, which protects the discretionary acts of governments and government employees. Since the court determined that the alleged acts of negligence were discretionary, the court upheld the government’s sovereign immunity.

The Facts of the Case

The plaintiff was riding her mountain bike in the De Soto National Forest. She did not look at the bulletin board at the trail head, which had a warning that the Couch Loop Trail was closed. The plaintiff and her friend continued down the Couch Loop Trail, eventually taking an alternate route off the main trail. This alternate route led the bikers to an area with various ramps, or “jumps.” The ramps were not built by the U.S. Forest Service, and the Forest Service claimed to have no knowledge of their existence.

The plaintiff rode over one of the ramps and fell, resulting in a serious injury. She filed a premises liability lawsuit against the federal government, claiming that the government was negligent in maintaining the land and also negligent in failing to warn her about the dangerous conditions. The plaintiff claimed that government immunity did not apply in this instance, since the acts of the rangers were ministerial. A ministerial act is one that does not involve the exercise of discretion.