Virginia Injury Lawyers Blog

April 10, 2017

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

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.

April 4, 2017

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

by Sidney Schupak, Esq.

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 22, 2017

Court Prevents Slip-and-Fall Plaintiff from Making Argument on Appeal Because It Was Not Made at Trial

by Sidney Schupak, Esq.

Earlier this week, an appellate court in Rhode Island issued a written opinion in a premises liability case brought by the parents of a young boy who was injured while playing baseball in a park owned and operated by the defendant city. Ultimately, the court determined that although the plaintiff presented evidence on appeal that the defendant city knew of the alleged hazard prior to their son’s injury, it could not be considered on appeal because the evidence was not presented at trial.

The Facts of the Case

The plaintiff was participating in a baseball game in a park that was maintained by the defendant city. As the plaintiff was sliding into home base, his right foot and shin slid under the edge of the plate, which had been lifted due to repeated use. As the boy tried to stand, he broke his leg in two places.

A few months after the accident, the boy’s parents filed a personal injury lawsuit against the city, alleging that it had failed to safely maintain the field. In response, the city claimed that it was immune from the lawsuit due to the state’s recreational use statute. The plaintiff’s attorney issued a general objection to the application of the recreational use statute, but failed to provide a specific basis for the objection.

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 22, 2017

Proof of Causation Is Imperative in Virginia Slip-and-Fall Cases

by Sidney Schupak, Esq.

Property owners across the State of Virginia owe a duty to those whom they invite onto their land. The extent of that duty depends on the relationship between the parties. However, as a general rule, if someone is invited onto the property of another party and slips and falls due to a hazardous condition, they may have a case for damages against the property owner.

One common requirement for all premises liability lawsuits is that the injured party must be able to establish that the landowner’s negligence was the cause of their injuries. This is called the causation element. A recent case illustrates how a plaintiff’s inability to prove causation can be fatal to a premises liability lawsuit.

A Slip-and-Fall Accident Inside a Fast-Food Restaurant

The plaintiff in the case was a woman who was attempting to visit a fast-food restaurant. Like many businesses, the restaurant’s entrance consisted of two sets of double doors, with a small foyer between them. The plaintiff entered the first set of doors without a problem, but as she tried to open the second set of doors, she was unable to do so. She jiggled the door with no luck. She then started to shake the door, trying to open it, and the next thing she knew, she was on the floor. After she fell, she noticed that the ground around her was damp due to the rain outside.

February 16, 2017

How a Violation of a Jurisdiction Rule Can Result in a Court’s Inability to Hear a Case or Appeal

by Sidney Schupak, Esq.

To help combat the increasing demand on the court system, court have implemented a series of strict rules that plaintiffs must follow in order to have their case heard in a timely manner. There are various types of rules, and the penalty for the violation of a rule depends on which type of rule was violated.

One type of court rule is a jurisdictional rule. Jurisdictional rules are perhaps the most important because when they are not followed, the court loses the power to issue a binding decision in a case. For example, statutes of limitations are considered to be jurisdictional rules. Thus, if a party fails to file a lawsuit within a certain amount of time, the court loses the power to hear the case. Since the violation of a jurisdictional rule deprives the court of the power to hear the case, once a jurisdictional rule is violated, a court cannot make an exception to the application of that rule, even if the court determines it is in the interest of justice.

Other mandatory court rules can, when violated, result in the dismissal of a case. However, since the violation of a non-jurisdiction mandatory rule does not deprive the court of the power to hear the case, courts can readily apply exceptions when they deem it appropriate.

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.