Virginia Injury Lawyers Blog

January 10, 2017

Appellate Court Discusses the Foreseeability Element in Recent Car Accident Case

Before a personal injury case is submitted to a jury for the ultimate determination of whether the defendant should be held legally and financially responsible for the plaintiff’s injuries, a judge must first determine that each of the plaintiff’s claims meet the necessary elements. If a judge determines that one or more of the plaintiff’s claims fail to meet the elements of that claim, the judge will dismiss the insufficient claims and allow only the legally sufficient claims to proceed.

In a recent case in front of a New York appellate court, the court discussed the foreseeability element that is present in most personal injury cases.

Hain v. Jamison: The Facts

Hain was driving on a rural road late in the evening when she saw a calf that had escaped from its home and was standing in the road. Hain safely pulled over to the side of the road, exited her vehicle, and proceeded to approach the calf and help it off the road. As she was assisting the calf, another motorist came by and struck Hain, tragically killing her.

January 3, 2017

Summary Judgment in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

Thousands of personal injury cases are filed each year across the State of Virginia. While many of these cases have merit, the reality is that some do not. To help deal with this reality, and to alleviate the burden on the court system, courts have enacted a strict set of procedures to help ensure that only meritorious cases make it in front of a jury. Perhaps the most common of these procedures is a motion for summary judgment.

In Virginia, summary judgment is a way for one party to obtain judgment in their favor very early in the process. Essentially, if summary judgment is appropriate, the judge will enter judgment in favor of that party, and the case is over without the need to submit the case to a jury and engage in additional fact-finding. However, summary judgment is only proper when there “is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The burden rests with the moving party, meaning the party that is asking the court for judgment in its favor. This party must establish that – taking the evidence on its face and without assessing credibility – they are entitled to judgment in their favor. If conflicting evidence exists, or a credibility determination must be made between competing sources, summary judgment is not appropriate. A recent case illustrates each party’s burdens in a summary judgment motion filed by the defense in a personal injury case.

December 27, 2016

Appellate Court Reverses Plaintiffs’ Jury Verdict after Finding Government Entity Was Entitled to Design Immunity

by Sidney Schupak, Esq.

Earlier this month, an appellate court in California issued a written opinion in a case brought by the surviving family members of a man who was killed in an auto-pedestrian accident against the city where the accident occurred. In the case, Gonzales v. City of Atwater, the court reversed the lower court’s decision not to apply governmental design immunity, holding that the government met its burden to establish immunity. As a result, the $3.2 million verdict in favor of the plaintiffs was reversed.

The Facts of the Case

Gonzales was struck and killed in an auto-pedestrian accident occurring at an intersection in the City of Atwater. The surviving family members filed a personal injury lawsuit against both the driver of the truck that struck Gonzales as well as against the City of Atwater. The jury determined that the driver of the truck was not at fault and that the city was fully responsible for the accident, due to the dangerous design of the intersection. The jury awarded the plaintiffs $3.2 million.

The city repeatedly argued at various times throughout the trial that the case against it should be dismissed because it was entitled to immunity through the doctrine of governmental design immunity. Specifically, the city argued that it relied on a 2001 study it had commissioned to determine how to safely design the intersection before constructing the roads at the intersection. The trial court denied all of the city’s motions to dismiss, and a jury eventually issued a verdict in favor of the plaintiffs for $3.2 million.

December 19, 2016

Man Seeks Compensation from Manufacturer After He Is Burned in Fire Started While Using “Goof Off” Cleaner

by Sidney Schupak, Esq.

Earlier last month, a federal appellate court issued a written opinion in a product liability case, originally arising out of Illinois, claiming that the manufacturer of the “Goof Off” brand cleaner should be liable for injuries a consumer sustained while using the product. In the case, Suarez v. W.M. Barr & Co., the appellate court allowed several of the plaintiff’s claims to continue toward trial, finding that the plaintiff presented enough evidence for a jury to potentially find in his favor.

The Facts of the Case

Suarez was using “Goof Off” brand cleaner to clean his basement floor. Suarez read the label and followed the instructions. One of the steps listed on the product’s label instructed those intending to use the product to clean floors to spread the product across the floor with a broom. Suarez used a broom to spread the cleaner across the floor in his basement, but as he was doing so, the cleaner caught fire. Suarez was seriously injured in the fire and filed this product liability lawsuit, seeking compensation for his injuries.

December 7, 2016

Plaintiff’s Bad-Faith Insurance Claim Allowed to Proceed after Dismissal Is Reversed on Appeal

by Sidney Schupak, Esq.

Earlier this month, a federal appellate court issued an opinion that reversed a lower court’s holding that dismissed a plaintiff’s bad-faith claim against her own insurance company. In the case, Peden v. State Farm, the court determined that the insurance company’s failure to conduct a thorough investigation before denying the plaintiff’s claim potentially could give rise to a bad-faith claim. Since the lower court dismissed the plaintiff’s claim, claiming it was insufficient as a matter of law, the appellate court reversed the decision, allowing the plaintiff’s case to proceed toward trial or a settlement.

The Facts of the Case

The plaintiff, Peden, was with a group celebrating a friend’s birthday. Her friend had received a new van for her birthday from her fiancé, Mr. Graf. At some point in the evening, the group piled into the new van for a photo. By this point, most of the group, including Graf, was intoxicated. Once the group was in the van, Graf hopped into the driver’s seat and took the van for a cruise.

Graf crashed the van while driving under the influence, injuring several inside, including Peden. Both Peden and Graf were insured by State Farm. Peden initially filed a claim with Graf’s insurance. However, since the total policy limit had to be split among all injured parties, the amount Peden received was insufficient to cover her damages. She decided to file a claim under her own insurance policy to recoup the difference.

December 1, 2016

Government Immunity in Virginia Personal Injury Lawsuits

by Sidney Schupak, Esq.

Due to its proximity to the nation’s capital, Virginia sees a higher-than-average number of lawsuits with government entities, officials, or employees being named as defendants. That being the case, it is important for personal injury plaintiffs to understand the concept of governmental immunity and how the legal doctrine can come into play in a personal injury case.

Governmental Immunity Acts to Protect Government Employees in Some Situations

Under the long-standing doctrine of governmental immunity, a state or local government cannot face legal liability for the acts of its agencies or employees unless it consents to the lawsuit. Statutory law outlines some situations in which governments automatically consent to lawsuits brought against them, such as in cases of willful or intentional misconduct. However, in cases involving acts of negligence, government agencies will generally not consent to be named as a defendant.

This is where the doctrine of government immunity becomes complicated. Immunity only attaches to acts that are considered discretionary in nature. For those other acts that are ministerial, meaning there is a certain way that the act is supposed to be carried out, government immunity will not attach. This is where much of the litigation takes place in many lawsuits brought against government defendants. A recent case illustrates this point.

November 21, 2016

The “Foreseeability” Requirement in Personal Injury Lawsuits

by Sidney Schupak, Esq.

Personal injury lawsuits have certain elements that must be proved before an injured party is able to recover financially for their injuries from the at-fault party. Generally speaking, these four elements are duty, breach, causation, and damages. Thus, a plaintiff must prove that the defendant breached a duty of care that was owed to the plaintiff and that this breach was the cause of the plaintiff’s injuries.

Over the course of time, courts have developed a framework for determining when a defendant owes a plaintiff a duty of care. For example, most motorists owe other motorists with whom they share the road a duty to operate their vehicle in a safe manner. However, that duty is not unlimited. Specifically, the duty only covers those who could be foreseeably injured by the defendant’s negligent conduct. A recent case explains this concept in more detail.

Ready v. RWI Transportation: Foreseeability in a Chain-Reaction Accident

A truck operated by an employee of RWI Transportation caused an accident on the highway when he made an improper lane change. As a result of the accident, the truck and another vehicle ended up blocking several lanes of travel, causing a significant traffic back-up.

November 16, 2016

Proving a Virginia Premises Liability Claim

by Sidney Schupak, Esq.

Whenever someone is injured on another party’s property, the property owner may be legally liable for the injuries suffered by the injured party under the theory of premises liability. Premises liability cases are based on the legal theory that landowners owe a duty of care to keep those whom they invite onto their land safe. The level of duty owed to the guest depends on the relationship between the landowner and the guest.

In Virginia, plaintiffs must prove that the defendant property owner owed a duty of care to the injured party that was violated by some action or inaction. Most often, these cases are brought after a property owner fails to take some kind of action to remedy a hazard on their property. For example, an unshoveled walkway or puddle of water can very easily result in a guest slipping and falling.

Virginia premises liability plaintiffs must also prove that the property owner was negligent in their failure to remedy the hazard. This often entails showing that the property owner knew or should have known of the dangerous condition. If a plaintiff cannot prove that the landowner had the requisite level of knowledge, it is unlikely that their claim will be successful.

November 9, 2016

Court Holds Plaintiff’s Injury While Boarding Casino Shuttle Results in Viable Lawsuit Against Casino

by Sidney Schupak, Esq.

Earlier this month, a California appellate court issued a written opinion in a case involving a plaintiff who was injured as she boarded a casino shuttle bus. While the woman’s injuries were caused by a fall precipitated by other passengers, the court determined that the casino had a duty to ensure the safe boarding of the shuttle. In so holding, the court reversed a lower court’s decision to dismiss the woman’s case.

Huang v. The Bicycle Casino: The Facts

The Bicycle Casino operates a shuttle to pick up gamers who do not have other transportation to get to the casino. The shuttle operated throughout Los Angeles and traveled on a fixed path with several stops along the way. Since the shuttle ran just once an hour, some of the more popular stops would have many people waiting for the shuttle. The shuttle could hold only about 45 people.

The casino would occasionally bring along a second employee, along with the driver, to ensure that passengers would board in an orderly fashion. However, on the day in question, the driver was alone. As the driver approached the stop where Huang was waiting, the crowd of people surged toward the shuttle.

November 3, 2016

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

by Sidney Schupak, Esq.

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.