Virginia Injury Lawyers Blog

September 27, 2016

Family’s Product Liability Lawsuit Against Smoke Detector Manufacturer Dismissed for Failure to Present Necessary Evidence

Proving a product liability lawsuit against the manufacturer of a dangerous product is not always as easy as explaining how a product caused an injury. For example, depending on the type of claim being asserted, a plaintiff may need to present actual evidence that the product was defective, was poorly designed, or presented an unreasonable risk of injury. In fact, all personal injury cases have certain elements that must be proven. If a party fails to provide evidence tending to prove each of the elements of their claim, the judge must dismiss the case upon the defendant’s motion. This is exactly what happened to one family’s product liability case against a smoke detector manufacturer.

Hosford v. BRK Brands, Inc.

The plaintiffs were the surviving family members of a young girl who died when her family’s mobile home caught fire. According to the court’s written opinion, the girl’s parents had installed two of the defendant’s smoke detectors in the mobile home. On the night of the tragedy, an electrical malfunction started a slow smoldering fire in the mobile home. The girl’s parents awoke to one of the smoke detectors, but the fire had already overtaken the home, and it was too late for them to save their daughter.

The family filed a product liability lawsuit against the manufacturer of the smoke detectors. The plaintiffs made several claims, the most relevant of which claimed that the smoke alarms were defective at detecting the slow smoldering fire and did not go off with enough time to allow them to safely evacuate their home. After a trial, the jury determined that the manufacturer was not liable, and the plaintiff appealed.

September 20, 2016

Good Samaritan Laws and How They Can Affect a Personal Injury Lawsuit

by Sidney Schupak, Esq.

Most personal injury lawsuits are based on the theory of negligence. In essence, these lawsuits claim that one party, the defendant, is liable to another party, the plaintiff, as a result of some kind of negligent act or failure to act on the part of the defendant. In order to prove a negligence lawsuit, a plaintiff must show that the defendant owed the plaintiff a duty that was violated by the defendant’s actions.

Good Samaritan laws act to limit the liability of those who happen across an emergency and try to help but end up causing more harm in the process. The idea behind these laws is that the government wants to encourage people to help others in peril, so immunity from civil liability is given to those who try to help, even if their attempts end up causing additional injuries. However, there are limits to Good Samaritan laws. Generally, Good Samaritan laws do not apply if the actor was grossly negligent or reckless in providing the care. Another issue that may come up is exactly which conduct is covered under a Good Samaritan law. A recent case looks at one example of how a Good Samaritan law may affect a plaintiff’s right to recover compensation.

Carter v. Reese: A Truck Rolls Backwards, Crushing a Man’s Leg

Carter, a truck driver, slipped and fell after unloading his rig. His leg became stuck in the gap, and he was unable to free himself, so he called out for help. Reese heard Carter’s cries for help and came to assist. Carter told Reese to get into the truck and put it in drive so that he could get his leg free. Carter told Reese to be sure not to put the truck in reverse.

September 13, 2016

Woman Claims Target Sold Her Bike with Defective Brakes

by Sidney Schupak, Esq.

In a recent case, a woman bought a mountain bike from Target that she claimed had been previously returned. After riding the bike for just a few minutes, she fell off the bike at the bottom of a hill, injuring her shoulder. A bystander came over and showed her that the rear brakes had tightened on the back tire, releasing the brakes and causing her to fall. The woman claimed that a brake had been defective and had been repaired before it was resold to her. She claimed that she then returned the bike and left it at Target. Target claimed that it did not have the bike, and it had not been located. The bike was never located.

The woman sued Target for selling her a bike with defective brakes. The case proceeded to trial, and the jury found in favor of Target. On appeal, the woman argued that the jury’s decision was “against the weight of the evidence.” She claimed that no reasonable jury could have reached that decision and that a new trial was warranted.

The court explained that while there was evidence that supported the woman’s version of events, there was also evidence supporting Target’s version of events. For example, she testified that she had bought the bike used and that an employee told her that it had been sent back due to a malfunctioning brake. On the other hand, Target’s employee testified that he took the bike from an area containing bikes for sale, rather than from those kept for repair. The woman also said that the bike had cardboard and plastic on it, which an employee testified are only kept on brand new bikes. Thus, while the jury could reasonably have found in favor of the woman, the jury could also reasonably have found in favor of Target. For these reasons, the verdict remained in place.

September 6, 2016

Battery Claims Based on Lack of Informed Consent May Be Subject to Procedural Requirements of Medical Malpractice Claims

by Sidney Schupak, Esq.

After undergoing a procedure to have an intrauterine device (IUD) implanted, a woman filed a lawsuit against her doctor for battery. The woman argued that her doctor failed to obtain her informed consent prior to the procedure, since she later discovered that the IUD she had received was not approved by the Federal Drug Administration (FDA). The IUD actually was on the approved FDA list for IUDs, but it did not meet the FDA’s requirements because it had been shipped to Canada rather than to the United States.

However, when the woman filed the complaint, she did not file a medical expert affidavit along with it, stating that the expert supported the allegations made in the lawsuit. In that state, plaintiffs who filed medical malpractice claims had to file a supporting medical expert affidavit with the complaint. The woman claimed that she did not need the medical expert affidavit because she was filing a claim for battery rather than for medical malpractice.

Yet, in a recent decision, the supreme court of that state found that she did need a medical expert affidavit even though she filed a “battery” claim. The court explained that battery claims against a medical provider based on a lack of informed consent should be subject to the same requirements as medical malpractice claims. Just as general medical malpractice claims do, the lawsuit required considering what the professional standard was in obtaining informed consent. For that reason, a medical expert affidavit was required.

August 25, 2016

Recent Case Illustrates the Importance of Naming All Potentially Liable Parties from the Outset of a Medical Malpractice Case

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Idaho issued a written opinion in a medical malpractice case, affirming the dismissal of the case because the plaintiff failed to name the proper parties within the relevant statute of limitations. In the case, English v. Taylor, the court decided that the filing date of the amended complaint, rather than the date on which the plaintiffs sought leave to amend, was the date that triggered the lawsuit.

The Facts of the Case

Mrs. English underwent surgery at the defendant’s facility in 2011. As a result of a complication with the surgery, English suffered a stroke and sustained related injuries. After her recovery, English and her husband filed a lawsuit against the manufacturer of one of the medical devices that was used in the surgery. At that time, neither the doctor who performed the surgery nor the medical facility where the surgery was performed were named as defendants.

One day before the two-year statute of limitations was over, the Englishes filed a request for a medical provider to review the surgery to determine if there may have been any medical malpractice involved. This “tolled” or paused the statute of limitations and provided the Englishes with an additional 30 days. During that 30-day period, the Englishes filed a motion with the court, asking for permission to amend their complaint to add the doctor as well as the medical facility as defendants, and to amend the cause of action to include a medical malpractice theory. The court granted permission.

August 18, 2016

Manufacturer Escapes Liability in Product Liability Lawsuit Based on “Optional Equipment Doctrine”

by Sidney Schupak, Esq.

Manufacturers, distributors, and retailers of merchandise all have a duty to ensure the goods in which they are dealing meet certain safety standards. If a dangerously made product, or a malfunctioning product, causes an injury to a buyer, that person may be able to seek compensation for their injuries through a product liability lawsuit.

Product liability lawsuits vary in terms of what must be proven. However, the essence of all product liability claims is the same; a dangerous product caused an injury to someone. As is the case with most other theories of liability, there are some defenses to a product liability lawsuit of which plaintiffs should be aware. In a recent case in front of a federal appeals court, the “optional equipment doctrine” was discussed, adopted, and applied.

The Optional Equipment Doctrine

In the case, Parks v. Ariens, the court determined that a lawnmower manufacturer was not liable under a product liability theory when it sold a ride-on lawnmower without a roll-cage or seatbelt. The plaintiff in the case was the surviving spouse of a man who had died when the lawnmower he purchased rolled and trapped him underneath. The man’s widow filed a product liability lawsuit against the lawnmower manufacturer, arguing that it should be responsible for her husband’s death because it was negligent to sell the lawnmower without the roll-cage or seatbelt.

August 11, 2016

Premises Liability Case against Government Entities May Require Additional Proof

by Sidney Schupak, Esq.

The United States was founded on certain principles that have remained with the country through the state and federal constitutions, common law decisions, and legislatively enacted statutes. One of these principles is the idea that a government entity should not be held liable for any injuries caused as a function of the government carrying out its governmental business. This is called government immunity.

However, to say that a government is immune from all lawsuits that may arise while carrying out government business would grossly overstate the principle. In fact, governments can – and often are – held liable for their negligent and reckless actions, as long as there is evidence to overcome the immunity. Generally speaking, a negligent act will not rise to the level of culpability necessary to overcome immunity. Instead, there must be some “willful” or “wanton” conduct. While an intentional action certainly would satisfy this requirement, it is not required. Courts are willing to infer this level of culpability if a plaintiff can show, for example, that a government entity knew about a dangerous defect but failed to do anything about it. This is exactly what happened in a recent case involving a woman who tripped and fell on an uneven sidewalk.

Bernardoni v. City of Saginaw: The Facts

In this case, a woman tripped and fell on two uneven slabs of concrete that made up the sidewalk. She filed a lawsuit against the City of Saginaw, claiming that it should be held liable for her injuries because the city was negligent in failing to repair the sidewalk. In a pre-trial deposition, she claimed that she did not know how long the sidewalk had been in that condition, but she believed it to have been like that for at least 30 days. In addition to her testimony, she provided photographs taken 30 days after her fall, showing the uneven surface.

August 4, 2016

Court Determines Parking Lot Placed Across Dangerous Street May Give Rise to Landowner Liability

by Sidney Schupak, Esq.

Businesses and other property owners owe a duty to those whom they invite onto their premises to keep and maintain a safe property. The level of care owed to a visitor depends in part on the relationship between the landowner and the guest. For example, a customer of a business is owed a more substantial duty than an unknown trespasser.

This duty is in place irrespective of the type of property, meaning that private property owners owe a duty, just as does the government, and so do non-profit organizations. In a recent case in front of a California appellate court, the court had an opportunity to discuss how far liability can extend in premises liability cases alleging that the landowner was negligent in the placement of a parking lot.

Vasilenko v. Grace Family Church: The Facts

Grace Family Church was located on a busy five-lane highway. Since the church’s parking lot would often fill up, the church arranged to use another parking lot across the highway when the primary lot filled. While parking attendants were present in both lots to direct traffic, there was no one available to assist churchgoers in crossing the busy five-lane highway to get back to the church from the parking lot.

July 27, 2016

Appellate Court Extends Liability in Car Accident Case to Adult Who Knowingly Allowed Minors to Consume Alcohol on Her Watch

by Sidney Schupak, Esq.

Earlier this month, a Maryland appellate court issued a landmark decision involving how far liability can extend in a case in which an adult knowingly allows a minor to consume alcohol, which later contributes to a fatal accident. In the case of Kiriakos v. Phillips, the court held that any adult who knowingly allows minors to consume alcohol may be held liable in a negligence action for any injuries sustained related to the minor’s consumption of alcohol.

The Facts of the Case

Kiriakos v. Phillips was actually two cases consolidated on appeal because they presented very similar issues. The companion case, Dankos v. Stapf, illuminates the issue presented to the court in a simple manner. Dankos was at a friend’s house drinking. When Stapf, the friend’s mother, came home, she asked some friends to leave but allowed a number of them to stay. Several of the friends who were permitted to stay were underage. The teens were drinking in the garage while Stapf was in the kitchen. The evidence presented at trial indicated that Stapf knew they were drinking, went to check on them several times, and even declined to do anything after her daughter expressed concern that several of the teens might be driving in their intoxicated condition.

On the next morning, while still intoxicated from the night before, Dankos and a friend left the Stapf house and were tragically involved in an accident. Dankos was killed in the accident, and his parents filed a negligence lawsuit against Stapf, arguing that her negligence contributed to their son’s death.

July 20, 2016

Recreational Use Statute May Prevent Accident Victims from Holding Negligent Landowners Responsible

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in a premises liability lawsuit brought by a man who was permanently paralyzed after he dove into a state-owned pond, breaking his neck. In the case, Roy v. State, the court ultimately dismissed the plaintiff’s claim against the government, based on the state’s recreational use statute.

Recreational Use Statutes in General

A recreational use statute is a legislatively enacted law that acts to prevent injured accident victims from holding certain property owners financially responsible. Specifically, the recreational use statute grants immunity to those who open their land for the general enjoyment of the public. In order for the doctrine to apply, the landowner must not be receiving a fee from the people using the land.

In Virginia, the recreational use statute requires qualifying property owners to remain free of liability for any dangerous condition on their land unless the owner acts with “gross negligence” or a “willful or malicious failure to guard or warn against a dangerous condition.”