Virginia Injury Lawyers Blog

February 10, 2016

Courts Affirm Verdict Against Plaintiff in Traction-Control Lawsuit Against Automaker

The Supreme Court of California recently released a ruling that affirmed a verdict for the defendant in a lawsuit filed against a vehicle manufacturer that had not included electronic traction control on a standard model truck that was being driven by the plaintiff when he was involved in a crash. The plaintiff in the case of Kim v. Toyota Motors was in a crash, and he claimed that it would have been prevented by an electronic traction control (or ESC) system that was included on more expensive models of Toyota trucks but not the standard model involved in the accident. The plaintiff argued that the manufacturer’s failure to include the option on the truck he was driving constituted a design defect, and he requested damages as a result.

The Plaintiff’s Allegation that ESC Would Have Prevented His Injuries

In April 2010, the plaintiff was driving a 2005 Toyota Tundra on a two-way road in California when he claims that he was forced to drive into the gravel median to avoid crashing into an oncoming driver who had entered his lane. According to the Court’s recitation of the facts, the plaintiff lost traction and oversteered the vehicle after entering the gravel median, eventually losing control and rolling the vehicle into an embankment. The plaintiff suffered serious injuries in the crash.

While presenting the case, the plaintiff argued that Toyota was able to include traction control on the vehicle involved, and if there were a traction control system included on his vehicle, he would have avoided the accident and injuries that were suffered.

February 3, 2016

The Enforceability of Liability Release Waivers in Virginia Courts

by Sidney Schupak, Esq.

When someone joins a gym or engages in any type of pay-to-play activity, such as bungee jumping, skiing, or river rafting, the company providing the service will often request that the person sign a liability release waiver before participating in the activity. These waivers most often contain fine print and are rarely read word-for-word, but they do contain important information about the rights that the person participating in the activity is giving up.

For example, most liability release waivers will absolve the provider of any liability that could normally arise from the negligent conduct of the business or any of its employees. This may act to prevent someone who is injured while engaging in the activity from seeking compensation for their injuries, even though the business may have been negligent in creating or failing to correct a hazard.

Liability waivers are not always enforceable, however. Virginia courts will normally uphold waivers only as long as they are appropriate and do not go beyond their permissible scope. For example, a company will not normally be permitted to ask a customer to release the company from liability for the reckless or intentional acts of its employees. A liability release waiver that attempts to do so will likely be determined to be invalid.

January 27, 2016

Court Denies Request for Punitive Damages and Imposes Sanctions Against Plaintiffs

by Sidney Schupak, Esq.

Earlier this month, an appellate court affirmed a lower court’s denial of a request for punitive damages and actually sanctioned the plaintiffs for pushing for the damages despite no good-faith reason for doing so. The case illustrates that, while punitive damages may be appropriate in some cases, it is not wise to seek them in every case without a basis for doing so.

The Facts of Smizer v. Drey

In the case, Smizer v. Drey, the plaintiff was injured after being involved in an accident with the defendant. According to the court’s written opinion, the defendant failed to yield at an intersection and collided with the plaintiffs’ vehicle. After the collision, the plaintiffs filed a lawsuit against the defendant, seeking compensatory and punitive damages. Regarding the punitive damages, the plaintiffs claimed that the defendant “engaged in extreme and outrageous conduct in operating her motor vehicle in conscious disregard of the traffic laws of this State.”

From the outset, the defendant admitted that she was at fault for failing to yield at the intersection, but she contested the plaintiffs’ request for punitive damages. The defendant claimed that there was no basis for the punitive damages claim, and the plaintiffs were only seeking punitive damages because they hoped to use the threat of punitive damages as a bargaining chip to get the defendant to settle the lawsuit.

January 20, 2016

Couple Sues Auction House after Wife Injured in Slip-and-Fall Accident

by Sidney Schupak, Esq.

Businesses and organizations have a legal responsibility to maintain safe premises for members of the public who have been explicitly or implicitly invited onto the premises while they are engaging in business or the location is otherwise open to the public. Under Virginia law, a person who enters a business while it is open is known as an “invitee” to the premises when the visit is of common interest to the business owner and the visitor. In such a case, a business owner has a duty to use reasonable care to maintain the premises in a reasonably safe condition, as well as to warn the invitee of any hidden dangers that are known to the landowner. If someone is injured by a dangerous condition as an invitee, they may be entitled to compensation.

Woman Falls on a Wet Floor While Touring an Auction House

According to one local news source, a married couple recently filed a West Virginia slip-and-fall lawsuit against an auction house, alleging that the owner of the premises did not exercise due care in keeping the premises safe. According to a local news report, the woman alleges that she was injured when she slipped and fell on a wet floor, and that there was not an appropriate warning to alert her to the hazard. The lawsuit is seeking damages for bodily injuries, pain and suffering, mental anguish, loss of enjoyment of life, and medical expenses. The suit also claims the woman’s husband has suffered a loss of spousal consortium and is also entitled to additional damages.

January 13, 2016

The Dangers of Fatigued Driving in Virginia

by Sidney Schupak, Esq.

Whenever anyone gets behind the wheel of a car, the potential for harm is always present. Whether it be another driver’s mistake, a pedestrian who crosses at an unmarked intersection, or a truck driver who was not paying attention to the road ahead of them, the bottom line is that driving can be a very dangerous activity, one that requires the complete attention of the person in control of the vehicle.

However, despite the dangers inherent in driving a car, truck, or motorcycle, motorists continue to push their own physical limits by trying to stay awake in order to “make good time” or avoid the cost of a hotel. In fact, the National Highway Traffic Safety Administration estimates that there are about 100,000 accidents caused each year by drowsy driving. This results in approximately 1,550 fatalities annually. One startling statistic revealed that approximately 37% of drivers admitted to falling asleep behind the wheel at one time or another.

Given the dangers involved with drowsy driving, those who get behind the wheel when they are too tired to safely operate a vehicle may be considered legally negligent. When such negligence causes an injury to another motorist or pedestrian, the drowsy driver may be held liable through a civil negligence lawsuit brought by the injured party or their loved ones.

January 6, 2016

Court Determines Hospital Slip-and-Fall Is Not a “Medical Malpractice” Case

by Sidney Schupak, Esq.

Earlier last month, a State Supreme Court issued an opinion reversing the lower court’s dismissal of a plaintiff’s claim, based on the fact that the plaintiff failed to comply with the procedural requirements of a medical malpractice claim under the state’s laws. In the case, Galvan v. Memorial Hermann Hospital System, the Supreme Court of Texas ultimately determined that since there was not a sufficient nexus between the alleged injury and the hospital’s provision of health care, the case was not subject to the heightened requirements of a medical malpractice case.

The Facts of the Case

In Galvan v. Memorial Hermann Hospital System, the plaintiff was a woman who was visiting a relative at the defendant hospital. The plaintiff was walking from the hospital’s pharmacy to her relative’s room when she slipped on a puddle of water that was coming from under a restroom door. The woman filed a lawsuit against the hospital, seeking compensation for her injuries.

In response, the hospital asked the court to dismiss the case because the plaintiff failed to submit an expert report, as is required under state law for all medical malpractice cases. The lower court denied the hospital’s motion, but the intermediate court reversed that decision. The plaintiff then appealed to the state’s supreme court.

December 28, 2015

Court Finds Jury’s Pain-and-Suffering Damages Award Inconsistent with Its Medical Expenses Award

by Sidney Schupak, Esq.

Earlier this month, a state supreme court decided a case that required the court to examine the two types of awards that are available in personal injury cases and determine if the two were consistent. In the case, Bryant v. Rimrodt, the court ultimately determined that the jury’s determination that the plaintiff was entitled to $1 for his pain and suffering was inconsistent with the finding that he sustained almost $17,000 in medical expenses.

The Facts of the Case

In the case, Bryant v. Rimrodt, the plaintiff was a car salesman who was injured while riding as a passenger in a test-drive with a customer. According to the court’s written opinion, the customer made an illegal left-hand turn and collided with another vehicle. As a result of the accident, the salesperson briefly lost consciousness and was taken to the hospital. He was treated by numerous physicians, with varying diagnoses, none of which was particularly serious. In fact, several treating physicians told the plaintiff that there was no physiological reason for his pain. However, he continued to suffer from back, neck, and shoulder pain. In the following year, the salesman filed a lawsuit against the customer.

After a jury trial, the customer driving the car was found to be at fault, and the plaintiff was awarded roughly $17,000 for medical expenses he had already incurred. However, when it came to damages for his pain and suffering, the jury awarded the plaintiff nothing. Both parties agreed that there had to have been some amount of pain and suffering, given the medical treatment the plaintiff sought. Therefore, the judge sent the jury back into deliberations with instructions to reconcile the verdict. The jury then returned a nominal damages award of $1. Not satisfied with the verdict, the plaintiff asked for a new trial. The judge denied the plaintiff’s request, and then he appealed.

December 21, 2015

Hospital Doctors May Be Liable to Third Parties for Failing to Warn Their Patients that the Drugs They Were Given May Affect Their Driving

by Sidney Schupak, Esq.

Earlier this month, an appellate court in New York issued an opinion in a case that discussed the liability that may arise when a doctor at a hospital administers medication to a patient and then releases the patient without any warning that the medication provided may affect their driving. In the case, Davis v. South Nassau Communities Hospital, the plaintiff was not the patient of the doctor but was a third party who was injured in a car accident involving the patient.

The Facts of the Case

A woman (“the Patient”) went to the hospital for treatment. As part of her treatment, she was given opioid pain medication and a benzodiazepine. Less than two hours later, the doctors discharged the Patient. On her way home, the Patient crossed a double-yellow line and collided with a bus being driven by the plaintiff.

The plaintiff filed suit against the treating physicians as well as the hospital that employs them, arguing that the defendants were negligent in failing to warn the Patient that the medication she recently ingested could affect her driving. In an pre-trial proceeding, the defendants asked the court to dismiss the case against them, arguing that the only duty they had was to the Patient, and that duty did not extend to third parties such as the plaintiff.

December 14, 2015

Contact Sports and Traumatic Brain Injuries

by Sidney Schupak, Esq.

Earlier this year, a federal judge approved a settlement between the National Football League and a group of over 500 players, each of whom alleged that their participation in the league caused them serious long-term injuries. The crux of the players’ claim is that the NFL failed to adequately warn the players of the serious risks involved and also failed to take the adequate precautionary measures when head injuries were sustained on the field.

These repeated head injuries can lead to a condition called chronic traumatic encephalopathy (CTE), which is a degenerative disease of the brain. One complication in the lawsuit is that CTE is only diagnosable posthumously, meaning after the player has died. Thus, the living players can only proceed with evidence that they have the symptoms of CTE, which include aggression, depression, parkinsonism, suicidality, and dementia.

The NFL’s Duty to Look Out for Its Players

The class of plaintiffs consists not just of living players but also of family members of deceased players. The case proceeds under a legal theory under which an employer, in this case the NFL, has a duty to warn employees that the job they are performing has a serious risk of injury. Additionally, the group of plaintiffs claims that when head injuries did occur on the field, the NFL furthered a policy of encouraging players to get back on the field as soon as possible. This, the class alleges, further increased the risks involved of developing a long-term and irreversible diagnosis, such as CTE.

December 7, 2015

U.S. Supreme Court Discusses Foreign Sovereign Immunities Act as It Applies to Personal Injury Cases

by Sidney Schupak, Esq.

Earlier this month, the United States Supreme Court handed down a decision interpreting the Foreign Sovereign Immunities Act. In the case, OBB Personenverkehr AG (“OBB”) v. Sachs, the Court determined that the “commercial activity” exception to the Act’s general grant of immunity to foreign governments did not apply to the specific facts presented. As a result, the plaintiff’s case was dismissed.The Facts of OBB Personenverkehr AG v. Sachs

The plaintiff in OBB Personenverkehr AG v. Sachs was a California woman who had purchased a Eurorail pass here in the United States from a U.S. retailer for her plans to travel in Europe. While she was in Austria, however, the woman was seriously injured due to the alleged negligence of OBB, which is wholly owned by the Austrian government. The plaintiff filed suit against OBB in a U.S. federal district court.

In a pretrial motion, OBB cited the Foreign Sovereign Immunities Act and asked the court to dismiss the case.