Virginia Injury Lawyers Blog

October 26, 2018

Virginia Court Discusses the Duty a Vacation Rental Property Owner Owes to Guests

Earlier this month, a state appellate court issued an opinion in a Virginia premises liability lawsuit discussing the extent of the duty that owners of a vacation rental home owe to their guests. Ultimately, the court concluded that the duty owed by a vacation rental homeowner is the same as the duty a landlord owes a tenant. In so holding, the court rejected the plaintiff’s argument that the duty imposed on the defendant should be coextensive with that of an innkeeper.

The Facts of the Case

According to the court’s opinion, the plaintiff’s family rented a property in Virginia Beach that was owned by the defendants. The rental agreement was for one week, which is typical for the vacation rental houses in Virginia Beach. The house came fully furnished, and the property management company provided linens upon check-in.

Evidently, as the plaintiff was carrying a bin of linens into the home, she tripped on the raised transition strip between the carpet and tile flooring. The plaintiff fell to the ground and seriously injured her toe, which required two subsequent surgeries.

October 18, 2018

Court Discusses Employer Liability in Recent Distracted Driving Case

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case discussing an important and frequently misunderstood issue that commonly arises in Virginia car accident cases. The case required the court determine whether a plaintiff’s claim against an employer could proceed towards trial despite direct evidence that the employee was not engaged in work-related activities during the accident.

Ultimately, the court concluded that a plaintiff must provide actual evidence to rebut direct evidence to survive a summary judgment challenge and merely questioning the credibility of the defendant’s witness is not sufficient to give rise to a disputed fact.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff was injured in a car accident that occurred when another motorist struck her vehicle. The other driver was on the phone at the time of the accident, speaking with a friend from work.

October 10, 2018

Virginia Accident Victims and the Importance of Reading All Settlement Agreements Closely

by Sidney Schupak, Esq.

According to the most recent estimates, approximately 95% of civil cases are resolved through pre-trial settlement negotiations. While it may seem that an attorney’s assistance is not necessary with the chances being so high that a case will not make it to trial, the exact opposite is true. Virginia personal injury attorneys are crucial to negotiating favorable settlement offers, and ensuring that the terms of the offer are fair to their client.

A settlement agreement is a contract between the parties. Most often, the agreement is that the plaintiff will withdraw their case against the defendant and in return, the defendant will provide some amount of compensation to the plaintiff. Normally, the amount of compensation provided to the plaintiff is less than it would likely be if the plaintiff were to succeed at trial; however, the plaintiff is provided with the certainty that they will be recovering a given sum for their injuries

Virginia personal injury plaintiffs should take care in executing a settlement agreement because these are binding contracts. A recent case illustrates one potential problem that a plaintiff may face when executing a settlement agreement with some, but not all, of the potentially liable parties.

October 3, 2018

Court Rejects Plaintiff’s Slip-and-Fall Case against City

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case involving a plaintiff’s injuries that were sustained while riding his bike in a public park. The case presents an important issue for Virginia premises liability plaintiffs in that it discusses the concept of recreational-use immunity, which also applies in Virginia.

The case required the court to determine whether the plaintiff’s case should be permitted to proceed against the city that was responsible for maintaining the park, or if the park was entitled to recreational-use immunity. Ultimately, the court determined that the city was entitled to recreational-use immunity because the plaintiff failed to establish that the city knew of the hazard that caused his fall.

The Facts of the Case

According to the court’s opinion, the plaintiff fell off his bike and was seriously injured after striking a pothole while riding on a trail in a public park that was maintained by the defendant city. The plaintiff filed a premises liability case against the city.

September 28, 2018

Accident Victims Can Stack Underinsured Motorist Policies in Virginia

by Sidney Schupak, Esq.

In a recent case, a state appellate court denied a plaintiff’s claim against an insurance company based on the fact that the state where the claim arose precluded accident victims from stacking their insurance policies. In that case, the insurance company had approved and paid out on a similar claim filed by the plaintiff a few years earlier. However, the court held that the insurance company’s previous error in paying out on the plaintiff’s claim did not mean that the insurance company was prevented from raising the anti-staking defense in the more recent case.

Had this case been brought in Virginia, the insurance company would not be able to raise the anti-stacking defense because Virginia allows accident victims to stack multiple insurance policies. Stacking allows for accident victims to combine the policy maximums from multiple policies, up to the point where they are able to recover fully for their injuries they sustained.

Without Insurance Policy Stacking

If an accident victim sustained $300,000 in a car accident in a state that does not allow stacking, and the at-fault motorist’s insurance policy has a policy maximum of $100,000, and the plaintiff’s own policy has a maximum of $150,000, the plaintiff will be able to recover the following:

$100,000 from the at-fault motorist’s policy, and
$50,000 from the accident victim’s policy

September 19, 2018

$4 Million in Punitive Damages Awarded in Nursing Home Claim

by Sidney Schupak, Esq.

In any Virginia personal injury claim, a plaintiff not only has to prove that the defendant acted with negligence or intent, but also that the plaintiff sustained compensable damages. In some cases, a defendant’s conduct may be so egregious that the plaintiff may be able to recover punitive damages in addition to compensatory damages. Punitive damages are generally very substantial, as they are designed to deter similar future conduct.

In one recent case, a court upheld an award of punitive damages of over $4 million in a nursing home neglect case. The plaintiffs brought their claims against a nursing facility after three residents died at the facilities in a “vent unit.” The vent unit was designed for ventilator-dependent patients. The plaintiffs claimed that the residents died due to inadequate staffing and a lack of supplies in the vent unit.

The evidence presented indicated that one resident’s breathing apparatus was detached without any alarm going off. Another resident was found dead with his ventilator and its alarms turned off. The third resident’s tracheostomy tube was not properly replaced after it had been removed by nursing home staff. The plaintiffs claimed that all three deaths were caused by inadequate staffing and a lack of supplies.

September 13, 2018

Court Discusses Instructor’s Duty and Potential Liability in Recent Yoga Injury Case

by Sidney Schupak, Esq.

In a recent personal injury opinion, a state appellate court discussed the duty that a yoga instructor owed to the plaintiff, who was taking a class from the instructor when she was injured as the instructor adjusted her during a pose. The case is important for Virginia personal injury victims because it illustrates the type of analysis a court engages in when evaluating whether a defendant breached a duty of care that was owed to the plaintiff.

The Facts of the Case

The plaintiff took a yoga class that was taught by the defendant instructor. During the class at several different times, the plaintiff claimed that the defendant instructor made several adjustments to her body that caused her pain. These adjustments included putting a belt around the plaintiff’s waist to pull her hips in line, applying downward pressure on her lower back while in “cow” pose, and twisting her neck to both sides.

At the time, the plaintiff did not tell the defendant that the adjustments were causing her pain, nor did she ask him to stop. Later, the plaintiff filed a personal injury lawsuit against both the instructor as well as the yoga studio.

September 7, 2018

Virginia Product Liability Cases

by Sidney Schupak, Esq.

Product manufactures are required to ensure that the products they release to market are safe for their intended use. This means that when someone is injured due to a dangerous or defective product, they may be entitled to monetary compensation through a Virginia product liability lawsuit.

There are three basic theories under which a Virginia product liability claim can be filed: design defect, manufacturing defect, and failure-to-warn. In some cases, all three claims can be made. The first two types of claims are fairly self-explanatory. However, failure-to-warn claims are a little more complicated. A recent federal appellate case discusses the plaintiff’s failure-to-warn claim against a crane manufacturer.

The Facts of the Case

The plaintiff was a crane operator working on a job that required he move the bow of a large boat. In order to move the bow, the plaintiff worked with two other operators to perform a tandem lift, where the three cranes would work together to move the bow. Initially, the move went according to plan; however, mid-way through the lift the plaintiff’s crane shifted out of place.

August 31, 2018

Court Discusses Whether Employer’s Insurance Company Was Liable for Damages Caused by Employee’s Drunk-Driving Accident

by Sidney Schupak, Esq.

The determination of whether an insurance company is responsible to defend the at-fault party in a Virginia car accident case is often a critical issue because the at-fault party frequently will not have sufficient assets to fully compensate the plaintiff for the injuries they have sustained. In the event that an accident is covered under an insurance policy, the insurance company will cover the costs of the accident, meaning that the plaintiff will more likely be able to collect should the case be resolved in their favor.

Recently, a state appellate court issued an opinion in a personal injury case raising an important insurance issue that frequently arises in Virginia car accident cases. The case required the court to determine if an employer’s insurance policy covered an accident caused by an intoxicated employee.

The Facts of the Case

The defendant was traveling for work when he caused a traffic accident that injured the plaintiff. At the time of the accident, the defendant was driving a company owned vehicle, although he was not on the clock at the time and was not performing any work-related activity. It was later determined that the defendant was intoxicated.

August 22, 2018

The Importance of Following the Procedural Requirements in Virginia Personal Injury Lawsuits Naming Government Defendants

by Sidney Schupak, Esq.

For nearly the first two hundred years of the nation’s history, state and federal governments could not be held liable in a lawsuit brought by a citizen unless the government entity being named as a defendant specifically consented to being sued. In effect, this insulated the government from acts of its employees, leaving those who were injured as a result of a government worker’s negligence without any real means of recourse.

In the mid-20th century that began to change with the passage of the Federal Tort Claims Act (FTCA). The FTCA provided a legal mechanism for those who had been injured due to the negligent or wrongful act of a government employee to seek compensation for their injuries. In the wake of the FTCA, states began to follow, passing their own versions of the law. The Virginia Tort Claims Act was passed in its current form in 1981, and is contained in Virginia Code, Title 8.01 sections 195.1 to 195.12.

In order to bring a lawsuit against a government entity under a tort claims act, the conditions of the act must be followed. In most cases, tort claims acts require plaintiffs to provide adequate notice to the government entity being sued and pursue their case in a timely manner. A plaintiff’s failure to file these rules precisely will almost certainly result in the dismissal of their lawsuit. A recent case illustrates how courts strictly interpret the procedural requirements of tort claims acts.