Personal Injury Law

July 11, 2017

Evidence of “Other Similar Incidents” in Product Liability Lawsuits

When someone is injured while using any kind of product, they may be able to seek compensation for their injuries through a product liability lawsuit filed against the manufacturer, distributor, or retailer of the product. In many cases, these lawsuits do not require that a plaintiff establish that the named defendants knew about the alleged defect; however, additional damages may be available if a plaintiff is able to prove that the defendant knew about the defect and failed to correct it.

One key issue in many product liability cases is the availability and admissibility of “other similar incident” evidence, or OSI evidence. OSI evidence is important for product liability plaintiffs to understand, and it can be very persuasive because it may show that a defendant manufacturer should have known about the alleged defect, based on the other reported incidents. However, courts are careful about admitting OSI evidence because it may complicate matters for the jury and can result in undue prejudice. A recent case illustrates how plaintiffs in a recent car accident case were able to admit OSI evidence.

The Facts of the Case

The plaintiffs were stopped at a red light on a highway off-ramp when they were rear-ended by another motorist who was driving a 1996 Toyota Camry. The Camry was traveling at approximately 75 miles per hour when it rear-ended the plaintiffs. Two of the five plaintiffs in the vehicle were killed as a result of the accident, one sustained a traumatic brain injury, one was left a paraplegic, and the final plaintiff suffered a broken leg.

July 5, 2017

Summary Judgment in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

Virginia courts see tens of thousands of cases each year. If each of these cases was presented to a jury, the court system would get bogged down, resulting in cases taking several years to be heard. Thus, Virginia courts only allow cases to be presented to a jury when there is an important and disputed fact that the jury must resolve. However, if the issues presented in a case are legal in nature, a judge can make the decision through a process called summary judgment.

Virginia’s Summary Judgment Standard

In Virginia, either party can move for summary judgment, asking the court to find in their favor without the necessity of going to trial. This can save considerable time and expense; however, summary judgment is only appropriate 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.” In determining whether summary judgment is appropriate, a court will look at the parties’ pleadings and proffered evidence. A recent motorcycle accident case illustrates a situation in which an appellate court agreed with the lower court that summary judgment was appropriate.

The Facts of the Case

The plaintiff was the surviving wife of a man who was killed in a motorcycle accident. On the day of the accident, the motorcyclist was driving eastbound on the highway in the far-right lane of travel. The defendant pulled up to the intersection, heading northbound on a perpendicular street, and was waiting to make a left turn across the highway to head westbound.

June 26, 2017

Court Determines Accumulated Rainfall May Constitute Dangerous Condition, Depending on Surrounding Circumstances

by Sidney Schupak, Esq.

While all landowners and business owners have a duty to ensure that their property is safe for those whom they invite onto their land, there are limitations to this duty. One of the most common limitations that courts impose on a landowner’s duty to keep his premises safe involves dangerous conditions that are readily apparent to guests.

The rationale behind this limitation is that an injured party should not be permitted to seek compensation for their injuries if they were aware of the dangerous condition that ultimately caused their injuries. A recent case illustrates how a state appellate court was asked to apply this limitation on a landlord’s duty, but it declined to do so.

The Facts of the Case

The plaintiff was a college student. On a clear and sunny day, she was dropped off at school by her father. She entered the building where her first class was and attended class. During her first class, the weather outside changed, and it began to rain. However, the plaintiff was not aware of the change in the weather because the classroom where she was did not have any windows.

June 2, 2017

Court Determines a Plaintiff’s Alleged Negligence Is Not Relevant in Crashworthiness Case

by Sidney Schupak, Esq.

Virginia courts apply the doctrine of contributory negligence when determining which parties will be able to seek damages following an accident. Under the doctrine of contributory negligence, an accident victim’s negligence can completely bar their ability to receive compensation for their injuries. This is even the case if the plaintiff is just 5% responsible for the accident.

Whether an accident victim is considered “at fault” is usually a matter for the jury to determine. However, a recent case out of South Carolina held that a plaintiff’s potential negligence is not relevant to cases claiming that a vehicle was not safely designed to withstand the force of an accident.

The Facts of the Case

The plaintiff was a passenger in a Chevy Pick-up truck being driven by a friend. The two had been smoking synthetic marijuana and were driving on the highway when the driver ran a stop sign. As the pick-up truck entered the intersection, it was struck by another vehicle that had the right-of-way.

May 25, 2017

Appellate Court Discusses the Admissibility of Prior DUI Convictions in Recent Car Accident Case

by Sidney Schupak, Esq.

In Virginia personal injury trials, the presiding judge has the power to determine which evidence the jury can consider. In doing so, the judge must consult with the rules of evidence, which are passed by the state legislature. As a general rule, only evidence that is relevant to the case may be considered. However, not all relevant information is admissible.

Relevant evidence may be inadmissible for a number of reasons. For example, hearsay evidence is generally excluded. Similarly, evidence that is very prejudicial to one party may be excluded even if it is technically relevant. In a recent car accident case, the court was tasked with determining whether a defendant’s two prior convictions for driving under the influence were admissible.

The Facts of the Case

The plaintiff was on his way to work when he was involved in a head-on collision with another motorist, who was driving home from a bar. That driver was later determined to have a blood-alcohol content of .18, which is over twice the legal limit.

May 17, 2017

Appellate Court Applies “Firefighter’s Rule” in Dismissing Personal Injury Case

by Sidney Schupak, Esq.

Earlier this month, an appellate court affirmed the dismissal of a plaintiff’s personal injury case because the court determined that the plaintiff was injured while she was acting as a firefighter. Applying the “firefighter’s rule,” which was codified in a state statute, the court explained that the defendants were immune from liability because the plaintiff’s injury resulted “from the condition of fire protection or firefighting equipment or facilities.”

The Facts of the Case

The plaintiff was a firefighter who was called out to fight a wildfire that had gotten out of control. Since the wildfire was rapidly spreading, many firefighters were called out to assist. The temporary barracks that were set up for firefighters filled up, and the plaintiff sought approval to set up camp in the infield of a racetrack that was acting as the center of operations. The plaintiff’s supervisor granted her permission to set up camp in the infield.

On the first night, there were no problems. The plaintiff woke up and fought the fire all day before returning. On the second night, however, a truck that was delivering water ran over the plaintiff, resulting in serious injuries. The plaintiff filed a personal injury lawsuit against the driver of the truck and several other defendants.

May 10, 2017

Tire Manufacturer Withholds Evidence, Although Court-Imposed Fine Reversed

by Sidney Schupak, Esq.

Earlier this month, the United States Supreme Court issued a written opinion in a product liability lawsuit brought against tire manufacturing giant Goodyear. While the Supreme Court’s decision reversed a $2.7 million fine assessed by the lower court, the Court ordered the lower court to recalculate the figure.

The Pre-Trial Discovery Process

After a lawsuit is filed, but before the case is heard by a jury, the parties go through the discovery process, in which each side exchanges documents, witness lists, and other potential evidence. As a general rule, a party must disclose all requested relevant evidence to opposing counsel, even if that evidence may be detrimental to the party’s case. A party’s failure to comply with a discovery request may result in sanctions imposed by the court.

The Facts of the Case

The plaintiffs owned a motor home that was equipped with Goodyear tires. While the plaintiffs were driving the motor home on the highway, a tire blew out, sending the motor home off the road. The motor home flipped over, and several plaintiffs on board were injured. The plaintiffs filed a product liability claim against Goodyear, arguing that the tire was defective because it was not designed to operate at highway speeds.

May 1, 2017

The Importance of Properly Serving All Defendants in Virginia Personal Injury Lawsuits

by Sidney Schupak, Esq.

Before any case can be heard by a judge or a jury, the plaintiff must serve notice of the pending lawsuit to each and every one of the parties named as a defendant. A plaintiff’s failure to properly serve a party may result in a significant delay and may even cause an otherwise meritorious lawsuit to be prematurely dismissed.

In Virginia, there are several requirements that a plaintiff must ensure are met when effectuating service on a defendant. For example, the service must be addressed to the individual named in the lawsuit, or if an organization is named, to a person legally authorized to accept service. Additionally, service must be made by first-class mail, and the packet sent to the defendant must include certain additional information in order to be considered complete. In personal injury cases in which service becomes an issue, it is often because the defendant claims that the wrong person was served. This is especially true when the case is filed against a public or government entity. A recent case shows how important proper service is in personal injury lawsuits.

The Facts of the Case

The plaintiff was involved in an accident with a school bus. The plaintiff claimed that the school bus driver was negligent in causing the accident and filed a personal injury lawsuit against both the driver as well as the school district that employed him. The plaintiff hired a process server, who went to the school district building, asked where service was accepted, and delivered service to the assistant to the Human Resources Director. The plaintiff did not attempt to personally serve the school bus driver.

April 17, 2017

Court Finds Landlord Is Not Responsible for Injuries Caused by Broken Handrail in Common Area of Apartment Building

by Sidney Schupak, Esq.

Earlier this month, an appellate court in Rhode Island issued a written opinion in a premises liability lawsuit brought by a man who was injured while he was helping a friend move a large piece of furniture. According to the facts as presented in the court’s opinion, the plaintiff slipped and fell down a spiral staircase after he placed his weight on a handrail. As the plaintiff placed his weight on the handrail, the railing snapped, causing the plaintiff to lose his balance and fall down through the center of the spiral staircase.The plaintiff brought a premises liability lawsuit against his friend’s landlord, claiming that the landlord had failed to keep the railing – which was in a common area of the apartment building – in a reasonably safe condition.

The Evidence Presented at Trial

The plaintiff was the only witness to testify at trial. The plaintiff explained that he was trying to move a large piece of furniture down the stairs, but the landing was very small, so he had to position himself partially down the stairs. In doing so, it was necessary to place “just a little bit of pressure” on the rail.

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.