Premises Liability

October 5, 2017

Statutes of Limitations in Virginia Personal Injury Cases

When someone is injured due to the alleged negligence of another party, the injured party may be entitled to compensation for their injuries from the at-fault party through a Virginia personal injury case. All personal injury cases, however, must be filed within a certain amount of time. If a plaintiff files their case after the applicable statute of limitations has expired, the court will have no choice but to dismiss the case.

Often, when a Virginia personal injury case is filed more than two years after the date of the injury, there is significant litigation over statutes of limitations. This is because the general statute of limitations for all Virginia personal injury cases is two years. Of course, in some cases, there are exceptions to the two-year rule, but these exceptions are rarely obvious and often must be determined by the courts.

A recent appellate court opinion illustrates the difficulties two plaintiffs encountered when they filed a personal injury lawsuit after the two-year statute of limitations.

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.

April 26, 2017

Track-and-Field Accident Results in $350K Settlement

by Sidney Schupak, Esq.

Earlier this month in Oklahoma, a $350,000 settlement was reached in favor of a woman who was seriously injured at a track-and-field meet held at a local school. According to a news source covering the case, the woman and her husband were attending the meet as spectators and were standing in a section that had been fenced off and specifically designated as a place for people to watch the event. However, during the meet, a student athlete threw a discus that traveled into the spectator area and struck the plaintiff.

The object that struck the plaintiff was a standard 3.5-pound discus that was plastic with a metal core. As a result of the incident, the 83-year-old woman suffered serious injuries, including a traumatic brain injury.

The woman and her husband filed a premises liability lawsuit against the school district as well as the Nebraska State Activities Association, alleging that the organizations failed to keep spectators safe. Specifically, the plaintiff and her husband claimed that there was not a sufficient barrier between the athletes and the spectators, that the organizations failed to warn spectators about the dangers involved, and that there was no safe area to observe.

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 10, 2017

Federal Appellate Court Determines Government Is Immune from Liability for Bicycle Accident Occurring in National Forest

by Sidney Schupak, Esq.

Earlier this month, a federal appellate court issued a written opinion in a case that arose from a bicycle accident that occurred on federally owned land. Ultimately, the case presented the court with the opportunity to determine whether the government was immune from liability under the doctrine of sovereign immunity, which protects the discretionary acts of governments and government employees. Since the court determined that the alleged acts of negligence were discretionary, the court upheld the government’s sovereign immunity.

The Facts of the Case

The plaintiff was riding her mountain bike in the De Soto National Forest. She did not look at the bulletin board at the trail head, which had a warning that the Couch Loop Trail was closed. The plaintiff and her friend continued down the Couch Loop Trail, eventually taking an alternate route off the main trail. This alternate route led the bikers to an area with various ramps, or “jumps.” The ramps were not built by the U.S. Forest Service, and the Forest Service claimed to have no knowledge of their existence.

The plaintiff rode over one of the ramps and fell, resulting in a serious injury. She filed a premises liability lawsuit against the federal government, claiming that the government was negligent in maintaining the land and also negligent in failing to warn her about the dangerous conditions. The plaintiff claimed that government immunity did not apply in this instance, since the acts of the rangers were ministerial. A ministerial act is one that does not involve the exercise of discretion.

February 22, 2017

Proof of Causation Is Imperative in Virginia Slip-and-Fall Cases

by Sidney Schupak, Esq.

Property owners across the State of Virginia owe a duty to those whom they invite onto their land. The extent of that duty depends on the relationship between the parties. However, as a general rule, if someone is invited onto the property of another party and slips and falls due to a hazardous condition, they may have a case for damages against the property owner.

One common requirement for all premises liability lawsuits is that the injured party must be able to establish that the landowner’s negligence was the cause of their injuries. This is called the causation element. A recent case illustrates how a plaintiff’s inability to prove causation can be fatal to a premises liability lawsuit.

A Slip-and-Fall Accident Inside a Fast-Food Restaurant

The plaintiff in the case was a woman who was attempting to visit a fast-food restaurant. Like many businesses, the restaurant’s entrance consisted of two sets of double doors, with a small foyer between them. The plaintiff entered the first set of doors without a problem, but as she tried to open the second set of doors, she was unable to do so. She jiggled the door with no luck. She then started to shake the door, trying to open it, and the next thing she knew, she was on the floor. After she fell, she noticed that the ground around her was damp due to the rain outside.

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.

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 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.

October 17, 2016

A Business’ Obligation to Keep Its Customers Safe

by Sidney Schupak, Esq.

Under the theory of premises liability, business owners have an obligation to ensure that the customers they invite into their stores are kept reasonably safe. In fact, customers of a commercial enterprise are known as “invitees” under the law and enjoy the highest level of protection. This means that businesses must use reasonable care to ensure that their business is reasonably safe. Included in this duty is the requirement that business owners warn customers of any potential hidden dangers on the premises, such as spills, holes, or uneven pavement.

In order for an injured party to hold a business liable for a “hidden danger,” the accident victim must establish that the business owner had knowledge of the danger to begin with. This can be proven through evidence showing that the business had actual knowledge of the danger, or evidence showing that the business should have known about the danger, given the surrounding facts. A recent lawsuit filed by an Ohio woman who was injured while at the supermarket shows how this can play out in real life.

A Woman Is Struck by a Motorized Grocery Cart

Earlier this month, a jury returned a $1.3 million verdict in favor of a woman who was seriously injured at the defendant’s grocery store after she was struck by a motorized grocery cart being operated by another customer. According to an industry news source reporting on the case, the 71-year-old woman was struck by the cart and tossed approximately four feet, where she struck her head on a shelf.