Virginia Injury Lawyers Blog

November 24, 2020

Recovering Compensation Through a Virginia Wrongful Death Claim

We trust our doctors and health care providers to keep us safe—especially when we’re at our most vulnerable and not feeling well. This, however, is not always the case, and instances of Virginia medical malpractice can have serious consequences. When such incidents cause injuries or even death, those who are responsible must be held accountable.

In a recent Virginia Supreme Court opinion, the court had to consider the merits of a wrongful death claim. The deceased was admitted to a local Virginia hospital because she was experiencing nausea, vomiting, and abdominal pain. After an abdominal CT scan, multiple doctors examined the decedent’s results and eventually sent her home. Later in Kentucky, she was admitted to the hospital again when she experienced severe abdominal pain. The doctors at this hospital performed an initial surgery, which was followed by multiple other surgeries to treat other stomach and abdominal issues in the following two months. Eventually, the decedent died “as a result of complications directly related and attributable” to the initial surgery she underwent in Kentucky.

Following the decedent’s passing, the executor of her estate brought claims in both states. In Virginia, he brought wrongful death claims against the doctors who initially treated the deceased and discharged her. The executor of the decedent’s estate argued that the Virginia hospital and the physicians who treated the deceased were negligent and their failure to identify and treat the deceased’s abdominal issues was a proximate cause of her death. The lower court dismissed the executor’s claims, finding that because he received a settlement in Kentucky, he was ineligible to receive damages from a wrongful death claim in Virginia.

January 29, 2019

Spoliation of Evidence in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

During the discovery phase of a Virginia personal injury case, each of the parties can request that certain evidence is provided by the opposing side. As a general rule, parties must provide evidence when it is requested and ordered by the court, even if the evidence at issue is harmful to the case of the party who possesses it.

Given this reality, it may be tempting for a party who is in possession of adverse evidence to alter or destroy it. The legal term for the destruction or alteration of evidence is spoliation. Of course, the spoliation of evidence is prohibited, and parties who are found to have spoliated may face serious sanctions. One common sanction is an instruction to the jury allowing the jurors to take an adverse inference from the missing evidence. A recent case discusses this issue in detail.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured in a slip-and-fall accident while a resident in the defendant nursing home. Evidently, the plaintiff’s fall was caught on video, which the nursing home administration was able to view several times. However, the nursing home did not preserve the video, and eventually, it was recorded over.

January 22, 2019

The “Duty” Element of a Virginia Personal Injury Case

by Sidney Schupak, Esq.

When someone is injured due to the alleged negligence of another, the injured party may be able to pursue a claim for compensation under the legal theory of negligence. To succeed in a negligence claim, a plaintiff must be able to establish four elements: duty, breach, causation, and damages.

The “duty” element is easily met in many Virginia personal injury cases, especially those involving injuries that occurred as a result of a car accident. This is because all Virginia motorists have a general duty to safely operate their vehicle within the confines of the law. However, in other contexts, a plaintiff must present evidence establishing that the defendant owed the plaintiff a duty of care.

A recent federal appellate opinion illustrates the concept of a legal duty. In that case, the plaintiff was a truck driver who was injured when another employee allegedly ran over his foot while loading the plaintiff’s truck with a forklift. The forklift, which was owned by the plaintiff’s employer, did not have a back-up alarm. The plaintiff’s employer had contracted with the defendant maintenance company to perform all necessary maintenance on the machine, including preventative maintenance.

January 14, 2019

Employer Liability in Virginia Motor Vehicle Accidents

by Sidney Schupak, Esq.

After a Virginia motor vehicle accident, those who were injured in the collision can pursue a claim for compensation against the parties whom they believe were responsible for causing the accident. In almost all cases, Virginia car accident lawsuits are filed against another motorist and are defended by the motorist’s insurance company. However, Virginia accident victims should not assume that the only liable party is the other driver; it may be that the driver’s employer is also responsible for any injuries.

Under the doctrine of respondeat superior, a Virginia accident victim can pursue a claim for compensation against a negligent motorist’s employer. To establish such a claim, a plaintiff must show that 1.) there was a “master and servant” relationship between the motorist and the employer, 2.) that the employee was acting within the scope of his employment at the time of the accident, and 3.) the employee was in the process of carrying out his employer’s business. A recent state appellate decision illustrates the type of scenario where employer liability may be appropriate.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured while he was riding as a passenger in a pick-up truck that was being driven by his father. The accident was allegedly the plaintiff’s father’s fault and occurred while the two were driving to a family reunion. The truck that the plaintiff’s father was driving was provided by his employer, the defendant.

January 10, 2019

Virginia’s Contributory Negligence Rule May Make Recovering after a Slip-and-Fall Accident Difficult

by Sidney Schupak, Esq.

Virginia is one of only a few states that still applies the common-law doctrine of contributory negligence. Under a contributory negligence analysis, a plaintiff who bears any responsibility for the accident resulting in their injuries is precluded from recovering from any other at-fault party. Thus, in any Virginia personal injury lawsuit, a plaintiff who is found to be just 5% at fault for an accident can be barred from recovering for their injuries against a party who was 95% at fault, as an example.

As noted above, most other states have shifted away from the contributory negligence doctrine and implemented a comparative fault rule. Under a comparative fault analysis, an at-fault plaintiff will be permitted to recover for their injuries regardless of their own fault. However, a plaintiff’s total recovery amount will be reduced by their percentage of fault. Some jurisdictions apply a “pure” comparative fault rule, allowing a plaintiff to pursue a claim regardless of their own percentage of fault; however, most states use a “modified” rule, allowing only those plaintiffs to recover who are less than 50% at fault.

Virginia’s contributory negligence law applies in almost all negligence cases, and often leads to relatively harsh results. However, contributory negligence is especially difficult to overcome (although far from impossible) in Virginia premises liability cases. This is because a defendant in a Virginia slip-and-fall case may be able to defeat a plaintiff’s claim by showing they were even the slightest bit at fault. For example, this may be done by arguing that a plaintiff was not looking out where they were going or by not wearing appropriate footwear.

December 28, 2018

Court Discusses “Dead Man’s Statute” in Recent Virginia Car Accident Case

by Sidney Schupak, Esq.

Recently, a state appellate court issued an opinion in a Virginia car accident case discussing the state’s “dead man statute.” The dead man statute, contained in Code of Virginia section 8.01-397, provides guidance on how courts should handle cases where one party is incapacitated or has died since the events giving rise to the case.

The Facts of the Case

According to the court’s opinion, the plaintiff claimed he was injured when he was rear-ended by the defendant. The plaintiff filed a personal injury lawsuit against the defendant, but before the case reached trial the defendant died. The plaintiff’s case proceeded against the defendant’s estate.

Evidently, the defendant conceded liability for the accident, and the only issue for the jury to decide was whether the plaintiff was entitled to any damages and, if so, what amount. The plaintiff, who had been involved in several previous car accidents and had a lengthy history of pre-existing medical conditions, testified that the defendant was going at least 20 miles per hour at the time. The plaintiff sought $500,000 in damages, claiming that as a result of the accident she required an additional back surgery.

December 18, 2018

Court Affirms $3 Million Verdict in Recent Truck Accident Case, Illustrating Common Issues That Arise in Virginia Truck Accident Litigation

by Sidney Schupak, Esq.

Recently, a state appellate court issued an opinion in a personal injury case requiring the court to determine if a jury’s $3 million verdict in favor of the plaintiff was proper given the evidence presented at trial. After reviewing the evidence as well as the defendants’ specific claims, the court affirmed the judgment. The case is important to Virginia personal injury plaintiffs because it illustrates several issues that frequently arise in Virginia truck accident cases.

The Facts of the Case

According to the court’s opinion, the plaintiff was driving a van with four passengers inside. As the plaintiff approached a construction zone, he noticed that there was a large construction vehicle pulled off to the right side of the road. The plaintiff realized as he got closer that the vehicle was actually in his lane. Thus, the plaintiff crossed over the double-yellow line to overtake the vehicle. However, as the plaintiff was passing it, the vehicle made a sharp left turn, colliding with the plaintiff’s van. The plaintiff was seriously injured as a result of the accident and filed a personal injury lawsuit against the driver of the construction vehicle, as well as that driver’s employer.

After the accident, the plaintiff requested that the defendants preserve the construction vehicle, and the defendants agreed. However, when the plaintiff arrived to inspect the vehicle, parts of the vehicle had already been removed and were in the process of being repaired.

December 11, 2018

Court Determines Plaintiff’s Misuse of Product Precludes Subsequent Product Liability Lawsuit

by Sidney Schupak, Esq.

When someone is injured by a dangerous or defective product, they may be entitled to monetary compensation through a Virginia product liability lawsuit. Virginia product liability cases can be complex, as there are several different types of claims that can be brought. In a recent product liability case, the court discussed how a plaintiff’s incorrect use of the product that caused their injury can defeat a plaintiff’s claim.

The Factual Scenario

Per the court’s recitation of the facts, the plaintiff owned a product called a die-grinder that the defendant manufactured. The grinder came with an instruction manual, describing how to safely use the tool. The manual warned users to always wear safety glasses when using the tool and to only use attachments that were rated above 25,000 RPM (revolutions per minute). The manual also warned users to only use the cut-off attachment if a safety shield was installed on the tool. The tool wasn’t equipped with a safety shield, and nowhere in the manual did the manufacturer inform users where to obtain a safety shield.

The plaintiff was assisting a friend with a project that required the use of the grinder’s cut-off wheel attachment. The plaintiff attached a cut-off wheel that was rated at only 19,000 RPM to the tool, which was not equipped with a safety shield. The plaintiff was wearing prescription glasses at the time, which he thought to be sufficient protection.

December 4, 2018

Court Dismisses Plaintiff’s Medical Malpractice Case Due to Lack of Expert Affidavit

by Sidney Schupak, Esq.

Recently, a state appellate court issued an opinion in a medical malpractice case illustrating the importance of expert testimony in Virginia medical malpractice cases. The case required the court to determine if the plaintiff’s case should proceed to trial although the plaintiff had failed to provide sworn expert testimony in support of her claim. Ultimately, the court concluded that the plaintiff could not prevail based on the lack of sworn expert testimony and dismissed her case.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff visited the defendant medical center to undergo knee surgery. The surgery was uneventful, but afterward, the plaintiff suffered from a shortness of breath. A doctor ordered an x-ray and kept the plaintiff at the medical center for the next few days before she was discharged.

Apparently, two days after she was discharged, the plaintiff noticed that her shortness of breath was worsening and was later admitted to another medical center. While at that center, the plaintiff was diagnosed with pneumonia and doctors believed that she had suffered a stroke over the past few days. The plaintiff filed a medical malpractice lawsuit against the defendant medical center.

November 29, 2018

Landowner Determined Not to Be Liable for Accident Caused by Untrimmed Foliage

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case discussing an interesting issue that may come up in a Virginia car accident case. The case presented the court with the opportunity to consider whether a landowner could be held liable for an accident that was allegedly caused by untrimmed trees on the landowner’s property obstructing motorists’ view of an adjacent intersection. Ultimately, the court rejected the plaintiff’s argument that the court should impose such a duty on landowners and dismissed the plaintiff’s case.

The Facts of the Case

According to the court’s written opinion, the defendant owned land adjacent to an intersection where the plaintiff and another motorist were involved in a car accident. The plaintiff died as a result of the injuries he sustained in the crash. The plaintiff’s estate filed a wrongful death lawsuit against the defendant landowner.

Evidently, a law enforcement official investigating the scene of the accident determined that neither of the motorists applied the brakes or attempted to avoid the collision. The investigator concluded that each of the motorist’s view of the intersection was obstructed by foliage that was on the defendant’s property.