Virginia Injury Lawyers Blog

December 11, 2018

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

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.

November 20, 2018

Plaintiff Injured by Closing Elevator Doors Permitted to Proceed with Claim Against Condo Association

by Sidney Schupak, Esq.

Recently, a state appellate court issued an opinion in a personal injury case discussing a doctrine of law that is rarely used in Virginia personal injury cases, but it is important nonetheless. The case involves the application of a doctrine called res ipsa loquitor, which can be used to permit a jury to make an inference that a defendant was negligent despite a lack of evidence showing the defendant acted negligently.

The Res Ipsa Loquitor Doctrine

The term res ipsa loquitor is Latin for “the thing speaks for itself,” and refers to a legal doctrine that may apply in cases where there is no direct proof that a defendant was negligent, but that the plaintiff’s injuries are such that they would not likely have resulted absent the defendant’s negligence.

The classic example of the res ipsa loquitor doctrine is the plaintiff who injured after a box falls on him while he is walking alongside a factory. In such a situation, the plaintiff would have no way of knowing where the box came from, who it belonged to, and why it fell. Thus, if the plaintiff filed a claim against the factory, he may be able to proceed under the doctrine of res ipsa loquitor because boxes do not ordinarily fall from factory windows.

November 13, 2018

Virginia’s “One Bite” Rule Makes Recovering After an Animal Attack Difficult, But Not Impossible

by Sidney Schupak, Esq.

After decades of dog owners vying for designer breeds, animal rescues across the country have become full of the “less desirable” breeds or animals that are of unknown descent. While scientists have for the most part rejected the idea that certain breeds or mixes of breeds are inherently dangerous, an animal’s upbringing is believed to have a significant impact on its personality. Thus, dogs that have been raised without a steady home or shelter, or have been subject to abuse, are more likely to lash out randomly.

Recently, the trend across the country has been to focus more on adopting those animals that need a home, rather than shell out hundreds or thousands of dollars for a designer breed. And while this certainly is a welcome change, some pet owners are unaware of an animal’s propensity to attack until they bring them home.

In the event of a dog attack, the owner of the dog may be liable for the injuries caused by their animal. However, Virginia dog bite law employs the “one bite rule,” which makes it difficult for the those bringing a case against an animal’s owner to succeed.

November 5, 2018

Hit-and-Run Car Accident Case Proceeds Towards Trial Solely on Circumstantial Evidence that the Defendant Was Driving

by Sidney Schupak, Esq.

Earlier this year, a state appellate court issued a written opinion in a personal injury case discussing whether the plaintiff’s claim against the defendant, which was based almost exclusively on circumstantial evidence, should be permitted to proceed towards trial. The case is important to Virginia personal injury plaintiffs because it illustrates the importance of circumstantial evidence and that circumstantial evidence can be just as convincing as direct evidence.

Direct Evidence vs. Circumstantial Evidence

Evidence can be broken down into two main categories: direct and circumstantial. Direct evidence tends to prove an assertion without any necessary inferences. For example, if an eyewitness sees a crime occur, the eyewitness’ testimony that the defendant committed the offense would be considered direct evidence.

Circumstantial evidence, on the other hand, requires at least one inference be made to prove an assertion. For example, fingerprints that are found at the scene of a crime would be circumstantial evidence that the defendant was at one time present at the crime scene and may have committed the crime. Both types of evidence can be equally persuasive, depending on the evidence itself, as well as the surrounding circumstances.

October 26, 2018

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

by Sidney Schupak, Esq.

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.