Virginia Injury Lawyers Blog

April 11, 2018

Virginia Court Rejects Product Liability Case Based on Plaintiff’s Failure to Establish Defective Design

A Virginia appellate court recently issued a written opinion in a Virginia product liability case discussing a plaintiff’s burden in establishing a defective design claim. Ultimately, the court concluded that the plaintiff’s claim was insufficient as a matter of law, and it dismissed the case.

The Facts of the Case

The plaintiff worked at a factory. He was trained on a folder-gluing machine, and to earn some extra money, he cross-trained on another vehicle that was similar to a forklift. While the plaintiff completed some of the training to operate the forklift, he did not obtain certification to use the vehicle.

One day, the factory was especially busy, and the plaintiff’s supervisor asked him to operate the forklift. The plaintiff agreed and began unloading boxes of paper from a trailer. In order to do this, the plaintiff had to drive the forklift up a ramp and into the trailer. During one of the trips, the forklift got caught between the ramp and the trailer.

April 2, 2018

Court Discusses Admissibility of Plaintiff’s Social Media Account

by Sidney Schupak, Esq.

The issue of the admissibility of social media posts is in Virginia personal injury cases has recently become a hot topic. Across the country, courts have come up with different methods of handling this sensitive information. Earlier this month, an appellate court issued a written opinion in a personal injury case presenting the court with the opportunity to discuss whether a plaintiff’s private social media account should be made available to the defendant.

The Facts of the Case

The plaintiff sustained a serious brain injury after falling off a horse that was owned by the defendant. As a result of the fall, the plaintiff claimed that her active lifestyle was curtailed, due to the limitations from which she now suffered. As evidence of these limitations, the plaintiff explained that she used to be very active on social media, but she closed her account six months after the accident because she was having a difficult time composing messages and writing posts.

After hearing this, the defendant sought access to the plaintiff’s private Facebook account. The defendant did not request access to the entire Facebook, just pictures from before and after the accident, as well as the length of the messages the plaintiff sent after the accident. Apparently, the defendant wanted to see if the plaintiff’s claims that she could not effectively compose messages were verifiable.

March 26, 2018

Federal Appellate Court Finds Parents’ Presence Mitigates Defendant’s Duty in Recent Premises Liability Case Involving Young Child

by Sidney Schupak, Esq.

Earlier this month, a federal appellate court issued a written opinion in a premises liability case presenting an interesting issue that frequently comes up in Virginia premises liability cases. Specifically, the case considered whether the presence of a young child’s parents can act to mitigate any duty that was owed to the child by the defendant landowner. Ultimately, the court concluded that it can, and it dismissed the plaintiff’s lawsuit against the defendant.

The Facts of the Case

The plaintiff in the case was a young child who was seriously injured while visiting the defendant coffee shop. According to the court’s recitation of the facts, the young child was accompanied by his parents. After the family ordered their food and drinks, they went upstairs to use the restroom before leaving. On the way out, the parents heard one of their two young sons screaming.

As it turns out, a metal pole that was used to create the line leading up to the cash register had fallen on the young boy’s hand. The boy was taken to the hospital, but doctors were unable to save the boy’s finger, which had to be amputated.

March 19, 2018

Court Precludes Defense Expert from Testifying in Recent Spa Injury Case

by Sidney Schupak, Esq.

Earlier this month, an appellate court issued an opinion in a personal injury case dealing with the admissibility of expert witness testimony. The case is important to Virginia personal injury plaintiffs because the law governing the admissibility of expert testimony in Virginia is similar to the law applied by the court in this case. The case also illustrates the importance of securing an experienced, reliable, and credible expert witness.

The Facts of the Case

The plaintiff planned on having a chemical peel procedure performed at the defendant day spa. Prior to the procedure, the plaintiff filled out a questionnaire indicating that she suffered from rosacea. The aesthetician at the day spa failed to review the plaintiff’s questionnaire and performed the chemical peel.

After the procedure, the plaintiff’s skin condition began to worsen. She later filed a personal injury lawsuit against the aesthetician and the day spa, claiming that their negligence resulted in her rosacea worsening. The defendants admitted that the aesthetician was negligent, but they claimed that the worsening of the plaintiff’s skin condition was not necessarily caused by their negligence.

March 11, 2018

Virginia Appellate Court Reverses Plaintiff’s Jury Verdict Based on a Lack of Causation Testimony

by Sidney Schupak, Esq.

Earlier this year, an appellate court issued a written opinion in a Virginia medical malpractice case requiring the court to determine if the plaintiff presented sufficient evidence that the defendant’s alleged negligence was the cause of the plaintiff’s injuries. The court considered the evidence presented by the plaintiff, and it ultimately determined that there was a gap in testimony. As a result, the jury verdict rendered in the plaintiff’s favor was reversed.

The Facts of the Case

The plaintiff was a patient of the defendant doctor and arranged to have a laparoscopic hysterectomy performed. The defendant went over the risks of the procedure, and the plaintiff acknowledged the risks and opted to proceed nonetheless.

As a part of the procedure, the defendant needed to insert a small tube into the plaintiff’s abdomen. The first time the defendant attempted to do this, she realized it was too close to one of the organs in the abdomen, so she removed the tube and tried to insert it in a different location.

March 5, 2018

Obviousness of the Hazard in Virginia Premises Liability Cases

by Sidney Schupak, Esq.

In premises liability claims, the plaintiff must present evidence of each element in order for a judge to submit the case to a jury. If a plaintiff fails to establish each element of his claim, the judge will grant a defense motion for summary judgment, if made.

One element that is frequently contested in premises liability cases is the obviousness of the hazard. Obviousness is less an element of a claim than it is a defense. Essentially, if a defendant in a premises liability case can establish that the hazard that caused the plaintiff’s injuries was open and obvious, the plaintiff’s case will be dismissed.

A recent case illustrates how a plaintiff’s knowledge of the hazard that caused his injuries can defeat the plaintiff’s claim.

February 26, 2018

Bad-Faith Insurance Claims Following Virginia Car Accidents

by Sidney Schupak, Esq.

Every motorist in Virginia is required to obtain a certain amount of car insurance. The idea behind this requirement is to ensure that anyone injured in a Virginia car accident will have a means of recovering compensation to help them cover the costs of the injuries they sustained in the accident.

Car insurance companies, however, operate on a for-profit basis and rely on taking in more money in monthly premiums than they pay out in approved claims. Thus, it is not uncommon for an insurance company to deny borderline cases in hopes that the accident victim will not file a personal injury lawsuit.

Virginia lawmakers have enacted a law to discourage insurance companies from acting in bad faith, contained in the Code of Virginia section 8.01-66.1. Under section 8.01-66.1, an insurance company that is found to have denied “a claim of $3,500 or less in excess of the deductible” in bad faith is liable to the insured for double the amount otherwise due. This law applies both to the insured that is named in the policy as well as to any third parties injured by the insured’s negligence.

February 20, 2018

What Injury Victims Need to Know About Virginia’s Recreational Use Statute

by Sidney Schupak, Esq.

As a general rule, landowners owe a duty of care to those whom they allow onto their property. The extent of any duty owed is dependent on several factors, including the purpose of the visit as well as the relationship between the parties. Perhaps the most common example of a Virginia premises liability lawsuit is when a customer is injured while shopping at a business.

A recent case illustrates a different type of premises liability lawsuit. In this case, a young girl was seriously injured after she fell nearly 30 feet after slipping between the bleachers at a youth football game. The girl’s parents filed a premises liability lawsuit against the city, which operated the stadium, claiming that the city was negligent in the construction of the bleachers and also for failing to warn visitors of the dangers that were present.

The city claimed that it could not be held liable under the state’s recreational use statute. Specifically, the statute prevented anyone from holding a landowner liable if their injury occurred while engaging in recreational activity. In order for the statute to apply, the landowner cannot charge a fee for the use of their land. However, in this case, the city charged the plaintiffs $2 admission into the game, but did not charge their daughter any admission fee because she was under six years old at the time.

February 8, 2018

Court Rejects Medical Malpractice Plaintiff’s Case Based on Lack of Expert Witness Testimony in Support of Her Claim

by Sidney Schupak, Esq.

In Virginia medical malpractice cases, the issues presented to the jury are often of a complex nature that may be beyond the understanding of the average juror. For that reason, Virginia lawmakers passed Virginia Code section 8.02-20.1, which outlines when expert witness testimony is required.

The idea is that in cases in which there are complex issues beyond the understanding of the average juror, an expert in the field can view the facts and present their opinion. Unlike the opinion of lay witnesses, an expert’s opinion can be used by the jury as substantive evidence.

Under section 8.02-20.1, an affidavit of support from a qualifying expert is required in all medical malpractice cases. However, “if the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience,” an expert is not needed. This leaves two questions for prospective medical malpractice plaintiffs. First, is a claim truly one of medical malpractice? And second, if it is a medical malpractice claim, are the issues presented within the range of a jury’s common knowledge? A recent appellate opinion wrestles with these issues.

February 1, 2018

Court Applies the “Continuing Storm Doctrine,” Dismissing Slip-and-Fall Plaintiff’s Case

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in a personal injury case, raising an important issue that frequently comes up in Virginia slip-and-fall cases. Specifically, the court was tasked with determining whether a business owner was reasonable in waiting until a storm passed to clear ice deposited by the storm. Applying what has come to be known as the continuing storm doctrine, the court determined that the business owner was entitled to wait a reasonable time until after the storm to clear any snow or ice left behind.

The Facts of the Case

The plaintiff was employed as a driver for a retirement home. Primarily, the plaintiff operated a shuttle van that was used to transport residents. On one particularly rainy and cold day, the plaintiff stopped to get gas at the defendant gas station at around 7:00 a.m. At this point in time, the gas station had been open for about an hour.

As the defendant exited the shuttle to fill up the gas tank, he slipped on a patch of ice that was undisputedly caused by the freezing rain. As it turns out, moments before the plaintiff slipped and fell, a gas station employee had fallen on the ice. The employee notified her supervisor of the ice and arranged for a third-party snow-removal company to clear the ice. Of course, the ice was not cleared by the time the plaintiff fell.