West Virginia Injury Lawyer Blog

Nursing home negligence happens far too frequently, not only in West Virginia, but also across the country. This blog has discussed several different cases, and how the structure of certain nursing home contracts may affect your ability to file a lawsuit over your loved one's injury or death. Recently there was another case of alleged nursing home negligence in Charleston. Edward Morton filed a lawsuit on behalf of his female family member, who suffered injuries as a result of her 10-day stay at a nursing home facility run by Beverly Enterprises, Inc.

Morton alleges that the nursing home staff failed to provide their patient with enough fluid to prevent dehydration, and had no plan in place to treat her risk of dehydration. The nursing home staff also allegedly failed to provide proper care when inserting the catheter, which would have reduced her risk of infection. As a result of the staff's failure to provide proper care, their charge suffered a urinary tract infection. Morton argues that the patient's stay at the nursing home facility caused her bodily injury and resulted in pain and suffering, mental anguish, physical impairment, loss of capacity to enjoy life, medical expenses, and other costs and hardships. Morton seeks a monetary award in the form of compensatory and punitive damages.

Abuse and neglect in nursing home facilities should be taken seriously. Nursing home staff are charged with providing care to a largely older population that is highly vulnerable, with both health and mental difficulties. Nursing home staff need to be able to give these people proper care that their families do not have the knowledge or resources to provide. For the staff to permit a resident in their care to go hungry, become dehydrated, or to become injured, even to the point of death, is unacceptable.

In the above case, it appears that there was no barrier to filing a lawsuit. However, in many cases, nursing homes have inserted arbitration clauses into contracts, and there has been a question as to whether these clauses are considered valid and enforceable. Arbitration clauses typically state that if the two parties to the contract have a dispute, rather than one party filing a lawsuit, the parties agree to settle their disputes in arbitration. Arbitration is frequently less formal than court and less expensive -- yet at the same time, it also has fewer safeguards. The arbitrator may not be someone versed in the law, such as a former judge or lawyer, but instead may simply be a layperson. Moreover, if the party providing the contract chooses the arbitration company, the company may come to favor that party as a way of earning repeat business. Finally, arbitration decisions can be very hard to appeal, whereas most decisions are subject to appeal in court. The West Virginia Supreme Court has found that certain nursing home arbitration clauses are unconscionable -- weighing far too heavily against one party -- and are therefore not enforceable.

If you have a loved one who was injured or killed as a result of actions taken by nursing home staff, you should be able to hire a West Virginia personal injury attorney and file a lawsuit against the facility, its parent company, and whoever else had responsibility. Your loved one's health and safety matters above all else.

An exciting, but highly risky, sport is gaining supporters in West Virginia and its neighboring states: extreme races. More than one million participants each year clamor to be a part of races that, on any given day, may contain obstacles ranging from mud pits to electric wires to climbing walls. Each extreme race tries to outdo the other, creating ever more daunting courses. Not surprisingly, the more challenging these races become, the more likely they are to lead to injuries, fatalities, and lawsuits.

For example, one West Virginia race led to a person drowning during an obstacle known as Walk the Plank, which was a 15-foot drop into muddy, cold water. Other participants in that race -- as many as 19 -- were treated for heart attacks, electric shock, and hypothermia. During another race held in Richmond, Virginia, a man sustained injuries after diving into a mud pit that left him paralyzed.

Following the drowning death, Tough Mudder's spokesperson claimed that the company reviewed the safety procedures and found them to be satisfactory. Yet some argue that these races -- which include the popular Tough Mudder, Warrior Dash, and Spartan races -- have nominal supervision, and that people are mistaken to believe that these races are safe. Some obstacles are modeled after military training regimes, and the organizers do not realize how little room for error there is. In addition, there is currently no federal or state regulation of these events, and so far there has been no push for government oversight.

While overall, the amount of injuries remains small, that still has not stemmed concerns. Although organizers attempt to prevent lawsuits by requiring participants to sign a waiver beforehand, these waivers are not always enforceable. A waiver is not valid if it is too broad, stating that the person may never sue, or if it can be shown that the organizers were reckless according to the laws of that state. In any event, the waivers have not stopped lawsuits by many who were injured or who lost a loved one to one of the races. For instance, the man in Virginia who was paralyzed claimed that the mud pool was shallower than it appeared, that there were no warning signs posted as to the pool's depth, and that the race organizers encouraged diving. A participant in a different race are also filing lawsuits after she hit a pile of rocks after sliding on a tarp down a hillside, breaking several bones in her ankle. She needed to have 13 screws inserted and walks with a limp.

It is true that many people are drawn to the danger element in these races, wanting to test themselves against extreme elements like fire. However, these are not real extreme events, but simulated obstacles on property owned or rented by someone else, for which the participants pay money. The event organizers need to have standards in place to prevent serious injury or to help those whose life or health is at risk. In this situation, the race participants are known as "invitees," business guests on the property or members of the general public. Property owners or renters have strict obligations to invitees, including warning or preventing hazards that they should have known about based on reasonable inspection. If you are a guest on someone else's property and are injured through no fault of your own, you should not hesitate to hire a West Virginia premise liability attorney and file a lawsuit. The unfortunate thing with these races is that many people were likely within their rights to sue, but were frightened off by the waivers they had to sign.

Last month, this blog discussed a case involving a teenager's family suing a local softball league after the girl broke her leg sliding into a base. The family claimed that before the accident occurred, the then-14-year old girl was reluctant to slide, but was urged on by her coach. The girl ended up breaking her ankle, tibia, and fibula. In their lawsuit, the family sued not only the coach, but also the Martinsburg-Berkeley County Softball League, arguing that the girl and others were not properly supervised and that the field did not conform to regulation requirements. While the coach was eventually dismissed as a defendant from the lawsuit, the claims against the Martinsburg-Berkeley County Softball League have remained.

Recently the Softball League filed a motion for summary judgment, seeking to have the case dismissed on the grounds that the girl's parents were aware of the risks when they let her play and that they were only filing the suit because the girl could not become a nurse, as she wanted to be. Motions for summary judgment are filed after a point in the lawsuit where both sides have conducted "discovery," or sought evidence that would give weight to either side's arguments. The party who files the motion for summary judgment is arguing that there is no issue of genuine fact -- meaning that there is no dispute requiring a trial -- so judgment against the other party should be issued as a matter of law. The one who files the motion is usually the defendant in the case, but it can also sometimes be the party who filed the case.

Here, the West Virginia personal injury attorney representing Martinsburg-Berkeley County Softball League argued that the girl's family's argument -- that because of her injured ankle, she would not be going to nursing school -- was weak and not borne out by the facts. The defendant argued that the girl, now a young woman, "walks all day at school," drives herself, and does not otherwise consider herself to be disabled. The young woman was on her way to complete her pre-nursing course work and had already been accepted to a nursing school. However, during a final exam, she allegedly dealt with ankle and back pain more severe than expected. A life care expert had previously stated during a deposition that the young woman could have a career as a nurse with physical limitations, which could reduce her potential earnings. The defendant claimed that those earnings were "speculative" since one day of difficulty was enough to make the young woman decide that she could not be a nurse.

The defendant also argued that because at the time the girl had been told by a chiropractor not to do anything strenuous for two weeks to a month, that she went into the softball practice knowing the risk to her physical health.

The outcome will depend upon what arguments the girl's attorney makes against the motion for summary judgment. The Martinsburg-Berkeley County Softball League's motion does not appear to address whether the coach was negligent or whether the field was regulation. Generally, motions for summary judgment are very difficult to win because the burden is on the party that brings the motion to prove that there is no dispute worth trying.

Two men were injured recently by explosions at the Airgas Mid America plant in Putnam County, West Virginia. The source of the explosion may have been 50 cylinders of acetylene, a gas used for welding and torch-cutting metal. Five employees were working in the plant at the time, though it is not clear whether the two injured were among them. The two men were taken to the local hospital with first and second degree burns.

The explosion occurred on Monday afternoon. Witnesses claim that they saw flames shooting out of the plant, and then the sound of the explosions could be heard half a mile away. One local businessman said that he saw "a huge cloud of black smoke and flames" before firemen got the fire under control.

The Airgas Mid America plant housed 100 cylinders of acetylene in all, as well as 76,000 pounds of propylene and roughly 10,000 pounds of propane (both considered to be highly flammable gasses). Companies that produce and store specific quantities of dangerous chemicals must file disclosures about them with the Environmental Protection Agency (EPA), as well as with local emergency officials. The EPA has no record of the amount of acetylene the Airgas plant had stored.

The official cause of the explosions has yet to be discovered, but it is known that the propylene is stored in four small interconnected bulk tanks. The Airgas company claims that the explosions occurred in a concrete cylinder storage area as opposed to the main plant, but that the main plant was evacuated as a precaution.

In such a situation, it hardly needs to be said that those who produce and maintain dangerous, volatile chemicals have the strictest duty not only to the employees working around the chemicals, but also to anyone in the surrounding community. If you are injured by debris or fire from a nearby explosion or other workplace accident, you may have the option of hiring a West Virginia personal injury attorney and filing a lawsuit.

Continue reading "Explosions At a West Virginia Airgas Plant Send Two to the Hospital" »

A West Virginia woman who tripped and injured herself while visiting her daughter in Huntington has sued the company that owns the property, claiming that it failed to properly maintain the premise.

A mother visited her daughter's apartment last May 2011. After returning from an errand, she tripped and fell on what she alleges was uneven, raised payment. The mother claims that in addition to this hazard, the surrounding area was poorly lit, making her unable to identify the problem until it was too late. The mother claims to have suffered serious bodily injury and emotional distress, and is suing for medical expenses, pain and suffering, and various economic and noneconomic damages. After the incident occurred, a representative of the property was informed and corrected the problem by painting the area with brightly colored paint, as well as installing additional lighting.

The mother claims that by so quickly altering the area, the property owner removed evidence that there was a hazard in the first place, hindering the mother's ability to provide such evidence in a lawsuit. She further argues that the property owner was perfectly aware of the mother's potential to sue at the time the hazard problem was remedied.

There are two areas of law at issue here, which are related to an extent: basic premise liability and landlord-tenant responsibilities. Under basic property law landlord-tenant responsibilities, a landlord has a duty to his or her tenants to maintain common and outdoor areas, which means keeping them clean of trash and ensuring that all lights are functioning. It is not clear whether the area where the accident occurred allegedly lacked working lights, or whether it simply did not have any lighting. Regardless, the landlord owed a duty to the mother's daughter, a tenant, to maintain these outdoor areas.

Then there is the basic premise liability duty of a property owner to a licensee. The mother's suit refers to her as an "invitee," but unless she was doing business on the property or the property had been opened to the general public, that was likely incorrect. A licensee is any invited guest on the property who is not there to do business. The property owner's duty to a licensee is still a strict one, if not as strict as his or her duty to an invitee. He or she is required to warn about or make safe known hazards on the property, whereas with an invitee, the property owner must not only warn about or correct known hazards, but also do a reasonable inspection to find any previously unknown hazards.

Continue reading "West Virginia Woman Sues Property Owner For Tripping Hazard At Apartment Complex" »

Recently, a man from Wayne County filed a lawsuit against Twin Silos of Lavelette LLC after suffering an injury from an overturned golf cart.

In 2011, Gregory Farley spent the day at Twin Silos golf course playing golf with his friends. At some point Farley drove a golf cart down a hill, where the cart reached its highest possible speed and finally overturned. Farley ended up pinned under the cart and, he claims, was briefly unconscious. As a result of the accident, Farley claims that he suffered an injury to his elbow and to the left side of his face. Farley also alleges that the accident caused his shoulder to become dislocated and his rotator cuff torn, sending pain up his shoulder and arm.

Farley seeks a monetary award for his medical costs, pain and suffering, substantial annoyance, inconvenience, and aggravation. In his complaint, he argues that the golf course had a duty to customers like Farley to use reasonable care to maintain the premises. The golf course breached that duty by leaving a cable lying on the ground that golf course customers would have trouble seeing. It is unclear whether Farley is also seeking action against the maker or maintainer of the golf cart.

As West Virginia premise liability attorneys know, those who open their property up to paying customers have the strictest duty to make certain that the property is safe. Whereas most guests on someone's property -- such as a friend visiting -- are considered licensees, people on the property for a business purpose, or because the property was opened to the public, are known as invitees. For licensees, the property owner has a duty to warn about conditions on the property that the owner knows are harmful. For invitees: property owners must warn of, or make safe, hazards that the property owner either knew about or should have known about. Not only are property owners bound by these duties, but property possessors are as well.

One issue that will likely come into play is how much Farley himself was responsible for the accident. West Virginia has a tort system in place known as "modified comparative negligence." "Comparative negligence" typically refers to a situation where a plaintiff's injury is caused by the defendant, but the plaintiff is also partially at fault. It replaced a system known as "contributory negligence," where if the plaintiff was even slightly at fault, he or she could not collect. With comparative negligence, the plaintiff can still collect, just less than he or she would have if he or she were completely blameless. In West Virginia's modified comparative negligence system, an injured plaintiff partially at fault can still collect, but only if the fault is less than 50%. Otherwise, he or she stands to get nothing. The golf course might try to argue that there was nothing wrong with the golf cart, and that the cable on the property would not have caused Farley to move down the hill at an excessive speed. Rather, Farley drove the cart much faster than he should have, causing it to overturn, whereas a reasonably prudent person would have driven slower. Who is more at fault will be up to the jury to decide.

In a previous post, we discussed the fact that West Virginia is a "notice pleading" state. Notice pleading is the most common form of pleading in the United States. When the injured party hires a West Virginia personal injury attorney and files a claim, notice pleading requires that the initial complaint have just a "short and plain statement of the claim showing that the pleader is entitled to relief." A complaint meeting these requirements is likely to survive any attempts to dismiss the claim. However, once the claim is allowed to proceed, the next test it faces is surviving a summary judgment motion.

A motion for summary judgment is typically filed after both parties have gone through a "discovery" period, whereby each party requests information about the case from the other. When a summary judgment motion is filed, the burden is on the party that files the motion -- usually the same party who wanted the case dismissed -- to show that no trial is necessary because (1) there are no disputes of material fact and (2) based on the accepted facts, the party that filed the motion deserves to have the judge rule in his or her favor. Since the burden is on the party that files the motion, or the "moving party," the other party only needs to show that there is substantial evidence of a factual dispute, regardless of how solid the evidence turns out to be.

In a recent case, the West Virginia Supreme Court affirmed a circuit court's summary judgment ruling in favor of Grafton Truss and Panel Company after an employee could not provide sufficient evidence that the company caused his injury.

Charles Lucien Hall had claimed that the company was liable for injuries he sustained after a "tripping device" had been put in his path at the company's plant, an extension cord stretched across the aisle. Hall claimed that the cord had been placed there on purpose, resulting in his injury. Hall did not tell anyone about the incident; instead, he just told an unspecified person that he would not be coming to work because his tripping incident caused an injury. Without more evidence that the company intentionally laid out a tripping hazard, the circuit court entered summary judgment against Hall in 2008. Hall then appealed to the state Supreme Court.

However, the Supreme Court found that Hall had a history of failing to report supposed actions taken against him, such as five cases where coworkers allegedly threw drywall at him. Hall could not recall who had thrown the drywall or where the incidents occurred. He was able to identify one culprit, who in 2003 allegedly threw drywall at him, thrust him against a wall, locked him in a closet, and set Hall's nail pouch on fire while he was wearing it. After Hall reported the nail incident, Hall and the other man got into an off-site altercation, which resulted in the other man's arrest and his termination from the company.

Continue reading "West Virginia Supreme Court Affirms Summary Judgment Ruling Against Injured Worker, Citing Lack of Detailed Evidence" »

Even youth sports can be quite dangerous when they are not properly supervised or are performed on a non-regulation field. When a minor is injured as a result, his or her family might then hire a West Virginia personal injury attorney to get relief for the injuries.

This June, a case will be heard in Berkeley County Circuit Court involving a 14-year old softball player who hurt herself in 2010 after her coach allegedly forced her to slide during a drill, even though the softball player did not want to slide and had never done so before. The player ended up crushing her left ankle, tibia, and fibula, which required three surgeries to correct. Her parents, who filed the lawsuit on her behalf, alleged that not only was she forced to slide, but also that the surface of the softball diamond was "hard and unforgiving." A physician, Dr. Benjamin Rezba, wrote that since the accident, the girl has been unable to play any sports and must rest even after walking three blocks.

Since the player's parents filed the lawsuit against the coach, Courtni Williams, and the Martinsburg-Berkeley County Softball League, the case has taken some interesting turns. First, a scheduled witness in the case, Martinsburg High coach Calvin Anthony Russ, was arrested for delivery of heroin. Russ was going to testify that the softball field and diamond were sufficiently maintained and that Williams was qualified to teach Roberts and others to slide. Instead, Russ was arrested last July for allegedly being in a car when a police informant purchased $50 of heroin from his girlfriend. Russ was arraigned two months later on charges of delivery of heroin and conspiracy to deliver heroin. The Martinsburg-Berkeley County Softball League substituted in a local softball coach and a president of Sports and Recreational Consultants as expert witnesses.

Most recently, Williams was dismissed from the case for unspecified reasons, leaving the Martinsburg-Berkeley County Softball League as the only defendant. Williams had previously played softball at two local high schools and later at the collegiate level.

It goes without saying that teachers and coaches have a strict duty of care when it comes to their minor charges. For coaches, that includes ensuring that the venue is safe and appropriate, that there is enough staff to provide proper supervision, that the minors receive proper training, that the minors behave appropriately toward one another, and that any injured minor receives immediate care. It remains to be seen how carefully Williams and any other coach who was present complied. For instance, if they did not bother to inspect the field and diamond beforehand, then they breached their duty of care to Roberts and the other softball players. On the other hand, if they did inspect the field and diamond and thought it satisfactory, then it becomes a question of whether they were, in fact, in satisfactory condition, which is where expert witnesses come in.

Continue reading "West Virginia Girl's Family Sues After Girl Breaks Her Leg During Softball Practice" »

Recently, the West Virginia Supreme Court ruled that a construction company was not liable for a fire in a hotel started by an employee who was off duty. The incident occurred back in November 2010, when Robert Harris, a Powell Construction Company employee, dropped his cigarette in his room at Aracoma Hotel and started a fire. Because Harris was from out of state, he needed to stay in the hotel overnight in order to work on a company project in West Virginia.

Evanston Insurance Company, the Aracoma Hotel's insurance carrier, was forced to pay over one million dollars for the damage caused. This led Evanston to file claims against Powell Construction Company in Logan County Circuit Court, charging it with "respondeat superior" -- that is, vicarious liability -- and negligent hiring. Evanston argued that Powell Construction Company should have seen that Harris had "certain propensities," such as a criminal record and a history as a recovering addict, that made it foreseeable he could cause damage.

The Logan County Circuit Court granted Powell Construction's motion to dismiss, stating that in order for the company to be liable, Harris would have to actually hold himself out as an agent of Powell Construction and to have caused the fire as part of his job duties, within the scope of his employment. Just being at the hotel while an employee of Powell Construction was not enough. Likewise, the circuit court found that Harris's history with drugs and alcohol were not the cause of his dropped cigarette and thus the accident was not foreseeable when Powell Construction hired him.

Evanston petitioned the Supreme Court, arguing that the circuit court committed several errors in reaching its decision, including (1) granting the motion to dismiss when the claims were sufficient to withstand one, (2) finding that Evanston failed to state sufficient facts to support its claim of respondeat superior, and (3) finding that Evanston failed to state a claim of negligent hiring. Evanston argued that its claims were sufficiently stated because West Virginia is a notice pleading state, which means the threshold for stating a plausible claim is fairly low. Notice pleading merely requires "a short and plain statement of the claim showing that the pleader is entitled to relief," as opposed to a higher threshold articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, which required that a claim meet a "plausibility" standard. Under the "plausibility" standard, the complaint must provide "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." Though some states have adopted the Twombly standard, West Virginia is not among them.

The West Virginia Supreme Court reviewed the Logan County Circuit Court's decision and, finding it to be well reasoned, affirmed it.

Continue reading "West Virginia Supreme Court Finds That Company Whose Employee Started Hotel Fire Is Not Liable" »

Recently, a West Virginia woman filed a lawsuit in federal court against Advantage Tank Lines LLC, claiming that one of its drivers was operating a tractor trailer so slowly that she collided with it.

The accident occurred on June 29, 2011. The injured party, Katherine Jean Hartung, was driving in the right lane on Interstate 77 when she encountered Reginald Kenneth Yelverton driving the tractor trailer. Hartung claims that Yelverton failed to drive at or above the 55 mile speed limit. As a result, when Hartung tried to change lanes to avoid the tractor trailer, she ended up striking it, causing significant damage to both the tractor trailer and her own vehicle. Both vehicles ended up having to be towed from the Interstate.

Meanwhile, Yelverton's statement from the accident report was that he was driving at five to 10 miles per hour because the tractor trailer was loaded with asphalt. Hartung argues that Yelverton acted negligent, while Advantage Tank Lines LLC was vicariously liable as Yelverton's employer because Yelverton caused the accident during the course of his duties. Yelverton is accused of violating 17C-6-3a of the West Virginia code, which prohibits driving a vehicle slow enough to impeded the normal flow of traffic unless the reduced speed is necessary to safely operate the vehicle or is in compliance with the law.

Through her attorney, Hartung seeks compensatory and punitive damages for serious bodily injury, pain and suffering, loss of wages, loss of earning capacity, loss of ability to enjoy life, mental anguish, apprehension, loss of dignity and humiliation, and shock and embarrassment, among others.

Hartung may well have a successful case. However, it should be noted that under 17C-6-4, special vehicles not designed to carry passengers may not exceed 40 miles per hour on an "open country highway." Furthermore, West Virginia's driver laws operate under a point system that punishes those who go over the speed limit. However, the point system does not allot points for driving too slowly. Whether Hartung's lawsuit is successful depends on several factors. First, does Yelverton's vehicle qualify as a "special vehicle" per 17C-6-4? Second, was Yelverton's speed necessary to safely operate a tractor trailer filled with gravel on an interstate highway? To settle the question, witnesses who are experts in the industry practices may need to testify. Did the tractor trailer have any reflectors or flashing lights to warn other drivers?

Continue reading "West Virginia Woman Sues Driver of Tractor Trailer For Driving Too Slowly" »

When people think of a workplace injury that merits workers compensation, what usually comes to mind is something like a mining accident or a construction site mishap, where the person has suffered a significant physical injury. That person then receives workers compensation payments, even if the worker was at fault, until he or she has healed enough to return to work. However, it turns out that workers compensation can also be received for seemingly minor injuries, such as carpal tunnel. Recently, the West Virginia Supreme Court found in favor of a speech pathologist who sought workers compensation after suffering from carpal tunnel on the job.

Donna Adkins-Woods claimed that she developed carpal tunnel after continuously performing the typing and hand writing requirements of her job. She then filed for workers compensation in 2010, but the claims administrator rejected her claim. She then appealed to the Office of Judges, which reversed the claims administrator's decision nine months later. This decision was then reversed by the Board of Review in April 2011. The reason given was that Adkins-Woods's occupation was not in one of the categories considered to be at high risk for developing carpal tunnel. In making its decision, the Board of Review relied solely on the claims administrator's finding that being a speech pathologist did not place Adkins-Woods at a higher risk of developing carpal tunnel, as opposed to looking at available medical evidence.

Yet Adkins-Woods had a physician's diagnosis that she had a repetitive strain injury and suffered from carpal tunnel as a result of repetitive hand use while performing her job. An EMG revealed that Adkins-Woods had median nerve neuropathy in both wrists. Because the physician's report and the EMG were the only medical reports on record, the West Virginia Supreme Court sided with the Office of Judges, which found that there was a slight "preponderance of the evidence" that Adkins-Woods had developed carpal tunnel as a result of her occupation. Adkins-Woods is therefore eligible to receive workers compensation benefits.

This is significant because, had she lost, she would not have been eligible to sue her employer for "damages," or a money award, for her pain, medical bills, and lost wages. By law, if an employer has workers compensation insurance, an employee does not have the option to sue that employer in a state or federal court for injuries sustained on the job. That may seem unfair, but on the positive side, it means that the employee can still receive money even if the employee was at fault for the accident -- unless (as noted above) the claim is refused.

That is why people injured on the job usually do not hire West Virginia personal injury attorneys to sue their employers. However, if you were injured on the job and your claim was denied, you can hire an experienced attorney to represent you in your appeals. Also, you have the option of going to court and suing a third-party involved in the accident, such as an equipment manufacturer, an on-sight vendor, or someone offering other services.

A West Virginia woman recently filed a wrongful death lawsuit against a deputy sheriff and the Kanawha County Commission, his employer, claiming that the deputy's careless actions while driving led to her mother's death in 2011.

On October 7, 2011, the woman was driving on Route 60, while her mother was in the passenger seat. As the woman moved to make a left-hand turn onto another road, Deputy Sheriff David Duff came toward them from the opposite direction in a Chevy Malibu. He accelerated slightly to beat a traffic light, and the two cars collided. At some point, shortly before the collision, the woman alleges (and Duff admitted) that he was making a personal phone call without using a hands-free device and could not be sure that he had a green light. The woman's mother was taken to the hospital, suffering from serious injuries to her shoulder, pelvis, and bladder. She died 11 days later.

The woman charges the Kanawha County Commission with negligence, including poor training and supervision. She claims that as a result of the accident and her mother's death, she is suffering from significant emotional distress, mental pain and suffering, loss of physical health, and loss of enjoyment of life. Through her West Virginia wrongful death attorneys, she seeks unspecified damages and interest.

This case appears to be an example of "respondeat superior," or vicarious liability, where the injured party seeks to hold the employer liable, as well as the employee responsible for the injury. An employer is usually found liable in cases of respondeat superior when the employee caused the injury (1) while acting within the time and space of his job, (2) while performing the employee's typical job duties, and (3) while acting to benefit the employer.

Here, it is not clear that the Kanawha County Commission would be found liable under respondeat superior. Deputy Sheriff Duff may have been in the midst of performing job duties, perhaps driving to the scene of a conflict. However, he admitted that shortly before the collision, he had been taking a "personal" phone call, which may have diverted his attention. In personal injury law, an employer is not responsible for the employee's actions if the employee was engaged in a "frolic." A "frolic" is a complete departure from the employee's duties, even if it takes place during the employee's work hours. For instance, if the employee took time off to go visit a friend, that would likely be considered a frolic. By contrast, a "detour" is a slight deviation from the employee's normal work routine, such as taking a longer route to a customer's location for a personal reason, and an employer can still be held liable for an employee's poor decisions during that time.

Continue reading "West Virginia Deputy Sheriff Was Allegedly Taking a Personal Phone Call Prior to Crash That Left One Woman Dead" »

Recently, West Virginia's mine safety director, Eugene White, admitted to state lawmakers that the Office of Miners' Health, Safety and Training was behind in implementing certain legislative mandates. These mandates included better methane monitoring and tougher coal-dust control standards. White's statements were made shortly after three mine workers were killed within a single week.

White noted that the Office was on track to meet another mandate, mine worker drug testing, and that five mine workers had already been stripped of their licenses as a result. However, he had no explanation for why his agency was behind in meeting the other goals. White stated that earlier in the month, the Office had proposed a rule for tougher coal-dust control standards, and that it is now developing plans to cite violations of these standards. Agency officials were also still discussing with both industry and labor how to implement tougher requirements for shutting down equipment whenever explosive levels of methane gas are detected.

While members of the House of Delegates were accommodating of the agency's slower-than-expected progress, some were troubled by the agency's embrace of the mining industry's proposal to just raise penalties for more serious violations, as opposed to an across-the-board increase in safety fines. By contrast, two freshman members of the House who were coal miners objected to the increase in time an apprentice mine worker must work within sight and sound of a supervisor, from 90 days to 120 days. They claimed that it amounted to a "baby sitting service" that interfered with the training of these individuals. The "sight and sound" requirement had come about as a result of a 19-year old mine worker getting killed after the mine company's management permitted him to work underground for three hours at the Jim's Branch 3A Mine. The mine worker died after falling onto a conveyor belt that dumped coal into a chute.

The issues discussed demonstrate how complex the larger issue of mine safety can be. Remedies that you would expect to improve the situation, such as more supervision for apprentice mine workers, might in fact make the situation more difficult. Overall, it is encouraging that the Office of Miners' Health, Safety and Training is serious about stiffening penalties for mining violations. Yet less encouraging are the signs that the Office is more concerned with implementing industry proposals than proposals that might actually harm the mining industry. The drug testing was specifically put into the state mine safety bill last year to appease the industry. Likewise, if the Office increases penalties only for the most serious violations, that does nothing to increase the incentive to avoid more minor violations that could lead to a serious outcome.

Mining is dangerous enough without mining companies cutting corners to save money. Mine workers should be able to expect that their employers have taken every precaution to ensure that they are safe. If your loved one is killed in a mining accident that you believe is due to the mining company's failure to follow safety regulations, you should contact an experienced West Virginia wrongful death attorney and file a lawsuit for rightful compensation.

In West Virginia and in other states across the country, most employers are required to carry workers compensation insurance. If one of their employees should then become injured on the job, he or she would not have the right to sue the employer in court; instead, the employee would collect workers compensation payments for the injury. This can be a good arrangement if the worker was partially at fault for the injury, because employees can receive workers compensation regardless of fault. However, it can be a bad arrangement if the employee believes that the payments are not adequately compensation for an injury, or if the Workers Compensation Office of Judges or Board of Review do not believe that the employee is truly injured. That is when employees typically hire a West Virginia personal injury attorney and file a claim.

In a recent case, the West Virginia Supreme Court affirmed a Workers Compensation Board of Review order denying permanent total disability benefits to a man who had been injured several separate times on the job. The first time, Jerry Lee Easter, a construction worker, got injured after stepping in a hole in 1991. He received workers compensation payments, and nearly three years later, his physician reported that he had reached "maximum medical improvement for his injury." That still left Easter with a 17% impairment for his left lateral thigh, thoratic disc, and cervical spine. The Offices of Judges, which conducts hearings on workers compensation claims, eventually determined that he was 36% permanently disabled.

Then two years later, in 1996, the dump truck that Easter was driving on the job overturned, leaving Easter with a neck injury. Four years later, Easter's physician again found that Easter had reached maximum medical improvement for the injury. The physician determined Easter's previous permanent disability award fully compensated him for the latest injury, but the Office of Judges found that Easter was slightly more disabled, at 38%. Easter also received another 5.5% in payments in 2002, after another physician found a 5.5% whole person impairment for hearing loss, related to another injury on the job.

Also in 2002, Easter's physician, Dr. Bruce Guberman, stated that he could not return to his previous types of employment as a result of his injuries. More significantly, Easter was "permanently and totally disabled for all types of employment."

Others disagreed with Dr. Guberman's findings. In 2004, Dr. Paul Forberg found that Easter had only 20% impairment for his cervical injuries, as opposed to 23%, which Dr. Guberman had found. It was determined by vocational consultants that Easter could perform work in other occupations with proper training.

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Last June, the West Virginia Supreme Court affirmed that a contract arbitration clause could be nullified due to the doctrine of unconscionability, where one party to the contract has far greater power than the other. Arbitration clauses are becoming increasingly common in contracts, especially consumer and employment contracts. The clauses require that both parties waive the right to file a lawsuit in court and instead take their dispute before an arbitrator, who is usually not a judge or an attorney. There has been criticism that arbitration favors the more powerful party, which typically gives repeat business to certain arbitration firms, giving the firms incentive to side with that party. Other criticisms have been that arbitrators often don't know the law, and that it can be very difficult to appeal an arbitration award.

Recently, the West Virginia Supreme Court again found a nursing home arbitration clause unenforceable. In this case, the contract was signed by a woman whose mother had Alzheimer's. Because Nancy Belcher's mother was no longer capable of making her own medical decisions, under section 16-30-8 of the West Virginia Code, the mother's physician selected Belcher to serve as her mother's health care surrogate. Over the following 10 months, Belcher's mother allegedly suffered from infections, dehydration, malnutrition, and other ills during her time at the nursing home. At the end of July 2010, she died.

Belcher filed a wrongful death lawsuit against the nursing home in 2011. The nursing home filed a motion to dismiss due to the existence of the arbitration agreement. However, the circuit court judge in the case sided with Belcher and found the arbitration agreement unenforceable. Judge Charles King of Kanawha County noted that Belcher was only authorized to make health care decisions, which the arbitration clause utterly failed to address. Judge King thought that West Virginia law was not meant to permit a surrogate to waive the constitutional right to a jury trial.

The nursing home then filed a petition for a writ of prohibition with the West Virginia Supreme Court in order to block the circuit court's ruling. Justice Robin Jean Davis wrote the opinion, which considered whether the health surrogate role envisioned by the state legislature extended to this type of situation. The opinion determined that arbitrating disputes concerning a nursing home's care was not within the scope of a health surrogate's authority. The West Virginia Supreme Court therefore affirmed the circuit court's decision to render the arbitration agreement unenforceable.

The outcome of this case is terrific news for anyone faced with the heavy responsibility of determining a loved one's care, including placing that loved one in a nursing facility. It says that the West Virginia Supreme Court is not giving in to the United States Supreme Court's pressure to view everything through the lens of the Federal Arbitration Act, which claims to preempt most state laws that disfavor arbitration agreements. So if you lost a loved one due to possible nursing home negligence, don't be afraid to hire a West Virginia wrongful death attorney and file a lawsuit.