West Virginia Injury Lawyer Blog

Roadway construction is a common sight: orange barrels and construction workers along the side of the road. People usually associate it with slow traffic and endless delays. However, too often people drive cars too quickly or carelessly past construction zones, with deadly consequences. A recent article looks at problems with work zone safety on West Virginia and Ohio roadways.

The West Virginia Department of Transportation reported 356 work zone fatalities in 2009, compared to 1,021 fatalities in Ohio that same year. The top three reasons given were that drivers made unsafe lane changes, they followed too closely, or they failed to control their vehicle. Many of these accidents happened on rural two-lane roadways in Appalachian Ohio and West Virginia, where drivers get distracted by the beautiful views. The West Virginia Department of Transportation has launched a media campaign to promote work site safety until construction season is over. The Ohio Department of Transportation has started requiring its construction workers to use high-intensity flashing lights and reflective tape on all equipment in the work zones.

West Virginia is fortunate to have many magnificent sites, especially the Appalachian Mountains. It is tempting to want to take a drive and just breathe it all in. However, as drivers, we have a great responsibility to those around us to pay attention to the road and its immediate surroundings. Because so many people don't, roadside construction work is seen as highly risky employment. If you or a loved one work as a roadside construction worker and have suffered a serious injury in an accident, you need to find a West Virginia car accident attorney. An experienced attorney would gather evidence from investigators at the scene of the accident and interview witnesses. An attorney would help you file a negligence or wrongful death suit against the driver who caused the accident.

Your attorney would work to find the truth of the situation: whether the driver acted carelessly, or whether the driver's behavior was understandable in light of the situation (for example, if a car veered in front of him and he pulled to the side to avoid hitting the car). Once your case goes before the jury, your attorney would make the best argument possible that you deserved compensation for your suffering. Even if it turns out that your behavior partially contributed to the accident -- such as if you briefly went beyond the orange barrels -- you can still get relief. West Virginia operates under the modified comparative negligence system, where the injured party can get relief if he or she is less than 50% at fault for the accident. If your fault is at 50% or above, however, you cannot recover. You or your loved one may also be able to obtain workers compensation from your employer since the injury occurred on the job.

We at the Wolfe Law Firm have helped countless people in car accidents get money awards for their medical expenses and lost wages. We welcome any attempt by the West Virginia Department of Transportation to put a stop to tragic roadside accidents. Those who fix our roads perform a vital service by making travel safer for all of us. We should return the favor by ensuring that roadside construction work sites are well protected.

Recently, three women from Mount Pleasant, South Carolina were run over by an out-of-control pickup truck while they slept in their tent. They were among the 30,000 people attending the All Good Music Festival in Masontown, West Virginia. One of the women, 20-year old Nicole Miller, was pronounced dead at the scene, while the other two women were flown to a nearby hospital. Elizabeth Doran and Yen H. Tom are reported to be in good condition.

Authorities claim that the driver lost control of the truck as it rolled down a hill. It struck other cars and tents of people camping nearby before hitting the victims. So far, no information has been revealed on what made the driver lose control, whether it was through his own error or whether a third party interfered. The driver has not yet been charged.

Though one should not assume the driver acted irresponsibly, it would hardly be the first time someone lost control at an entertainment venue. The All Good Music Festival is a three-day event in its fifteenth year. Each year, the 30,000 attendees have the option of camping on Marvin's Mountaintop, a 655-acre privately owned property. With so many people and so much open space, it is sadly inevitable that some will use it as an opportunity to act reckless even if everyone else behaves. People want to feel good, and that can involve drinking too much and doing things that you wouldn't normally do. Such behavior too frequently leads to tragic results.

When someone you love is hurt in this type of situation, you would look at a few sources of fault: the one who actually caused the injury, the one who organized the event, and the owner of the property where the injury occurred. For the owner, there is the issue of premises liability. Owners have a legal responsibility to prevent visitors to their property from being injured. When the property is opened for use by the public, or when people enter to do business with the owner, these people are known as "invitees." Owners owe the highest duty of care to invitees: a duty to warn about hazards on the land that the owner knows about or should know about. Usually, premises liability involves accidents like slipping and falling. With the death at All Good Music Festival, the question is whether a car veering out of control counts as a "known" or "should have known" hazard. An experienced West Virginia personal injury attorney can evaluate the situation and determine whether the owner of the property can be held liable. If there is a history of such accidents, that might be strong evidence for holding the owner responsible. If the organizers of the event are not the owners, they may be held liable as well depending upon how foreseeable the accident was and whether they did everything to prevent it. This is why many event organizers carry insurance.

Otherwise, you would file suit against the one who caused the injury. You would claim that he acted negligently, that he owed you a general duty to behave reasonably, and instead his careless behavior was the cause of your injury. An attorney can help you gather evidence to show that, for instance, a driver in a car accident had too high a blood-alcohol level.

Continue reading "One Dead, Two Injured After Being Hit By Truck at West Virginia All Good Music Festival" »

Recently in neighboring Kentucky, a coal mine worker was killed in a mine formerly owned by Massey Energy Company. The 26-year old man, Ryan Thatcher, died from injuries suffered while hauling supplies on a rail locomotive through the Voyager No. 7 mine. The cause of the fatal injuries was reported to be an overcast beam from the mine's roof. Mr. Thatcher had worked at the mine for two-and-a-half years, and as a mine worker for six years total.

Massey Energy Company once owned mines in Kentucky, Virginia, and West Virginia. Before being purchased by Alpha Natural Resources earlier this year, it was in the news quite a bit for its record of safety violations and worker fatalities. The most recent was the Upper Big Branch mine explosion on April 5, 2010 in Raleigh County, West Virginia. The deadliest accident in 40 years, it claimed the lives of 29 miners. The explosion occurred after high methane levels were reported in the mine, though some believe that the cause may have been a large amount of coal dust. A later investigation revealed that Massey Energy had repeatedly failed to meet safety standards from the Mine Act of 1977. On June 29, 2011, the Mine Safety and Health Administration reported that Massey Energy pressured mine workers to lie in safety books that were shown to inspectors. Massey Energy kept a second set of books that detailed the actual safety hazards.

Coal mining is one of West Virginia's oldest traditions. West Virginia produces more than 158,000 tons of coal each year, second only to Wyoming. Generations of families have worked in the coal mines. It is hard work and has natural dangers associated with it, which is why it is essential for coal mining companies to ensure that no unnecessary risks are taken with mine safety.

We at the Wolfe Law Firm give our condolences to the young mine worker who died in the Kentucky mine, and hope that Alpha Natural Resources seizes the opportunity to inspect all of its mines, including in West Virginia, to ensure that they comply with safety standards. Even so, Alpha Natural Resources is just one mine owner. It is unknown to what extent other companies comply with mine safety laws.

If your loved one was injured or killed in a coal mining accident, you should find a West Virginia personal injury attorney to help obtain relief. If your loved one was injured and the employer has workers compensation insurance, he or she should be entitled to receive payments for his injury. Workers compensation is granted on a no-fault basis, so that the issue of negligence does not come into play. Those who receive workers compensation give up their right to sue for the injury. Most companies are required by law to carry workers compensation insurance.

Continue reading "Fatal Injury in Kentucky Mine Formerly Owned by Massey Energy Company" »

The U.S. Chemical Safety Board has found that a "series of safety shortcomings" caused three serious accidents at a DuPont chemical plant in Belle, West Virginia in 2010. The CSB draft report noted that the plant had, among other things, failed to maintain the integrity of a critical phosgene hose. The result was that the three accidents occurred within 33 hours, beginning on January 22, 2010. The first accident involved 2,000 pounds of flammable methyl chloride gas, which workers discovered had been leaking into the atmosphere for five days. The second involved a leak in a pipe that resulted in a fume cloud of sulfur trioxide. Finally, the third accident released phosgene into the air. During World War I, phosgene was used as a chemical weapon. The worker who was exposed to the phosgene at DuPont died the next day.

CSB investigators found that the pipe carrying phosgene had been in operation for seven months, when it should have been changed once a month. DuPont had been aware as early as 1987 of the dangers of using braided stainless steel hoses lined with Teflon. An expert recommended lining the hoses with Monel instead, which would be more resistant to corrosion. Monel was never used. Recommendations in 1988 for an enclosure around the piping were also never followed.

The CSB recommended several safety improvements for the plant. One was to enclose all phosgene production so that if any leaked, it would be contained. Another was to revise the company's near-miss reporting and investigation policy to encourage anonymous participation by all employees, so even small incidents would be reported. The CSB also pressed for the Compressed Gas Association (CGA) and the American Chemistry Council (ACC) to adopt tighter standards for safe handling of phosgene and other toxic gases.

Situations like the 2010 accidents create a nightmare for the injured party's family. A preventable accident could result in wrongful death of a loved one or serious disability. The injured worker might never be able to work again, and require constant treatment for pain and suffering. That is when families typically turn to a West Virginia personal injury attorney and file a lawsuit in court. If the family files a wrongful death lawsuit, they would need to show that negligence or intent was the cause of death, and that the family has suffered monetary injury as a result. Awards for wrongful death are generally monetary damages based on the loss of support and services, possible medical expenses, and other factors. The jury takes each of these factors into consideration when deciding the award. West Virginia also permits an award of punitive damages if the company's behavior was intentional or grossly negligent.

If the worker is alive, but injured, the family might file a negligence suit, claiming that the company's negligence resulted in injury to the worker. In both cases, the family would need to show that the company had a duty of care to the worker; that through its failure to use reasonable care, the company breached that duty; that the breach resulted in the worker's injury or death; and that the worker and family have suffered as a result. Many companies carry workers compensation insurance in order to avoid worker injury lawsuits. Workers compensation acts as an "exclusive remedy," awarding workers a fixed monetary amount and taking away the worker's right to sue -- unless a third party was also involved in the injury. In any event, the options for holding a company accountable can be very complicated, and it is important to make the right decisions. The Wolfe Law Firm can help families of injured workers get what they deserve.

Arbitration has become an increasingly popular way of resolving disputes. Primary reasons for choosing it are that it is supposedly cheaper and faster. However, arbitration has also been used to give a powerful party even more leverage. Employers, auto dealerships, and other entities have slipped arbitration clauses into standard contracts signed by employees and consumers. These clauses prohibit the parties from taking their grievances to court. This is a problem when the weaker party tries to get redress for the other party's negligence or abuse of power. Arbitration claims are heard by an arbitrator who may not be familiar with the law; if the arbitrator makes an error, the losing party cannot appeal; and in arbitration, the awards are often smaller. Those who sought to challenge arbitration clauses (most recently in AT&T Mobility v. Conception) have been unsuccessful because of the Federal Arbitration Act of 1925. The U.S. Supreme Court has held that the FAA supercedes state laws addressing unconscionability in contracts.

But apparently the Federal Arbitration Act does not win in every case. Recently, the West Virginia Supreme Court of Appeals found that an arbitration clause in a nursing home contract was "unconscionable and unenforceable." The court determined that the Federal Arbitration Act did not apply to pre-injury situations, where the personal injury occurred after the contract had been signed. The decision was the end result of three court cases in which the parties claimed that nursing home negligence caused the wrongful death of a loved one. The plaintiffs had signed contracts with arbitration clauses before putting their relatives in the nursing home. These clauses stated that any legal disputes over the health care provided would be referred to arbitration.

The plaintiffs had argued that the West Virginia Nursing Home Act nullified the arbitration clause because it stated that "any written waiver by a nursing home resident of his or her right to commence a lawsuit for injuries sustained in a nursing home shall be null and void as contrary to public policy." The defendants argued that the Nursing Home Act was superceded by the Federal Arbitration Act. In finding that the FAA did not supercede the Nursing Home Act, the court also cited the difference in fee between civil litigation and arbitration. Whereas the fee to file a suit in West Virginia civil court is $145, and $260 for filing a medical professional liability suit, the fee for an arbitration claim is $975 for claims below $10,000 and $8,700 for claims worth between $500,000 and $1 million.

We at the Wolfe Law Firm welcome the outcome of this ruling. It will likely be appealed, but at least for today, there are still situations where a person who has suffered from someone else's negligence won't have to be constrained by an arbitration clause. Cases of wrongful death must be treated with the utmost care. Plaintiffs who lose a loved one due to someone else's behavior want the ones responsible to be held accountable. That means records need to be examined; witnesses need to be gathered; experts need to be found. Arbitration usually places limits on discovery, constraining the ability to gather sensitive facts that could help a plaintiff's case. Only a West Virginia wrongful death attorney working within traditional channels of court can really get the most thorough sense of what happened.