dogIn West Virginia, the actions or inactions of public officials are often protected by the “public duty doctrine.” Under the public duty doctrine, the general services that public officials and agencies provide to their community do not create a legal duty to any specific member of that community. For example, while firemen owe a duty to fight fires to the general community, they do not owe that duty to any one specific individual, and thus, that individual cannot sue them for a failure to meet their duty. When a public official or agency violates a duty to the community at large, it does not create private liability for any specific member of that community. West Virginia law does, however, create an exception to the public duty doctrine – when a municipality or public official creates a special relationship with a member of the community, that can serve as the basis for a lawsuit. In a recent case before the Supreme Court of Appeals for West Virginia, the court considered whether a special relationship could save a lawsuit dismissed by the lower court.

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sterilization

The time to move for summary judgement is a critical stage in any litigation proceeding. Both or either party can request that the court find that the evidence developed through discovery makes it impossible for one party to win on their claims or defenses, and judgment should be entered in favor of the requesting party. In preparing summary judgment motions, plaintiffs must utilize all of the evidence available to them at that point to convince the judge that no genuine issues of material fact exist. The judge considering the motion will not independently evaluate the record to determine which evidence exists to support a party’s position. Instead, the party must present such evidence through its motion. In a recent case before the Fourth Circuit, a personal injury plaintiff lost on partial summary judgment because she failed to present all of the evidence available to her in her briefing. For reasons discussed below, the Fourth Circuit rejected her efforts to introduce new evidence at a later date.

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factoryIn 2014, a storage facility owned and operated by Freedom Industries was discovered to have leaked numerous toxic chemicals into the Elk River. The leak greatly affected individuals in the area surrounding the Elk River, since it infiltrated water processing plants and resulted in thousands of West Virginia residents having to boil or purchase water until the leak could be addressed. As a result of the leak and the negative publicity that surrounded it, Freedom Industries was forced into Chapter 11 bankruptcy. As part of the bankruptcy resolution, Freedom Industries retained the right to any claims it had against other parties resulting from the chemical leak. In 2016, Freedom brought claims, including negligence and product liability, against Eastman Chemical Company, which manufactured and sold the chemicals stored at Freedom Industries’ storage facility. Freedom alleged that Eastman knew that the chemicals it produced were hazardous and had the ability to corrode through steel, making them predisposed to leaks. Freedom further argued that Eastman failed to share these facts with Freedom, Freedom stored Eastman’s chemicals in steel tanks, and this contributed to the ultimate chemical leak.

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operation-blade-1-1550186-300x200When any company sets out to provide a product to the public, it presumably does so with the intent that the product be as safe as possible. Businesses want to ensure that their customers will have a good experience with the items that they sell, and making sure that a product is safe for use is a necessary component of that good experience. Sometimes, however, products unexpectedly cause side effects, or have malfunctions that can make them dangerous to use. When this occurs, and an individual is injured by the product, he or she may have a personal injury claim based on product design defects or a failure to warn of known issues with the product. A recent case before the Fourth Circuit Court of Appeals considered these two claims with a plaintiff severely injured as a result of a medical product.

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trainTypically, when dealing with personal injury claims, a plaintiff must show that the defendant negligently caused the injuries or harm that resulted, and it was not the plaintiff’s own negligence that was the primary cause of the accident. However, in certain cases, courts may allow plaintiffs to bring claims even if they were significantly responsible for their own injury because it would be unjust or inhumane to allow otherwise. One of these circumstances is when the last clear chance doctrine applies.

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gearsIn complicated accident cases involving heavily disputed facts, parties often rely on expert testimony to establish the bases for their claims. Experts can help provide background and context on issues such as evidence at an accident scene, faulty mechanics, or user error. Experts also help to explain complicated concepts and arguments in easily digested formats so that juries can understand what is going on. At the same time, since they wield such authority, experts can have an undue influence on a case, and a jury may give their testimony more weight or credibility than the expert’s testimony may actually merit. For these reasons, courts take the inclusion of expert testimony very carefully, and they generally only allow experts to testify if they are truly qualified to do so and have reliable testimony to offer.

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hospital bedMany states, including West Virginia, have strict procedures and requirements that govern the filing of any tort claim related to medical professionals or health care facilities. In West Virginia, these procedures are contained within the West Virginia Medical Professional Liability Act (MPLA). A failure to follow these procedures can result in the immediate dismissal of a claim. Since the requirements can be arduous, plaintiffs will, on occasion, try to avoid them by creatively pleading tort claims that they argue fall outside the purview of a medical malpractice or medical liability claim. In a recent case before the West Virginia Supreme Court, a plaintiff tried but failed to creatively plead a premises liability claim against a health care provider.

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policeAs has been discussed previously on this blog, bringing claims against governmental entities, whether state or federal, can be very complicated. Governmental officials are entitled to qualified immunity for their actions in many circumstances, particularly when those actions are discretionary. A recent case decided by the Supreme Court of Appeals of West Virginia illustrates this qualified immunity exception.

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money

When a defendant is found liable in a negligence or personal injury action, many plaintiffs presume that damages will be awarded to them. But damages are a separate element of any personal injury claim that must be independently proven by the plaintiff. When the plaintiff fails to do so, a jury can decline to award the plaintiff any damages at all. Just such a circumstance arose in a recent case, and the unsuccessful efforts of the plaintiff to reverse the jury’s verdict on appeal show the reluctance of courts to disturb a zero damages verdict.

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boatAs with other governmental entities, the Navy and the Army, as arms of the federal government, are entitled to sovereign immunity from lawsuits. Under the Federal Tort Claims Act (FTCA), they have waived sovereign immunity for actions that are conducted pursuant to statute or policy but not for those actions that are inherently discretionary. This is known as the discretionary function exception. While discretionary functions often arise when employees make certain decisions or undertake certain actions, courts have disagreed about whether the maintenance of premises can be considered discretionary. A recent Fourth Circuit case extends the discretionary function exception to apply to premises liability lawsuits.

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