motorcycleMost personal injury claims are brought against individuals who caused harm or damages to another person. However, individuals are not the only defendants who may be held responsible when serious injuries or death occur. Sometimes corporations can be held accountable when their employees are acting within the scope of employment, or when other individuals are performing as agents of the corporation. A recent case before the West Virginia Court of Appeals looks at the unique question of whether a trust can also be sued for personal injury or wrongful death if its trustee commits a tort that leads to an injury.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

operation-blade-1-1550186When 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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

registryIn most states, including West Virginia, when an individual commits a serious sexual offense, he or she may be required to register as a sex offender after a criminal sentence is completed. Due to the high rates of recidivism among sexual offenders and the unique risks posed to children, state legislators have decided that this continued requirement is justified even when an individual has already served time in prison. Recently, however, the local courts in West Virginia asked the Supreme Court to consider a novel question:  whether individuals who committed sexual offenses while juveniles were required to register as sex offenders upon turning 21. The Supreme Court agreed to address this question and resolve the issue.

Continue reading

crimeUnder the federal sentencing guidelines, certain crimes are subject to mandatory periods of imprisonment. Under Section 924(c), whenever a defendant commits a crime of violence that involves the use of a firearm, the defendant must, at the least, be subjected to a consecutive mandatory sentence of at least 10 years in prison. Determining what constitutes a crime of violence under this section has been a subject of much debate. In a recent case before the Fourth Circuit Court of Appeals, the court evaluated whether the crime of carjacking can be a crime of violence.

Continue reading