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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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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car crashIn West Virginia, as in other states in the United States, individuals may have their right to obtain a driver’s license withheld when medical evidence suggests that it would be dangerous for them to drive. This most often occurs when drivers have vision problems, but it can also result from mental health issues or conditions like epilepsy. When the withholding of a driver’s license is based on a temporary or reversible medical condition, West Virginia residents may request to have their driver’s license reinstated. A recent case before the West Virginia Supreme Court of Appeals looks at whether the West Virginia DMV has any liability when a driver has her license reinstated, only to lead to accidents and injuries based on the medical conditions that initially led her license to be revoked.

In West Virginia Department of Transportation v. King, Ms. King was killed after an accident involving another driver, Ms. Peyton. Ms. Peyton had had her license revoked in 2007 due to a seizure disorder. However, in 2009, the DMV reinstated Ms. Peyton’s driving privileges and allowed her to obtain a license. Representatives of Ms. King’s estate filed a negligence action against Ms. Peyton and later amended the action to include the DMV. The representatives argued that the DMV was negligent in allowing Ms. Peyton’s reinstatement to be approved without first sending her medical information to the Driver’s License Advisory Board (DLAB). The DMV responded by filing a motion for summary judgment, arguing that it was entitled to qualified immunity as a state agency. Under West Virginia law, state agencies are entitled to qualified immunity for discretionary actions but not for non-discretionary ones. The trial court found that the DMV was required to submit Ms. Peyton’s medical records to the DLAB, so the actions were non-discretionary. It denied the motion for summary judgment, and the DMV appealed.

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toxic wasteIn many personal injury claims, a plaintiff is quickly aware of the injury that has occurred and the defendant who is at fault. For instance, in a car accident, the plaintiff knows if she or he has been hurt, and if the driver is to blame. In some contexts, however, personal injury claims can arise more slowly and may not be obvious to the plaintiff for years to come. One frequently cited example is asbestos exposure, in which a plaintiff may be unwittingly exposed to asbestos over a long period and only slowly become sick or realize the cause of the sickness. To address these types of “exposure” claims, courts often give plaintiffs a longer period of time to discover their injury and the cause. At the same time, courts typically try to avoid allowing plaintiffs to bring very old or outdated claims. A recent case before the Fourth Circuit considers whether a plaintiff can bring a claim based on a “hazardous improvement” on the land where he worked, when the improvement occurred over 20 years ago.

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prescriptionOne of the concepts involved in initiating a lawsuit that can often be very confusing to plaintiffs is determining the proper court where the lawsuit may be brought. Particularly when lawsuits involve several plaintiffs in different locations, or a defendant company that operates in many states, it can be hard to determine the correct place to begin. While plaintiffs are often given deference in bringing a lawsuit where they would like (assuming the location is still proper), defendants can have lawsuits dismissed when the location is particularly inconvenient and other, more convenient locations are available. This is known as the doctrine of forum non conveniens. A recent case before the West Virginia Supreme Court addresses this doctrine and how it can be applied.

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burning houseOur state and local governments provide many valuable services to West Virginia citizens.  Sometimes in the provision of those services, errors and accidents occur.  While West Virginia laws may allow government departments and government officials to be sued in particularly egregious circumstances, they must also balance the ability of citizens to sue against the practicalities of providing affordable services to all.  If every citizen could sue the government for millions of dollars any time an accident occurred, a local government might quickly find itself bankrupt and unable to provide any services to the community. In order to protect against this, West Virginia’s laws provide governments with governmental immunity in certain circumstances. A recent case before the Supreme Court of Appeals of West Virginia looks at whether a West Virginia resident has a right to sue a fire department for errors in attempting to put out a fire at her house.

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chemical spillOn January 9, 2014, Freedom Industries caused one of the largest chemical spills in West Virginia history.  For reasons unknown at the time, over 10,000 gallons of chemical waste were emptied into the Elk River, which served as a water source for Charleston, West Virginia.  For a period of roughly 12 days, residents and businesses in Charleston were unable to use their tap water and were forced to buy clean water from the store. Those who came in contact with the water reported rashes, sickness, and nausea.  Freedom Industries later confirmed that two chemicals, a form of methanol known as MCHM and a form of phenyl ether known as PPH, were involved in the spill. Shortly after the spill was reported, the West Virginia Department of Environmental Protection began an investigation into what had caused it. They determined that the chemicals that had been released were coal cleaning agents that were produced by another company, Eastman Chemical.  Shortly after reports of the spill were released, Freedom Industries filed for bankruptcy.

While the investigation into the accident was ongoing, a class action lawsuit was initiated against Eastman Chemical. Included in the class were Charleston residents who had been affected by the spill because their water was interrupted, they lost wages while their businesses were closed, or they suffered ill effects from the spill.  The plaintiffs alleged that Eastman Chemical was negligent because it failed to properly test the chemicals that it was manufacturing to ensure their safety, and it did not warn purchasers of the coal cleaning chemicals, like Freedom Industries, of the health dangers of the chemicals or how they should be properly stored. In response, Eastman Chemicals stated that it had followed all relevant guidelines for testing its chemicals, had properly informed Freedom Industries regarding its chemicals, and was not negligent, or responsible, for the spill into the Elk River.

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newbornIn West Virginia (and other states), a special claim exists for parents who give birth to a severely developmentally disabled child because they were not adequately informed of such disabilities during the pregnancy. Since a doctor or hospital’s failure to provide the parents with the proper information about their pregnancy deprived them of the opportunity to decide whether to bring the child to term, they may sue for the medical expenses and other damages that occur after the child’s birth. This is known as a wrongful birth claim. Wrongful birth claims can often result in extraordinary damages awards because of the enormous costs of taking care of a developmentally disabled child.  A recent case before the Fourth Circuit Court of Appeals looked at whether West Virginia residents are entitled to such damages even when their medical expenses are being paid by a program such as Medicaid.

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gold convertibleWhen companies manufacture an item for public consumption, they generally owe a duty to consumers to ensure that the item is safe for the purposes for which the public intended to use it. However, this does not mean that the product must be safe for every possible use that can be conceived. For instance, if a person decides to use a bed sheet as a parachute while skydiving, and it does not live up to the task, the bed sheet manufacturer will not be responsible for any injuries that might have occurred, unless it was explicitly advertising its bed sheet as a backup parachute. It did not intend for the bed sheet to be used in that way and can’t be held responsible for an individual’s decision to do so.  A recent case out of Virginia looks at how this doctrine applies to car manufacturers and when they can be held liable for designing and manufacturing a car in a way that allegedly causes injuries to a driver.

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