plastic bagOf all of the personal injury claims that may arise when an individual is injured, the most common is a claim of negligence. Negligence occurs when one party has a duty to ensure the reasonable safety and care of another party but fails to fulfill that duty and, as a result, causes the injuries of the other party. Negligence arises when one individual knows that a dangerous condition or situation exists but fails to do anything about it. Negligence does not arise simply because a victim is injured or a dangerous condition existed. Instead, someone must be aware of that dangerous condition. A recent case before the Southern District of West Virginia addressed precisely this issue in a recent case involving a grocery store fall.

R.S. and her husband, B.S., brought a lawsuit against Kroger Supermarkets after R.S. was injured in a fall that occurred at her local store. As R.S. was checking out with her groceries, she stepped on a plastic bag that was lying on the floor. The plastic bag caused her to slip, and she fell, landing on her back. The fall caused her to break a rib, led to contusions in her chest and abdomen, and also caused neck and back pain. R.S. was taken to the hospital and treated for her injuries. According to the lawsuit that R.S. later filed, a nearby cashier, K.P., noticed the plastic bag on the ground shortly before R.S.’s fall but did not do anything about the bag. K.P. admitted that he did notice the bag but said that it was not moving when he noticed it and that he became aware of it only an instance before R.S. fell. R.S. argued that Kroger was negligent in failing to clean up the bag. Prior to trial, Kroger moved for summary judgment on R.S.’s claims, arguing that it had no knowledge of the bag on the floor in time to clean it up. The lower court ultimately agreed. It found that while R.S. was a visitor to the store, and Kroger owed her a duty of reasonable care, this duty extended only to dangers or conditions of which Kroger had actual or constructive knowledge. Here, it held that R.S. had not presented any evidence that Kroger had knowledge of the bag, such that it could have cleaned it up or removed it before R.S.’s fall. R.S. appealed.

On appeal, R.S. argued that Kroger had a maintenance and clean up policy that should have caused store employees to pick up the bag, but, since the store did not follow its own policy, the bag was not addressed. However, as the court explained, the presence of the bag on the ground and Kroger’s maintenance policy alone do not create negligence. Instead, Kroger had to have actual or constructive knowledge that there was a bag on the ground that did not get cleaned up pursuant to policy and that this bag posed a threat to customers. Moreover, this notice must have been received with sufficient time for Kroger to address the dangerous bag before R.S. fell. Here, while R.S. alleged facts to show that K.P. noticed the bag, this notice occurred only moments before R.S.’s fall and without enough time for Kroger to respond. The Southern District concluded that this simply did not amount to actual or constructive knowledge of the bag. To hold Kroger responsible in this situation would impose an “unachievable standard” on the company.

coal mineIn some cases, it may not be completely clear which forum (or state) is the best place to bring a lawsuit. Parties may be residents of different states, and the action that forms the basis of the lawsuit may have occurred in an entirely different state. In such situations, plaintiffs may have options for deciding where to bring their lawsuit and which laws should apply. While courts understand that various options may be available to plaintiffs, they also seek to discourage forum shopping, which occurs when plaintiffs attempt to bring a lawsuit in a state with laws that are more favorable to them. Courts greatly dislike forum shopping and do not look kindly upon it. One example, discussed below, occurred recently in a West Virginia case in which the plaintiffs, primarily from Ohio, brought a lawsuit in West Virginia courts and attempted to apply West Virginia law.

In this large-scale negligence case, 79 plaintiffs brought claims against American Electric Power Company and the Ohio Power Company, alleging that they were injured when their spouses and family members brought home deadly Coal Combustion Residuals (“CCRs”) from landfills and mines into their homes. The CCRs led family members to develop cancer and other significant health conditions. AEPC was located in West Virginia, and the plaintiffs brought their claims in West Virginia court, despite the fact that none of the plaintiffs lived in West Virginia, and the CCR landfill and incidents occurred in Ohio. Shortly after the complaint was filed, AEPC moved to dismiss it, arguing that Ohio law should apply to the case, and Ohio’s Mixed Dust Statute prevented the company from being liable for off-premises dust exposure. The plaintiffs argued that although West Virginia required that the law of the place of injury be applied to the case, an exception should be granted here under West Virginia law because the application of Ohio’s Mixed Dust Statute would be contrary to West Virginia’s public policy of allowing injured parties to sue those who caused their injuries. The lower court agreed and denied the motion to dismiss. AEPC and its co-defendants appealed.

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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.

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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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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-1-1550186When 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.

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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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