Articles Posted in General Personal Injury

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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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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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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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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