Articles Posted in Negligence

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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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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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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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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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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crashIn many instances, when a plaintiff first files a lawsuit for an injury that he or she has experienced, it may not be clear who the defendant is.  For instance, maybe the plaintiff tripped on a hole left in a sidewalk but isn’t sure who created the hole. Or an individual may be hit in an accident involving a delivery truck, and, while it is clear what the company that owns the truck is, it is not clear who the driver of the truck was.  In these instances, courts will allow plaintiffs to initially plead a case against a “John Doe.”  It is presumed that once discovery begins, and the plaintiff is able to conduct depositions and request documents, the identity of John Doe will become apparent, and the pleadings can be amended to reflect the correct individual. In most circumstances, this is what happens. However, on the rare occasions that John Doe cannot be identified, what happens to the plaintiff’s complaint? A recent case out of the Northern District of West Virginia addresses this question.

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toxicLegal challenges continue to plague DuPont Chemical in their quest to defend themselves against allegations that they have polluted rivers in Ohio and West Virginia through the release of Teflon chemicals into these waterways. C-8, a chemical substance used to make Teflon cookware non-sticky, was found to be toxic to humans as early as 1961, when studies began to report that C-8 could cause birth defects in unborn children. A continued study of C-8 revealed that it was also responsible for causing various cancers in humans. DuPont continued to use the substance for almost half a century after these studies, failing to disclose to regulators the possible effects of C-8. In addition, the company allowed C-8 to be dumped from its plants into water sources throughout Ohio and West Virginia, ultimately leading to over 3,500 health-related lawsuits.  After years of discovery and ongoing litigation, several of these cases have made their way to juries and verdicts.

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knee injuryWhen an individual sues for injuries and damages resulting from another party’s negligence, he or she is only entitled to receive compensation for harms actually and proximately caused by the other party’s actions.  In some negligence cases, this may be very straightforward.  For instance, if a doctor performs the wrong surgery, it is usually clear which harms resulted from this error.  However, in other instances, an individual may have preexisting injuries or conditions that existed well before the accident, in addition to new injuries resulting from the accident. It can be difficult to separate the two.  In a recent case before the Supreme Court of West Virginia, the court took a look at a case involving preexisting injuries and new conditions.

In Harnish v. Corra, Mr. Corra was injured in an accident with Mr. Harnish. Mr. Corra claimed neck and back injuries, as well as a knee injury for which he later needed surgery. Mr. Harnish admitted liability for the accident and for the neck and back injuries, but he denied that the accident had caused the knee injury. Instead, according to Mr. Harnish, Mr. Corra’s knee pain and surgery were the result of preexisting knee conditions.  At trial, Mr. Corra presented evidence from a medical expert that while Mr. Corra had chondromalacia, a knee condition, prior to the accident, he had never before had pain, so the pain he experienced and the surgery he required resulted from the accident.

Conversely, Mr. Harnish presented evidence from a medical expert that Mr. Corra’s knee pain was the result of preexisting conditions and normal wear and tear, rather than the accident. However, he acknowledged that these preexisting conditions were aggravated by the accident.

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