Articles Posted in Property Injuries

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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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 At the same time, courts typically try to avoid allowing plaintiffs to bring very old or outdated claims.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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fenceWhen an individual or loved one is injured or killed as a result of another’s error or failure, it can be difficult not to want to place blame on the person or entity that is believed to have caused the harm.  It is only human nature that we would want to hold another accountable for the harm that we have suffered and to seek retribution or revenge for the loss that was experienced.  When dealing with claims of negligence, however, it is not enough that the accident or shortcomings of another party led to an injury.  The law requires that a plaintiff also show that the defendant had a duty to prevent the circumstances that led to the injury and that the individual knowingly failed to uphold such a duty.  Without this element, a negligence claim cannot succeed.

In Wheeling Park Commission v. Dattoli, the requirements of duty and knowledge were at the heart of the West Virginia Supreme Court of Appeals’ determination that a park agency should not be held liable for injuries that occurred to a member of the public.  In the case, Joseph Dattoli was injured while visiting a park maintained by the Wheeling Park Commission.  Mr. Dattoli was leaning on a split rail fence when the fence collapsed. He suffered a rotator cuff injury that led to his being out of work for over six months. Mr. Dattoli brought a negligence claim against the Commission.

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It is no small secret that courts throughout the country struggle to keep litigation moving forward in a log-cabin-1375738-1279x850time-efficient manner and to reduce backlogs of cases and disputes yet to be resolved.  Many litigants now wait years to have their claims heard, all the while unable to move forward with their lives.  At the same time, courts must be careful not to deny any individual their day in court, or the right to present evidence that they believe supports their case.  For these reasons, one of the most significant challenges for the judiciary, and for those who are parties to litigation, is how to weigh the need for judicial efficiency against the right of every party to a fair trial.  Often, as a matter of necessity, time constraints must be imposed on the amount of information that can be presented to the court, and the length of time that a trial can go on.  A recent case in the Supreme Court of Appeals for West Virginia considers the appropriateness of limitations meant to restrict the amount of time a party has to present his or her argument.

In Sneberger v. Morrison, Ms. Sneberger made an oral agreement with Mr. Morrison to construct a primitive log home on her property. Mr. Morrison was not a contractor, but he offered to build the home for $140,000 based on her requests and specifications. After construction began, Ms. Sneberger began to notice problems with the home, including spaces between the logs, a sagging roof, and improper building of the fireplace. She eventually fired Mr. Morrison and hired a new contractor, who had to re-do a substantial portion of Mr. Morrison’s work because it was unsafe.  Ms. Sneberger sued Mr. Morrison on various claims, including negligence. At trial, the jury awarded Ms. Sneberger $40,000 on her negligence claims, but it also found that she was partially at fault and comparatively negligent. Shortly thereafter, Ms. Sneberger appealed.

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nilPremises liability is the doctrine that individuals who own property may be responsible for injuries that occur upon such property when the owners, landlords, or managers of such property knew that a dangerous condition existed and failed to properly address it. Premises liability claims typically arise when guests, tenants, or visitors are on private property and injure themselves through a slip and fall or some other type of accident.  However, what if an individual is injured on walkways or roadways adjacent to private property, of which a private landowner or manager is also aware? A recent case in the Supreme Court of Appeals for West Virginia addresses this issue.

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contract-signing-1474333-1279x1705If you have recently been injured due to an accident or a mistake resulting from a business relationship or agreement, you may have claims under both your personal business contract and West Virginia negligence laws.  For instance, perhaps your business partner incorrectly loaded goods onto a truck, and when you unloaded them, they fell and caused an injury.  Does your claim for damages to cover your medical bills arise under the contract that required the goods to be correctly loaded? Or does it arise under a negligence theory because your business partner was negligent in his loading practices? A recent decision by the Fourth Circuit Court of Appeals suggests that when a claim is not viable under an existing contract, a plaintiff cannot seek to “cloak” the claim as a personal injury claim in order to get around contract issues.

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There are a number of procedural rules that a person considering filing a lawsuit in West Virginia should keep in mind when mulling his or her options. That includes the applicable statute of limitations, which in personal injury cases generally requires an injured person to file suit within two years of an accident. The State Supreme Court recently explained that the deadline is relatively hard, and those who don’t meet it are likely to have their cases dismissed.

calendar-1568148Ms. Hammonds was injured in an accident in July 2010 when she fell into an uncovered man-made hole at Riverview Cemetery in Williamstown. Hammonds, who was there for her grandfather’s funeral service, suffered a broken left ankle as a result of the fall. She later sued companies she believed to be the cemetery’s owners for negligence in July 2012. That lawsuit was dismissed after it was later determined that the parties being sued owned a different Riverview Cemetery, not the one at which the accident occurred. Hammonds filed a second lawsuit against Riverview Cemetery Association in December 2012.

The RCA argued that the lawsuit should be dismissed because Hammonds filed it after the two-year statute of limitations expired. Hammonds maintained that the December suit related back to the initial lawsuit against the other cemetery owner and was therefore timely. Hammonds said the court should treat the December action as an amended version of the original lawsuit.

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A person suing for personal injury in West Virginia generally has the burden of proving in court that the person or entity that he or she is suing was negligent or was otherwise responsible for the injury. That often means relying on medical and other expert testimony to detail the extent of the injury and how it was caused. As the U.S. District Court for the Southern District of West Virginia recently explained, however, there are certain procedural hoops that you have to jump through to make sure that the testimony actually gets to a judge or jury.

stethMr. Turner sued Speedway LLC in state court, alleging that he was injured after slipping and falling on a wet surface in the parking lot of a Speedway gas station in Wilkinson. The case was later removed to federal court because Speedway is an out-of-state company. Turner alleged that he injured his hip, elbow, back, neck, and head in the fall and that he suffered a fracture, headaches, pain in his feet, and difficulty walking as a result. In the run up to the trial, however, it was revealed that he also had a history of health problems, including missing roughly half a year at work after having several discs removed from his neck in the 1980s, as well as a heart condition and a lower back injury.

“West Virginia law dictates that in a negligence suit, a plaintiff is required to show four basic elements:  duty, breach, causation, and damages,” the Court explained. In other words, a person suing for negligence has to prove that the person or entity being sued breached a duty owed to the person suing, that the breach caused the person to be injured, and that the person is entitled to money damages as compensation for those injuries. Property owners like Speedway are generally considered under state law to owe visitors a duty to maintain their premises in reasonably safe condition and to warn them of any hazards that the owner knows about or should know about through reasonable inspection. But the company said it was entitled to summary judgment because Turner couldn’t prove that he was actually injured in the fall.

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A person who is injured on the job in West Virginia is generally entitled to workers’ compensation benefits covering medical costs and some missed wages, depending on the nature of the accident and the injuries sustained. In some cases, the worker can also sue his or her employer for additional damages for “deliberate intent,” or purposely exposing the worker to a condition that the employer knew was particularly dangerous. The worker may also be able to seek damages from a property owner, if the owner failed to adequately warn the worker about hazards on the property that the owner knew about or should have been aware of. As a recent state Supreme Court ruling shows, however, a worker who causes his own accident isn’t likely to have much of a claim.

safety_helmetMr. Ball began working as a drilling rig operator in 2006, running a drill mounted on a crawler chassis to perform excavation work for windmill pads in Grant County. He was doing exploratory drilling on behalf of Allegheny Investments at a site owned by OAS Enterprises in 2008 when he was involved in an accident. A foreman drove Ball along the proposed drill path before the work began, and Ball worked on the path for several hours without incident. At some point, he reached a hill and was unsure whether to continue or to turn back. Ball opted to keep going – moving off the designated drill path – and the drill rig ultimately steered off an embankment and crashed on its side.

Ball incurred injuries to his face and his head during the accident. He sued A.L.L. Construction and Allegheny Investments, alleging that they were his joint employer. Ball argued that the companies should be liable beyond workers’ compensation benefits because they subjected him to an unsafe work condition knowing that it was likely to cause him injury. Ball also sued OAS Enterprises, alleging that the company was also liable for the unsafe conditions on the property as owner of the site. A circuit court granted summary judgment to the companies, finding that Ball failed to show that the area where the accident took place was particularly hazardous or that A.L.L. and Allegheny had “actual knowledge” of any hazard on the property.

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