Articles Posted in Wrongful Death

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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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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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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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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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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truck

Automobile insurance policies generally cover a wide array of accidents and incidents that may occur while an individual is in a vehicle.  They can cover injuries or damages that result to the driver and passenger of the vehicle that is insured, or the injuries of another individual or driver caused by the malfunction of the vehicle or the negligence of the driver who is covered.  What is less well known is that, in some instances, auto insurance policies even provide coverage for the defense of claims arising out of an automobile accident.  Plaintiffs asserting claims against defendants arising from automobile accidents must be careful to consider whether insurance companies may play a role in finding counsel for a defendant, or if reimbursement for litigation expenses from insurance could have an impact on a defendant’s willingness to settle.

One recent case to look at the scope of litigation defense insurance is Allstate Insurance v. Brady.  In this case, Allstate Insurance sought a declaratory judgment from the Northern District of West Virginia that it was not required to pay for the defense of defendants who killed another individual while using an Allstate insured vehicle.  In that case, Jody Hunt shot and killed two individuals, Jody Taylor and Douglas Brady, after a dispute.  In order to commit the crime, she drove to Brady’s place of business in a truck that was insured by Allstate. She then drove to Taylor’s home, where she shot him while she was sitting in the truck.  The personal representative of Brady and Taylor’s estates later filed wrongful death actions against Hunt, and Allstate sought to determine whether it was required to defend Hunt against these wrongful death claims.

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pregnancyWhen a family member or loved one is gravely injured or killed as a result of the negligence of another party, it is natural to want to seek out as many avenues as possible for relief or justice against the party at fault. In most situations, plaintiffs are precluded from bringing multiple rounds of claims against the same defendant.  Thus, for instance, a plaintiff cannot bring a lawsuit for negligence against a defendant and then, after losing, attempt to bring a different negligence claim.  Courts generally hold that plaintiffs are entitled to their day in court, but not to repeatedly drag a defendant into court if they lose.  However, this does not mean that it is impossible to bring multiple personal injury claims when a plaintiff feels that one claim does not adequately cover the harm that they have suffered. A recent case out of the neighboring state of Maryland looks at situations in which both personal injury and wrongful death claims can be brought.

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car accident

One of the first steps that any plaintiff must take when bringing a personal injury claim is to determine where the lawsuit should be filed.  Many personal injury claims arise between two individuals, such as two drivers of vehicles that collide.  In these situations, it is relatively easy to determine the correct court, since both individuals will likely live in the same state.  However, sometimes personal injury and product liability claims involve large corporations. While these corporations may have products that reach the state where the injury occurs, they may not have offices or factories in that state, or they may be incorporated in a different state.  In these circumstances, plaintiffs must consider, with the help of their attorney, more complicated personal jurisdiction requirements, which determine where a lawsuit can properly be brought.  A recent case before the Supreme Court of Appeals for West Virginia took a look at a victim’s efforts to bring a lawsuit against Ford Motor Company in the state.

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elderlyNursing home negligence is an all too frequent topic in the news these days. As the population of the United States grows increasingly older, and young adults find themselves trapped between raising children of their own and taking care of their elderly parents, older individuals are more and more likely to spend time in a nursing home or assisted living facility. While many of these service providers have stellar reputations, quality care, and a genuine consideration for their residents, recent stories have highlighted the darker side of nursing homes.  In some cases, nursing homes prey on the vulnerable elderly members of society, subjecting them to abuse, neglect, and even death.

A recent case before the West Virginia Supreme Court deals with the tragic death of Robert Thompson, an elderly man suffering from Alzheimer’s disease who resided at Nicholas County Nursing & Rehabilitation, which is owned by CMO Management, LLC (“CMO”). Mr. Thompson died in July 2011 from injuries resulting from prolonged abuse and neglect, including hip fractures, malnutrition, and serious pain. In 2013, Wanda Williams filed suit on behalf of Mr. Thompson for negligence and wrongful death. She sought damages not only for what happened to Mr. Thompson but also for systemic problems with the nursing facility during the course of his time there from 2009 to 2011.

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