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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When a defendant is found liable in a negligence or personal injury action, many plaintiffs presume that damages will be awarded to them. But damages are a separate element of any personal injury claim that must be independently proven by the plaintiff. When the plaintiff fails to do so, a jury can decline to award the plaintiff any damages at all. Just such a circumstance arose in a recent case, and the unsuccessful efforts of the plaintiff to reverse the jury’s verdict on appeal show the reluctance of courts to disturb a zero damages verdict.

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prisonFor many criminal defendants, the risks of a potential criminal trial far outweigh the possibility of a guilty verdict. This makes the option of taking a guilty plea an appealing way to minimize the risk of a lengthy jury sentence and create more certainty as to the time one will spend in prison. Plea deals also involve signing away many rights, however, and must be approached with a good amount of care and attention to detail. In exchange for a reduction in charges or jail time and avoiding a jury trial, criminal defendants often give up their rights to appeal the proceedings or challenge the ultimate punishment imposed. A recent case before the Fourth Circuit Court of Appeals considered a criminal defendant’s attempt to appeal a sentence by arguing that government attorneys failed to uphold their end of a plea deal bargain.

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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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drugsGenerally, when a criminal defendant receives a jail sentence, that sentence cannot be modified unless the conviction is changed or overturned. This rule promotes finality in the justice system and allows for more certainty among defendants, prosecutors, and victims. Congress has provided one exception to this rule. When a defendant is sentenced to a certain amount of time in prison, based on the sentencing guidelines at the time, and these guidelines are later changed, the defendant may petition for a reduction in sentencing if his or her sentence would be reduced under the new guidelines. A recent case before the United States Court of Appeals for the Fourth Circuit considers such a petition and looks at when district courts are permitted to make additional factual findings in order to justify rejecting sentence reduction petitions.

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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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secretAll criminal defendants are entitled to due process under the law and a fair opportunity to represent themselves at trial. As part of this constitutional right, the Supreme Court has held that defendants are entitled to any information that is exculpatory and would support their defense. Prosecutors cannot withhold information from defendants that would tend to support their defense or exonerate them from the charges. While prosecutors generally abide by this constitutional right, complications can arise when the information that the defendant seeks is highly confidential or privileged. A recent case before the West Virginia Supreme Court looks at the release of information from sensitive and confidential therapy sessions.

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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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courtroomIn our court system, criminal defendants who cannot afford to have legal counsel are entitled to have a public defender appointed to represent them in their criminal trials and proceedings. While many of these public defenders provide competent and admirable legal assistance in the face of overwhelming and stressful workloads, there may be occasional failures of representation. Such failures can also happen with privately retained counsel. When these failures gravely affect a criminal defendant’s case and compromise his or her rights, a criminal defendant can sometimes have decisions of the court, or a conviction, overturned on the basis of “ineffective assistance of counsel.”  A recent case before the Fourth Circuit Court of Appeals looks at whether ineffective assistance arises when a criminal defense attorney fails to object to a court’s rejection of a plea deal.

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prescriptionOne of the concepts involved in initiating a lawsuit that can often be very confusing to plaintiffs is determining the proper court where the lawsuit may be brought. Particularly when lawsuits involve several plaintiffs in different locations, or a defendant company that operates in many states, it can be hard to determine the correct place to begin. While plaintiffs are often given deference in bringing a lawsuit where they would like (assuming the location is still proper), defendants can have lawsuits dismissed when the location is particularly inconvenient and other, more convenient locations are available. This is known as the doctrine of forum non conveniens. A recent case before the West Virginia Supreme Court addresses this doctrine and how it can be applied.

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