Articles Posted in Personal Injury

Generally, a personal injury plaintiff must prove four elements to prevail in a negligence claim: duty, breach of duty, causation, and damages. However, in some cases, plaintiffs can take a “short cut” under the legal theory of “negligence per se.” Negligence per se is a Latin term that means negligence in and of itself. Under Washington D.C. law, negligence per se is applicable “where a particular statutory or regulatory standard is enacted to … prevent the type of accident that occurred.” Further, an “unexplained violation of that standard renders the defendant negligent as a matter of law.”

This means that the plaintiff must prove only that the statute was designed to protect against the type of harm caused in the accident, and that the defendant was the person or entity that engaged in the conduct. Therefore, when the facts of the case allow it, a plaintiff will almost always want to instruct the jury on negligence per se because it makes the plaintiff’s burden that much easier to meet.

For that reason, when a court erroneous instructs a jury on negligence per se, the defendant may have an issue on appeal because of the harm caused by the instruction. However, a recent D.C. Court of Appeals case held that an improper negligence per se instruction can be “redundant” rather than harmful in some cases, and does not always require reversal.

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A federal appellate court approved class certification and a settlement in a class action lawsuit based on the 2010 explosion and oil spill on an oil drilling rig operated by British Petroleum (BP) in the Gulf of Mexico. In re Deepwater Horizon, et al, No. 13-30095, slip op. (5th Cir., Jan. 10, 2014). The spill led to several hundred lawsuits by individuals and businesses claiming property damage, and by individuals claiming personal injury. The recent ruling rejected a request by BP to vacate the district court order approving the settlement. While this ruling specifically involves claims for property damage, BP’s claims and the court’s ruling could also apply to personal injury class actions.

BP operated, Deepwater Horizon, an exploratory oil drilling rig in the Gulf of Mexico, about forty miles south of Louisiana. The rig was drilling a well located at a depth of about 5,100 feet underwater. On April 20, 2010, a pocket of methane gas rose into the rig, ignited, and caused an explosion that killed eleven workers and injured over a dozen. Oil flowed from the well directly into the Gulf for almost three months releasing an estimated 205 to 210 million gallons. Oil washed ashore in Texas, Louisiana, Mississippi, Alabama, and Florida, resulting in widespread reports of injured and dead wildlife, property damage, and health problems among residents of the affected areas.

BP was named as a defendant in hundreds of lawsuits. The Judicial Panel on Multidistrict Litigation (JPML) consolidated many of the claims in In re Oil Spill by the Oil Rig “Deepwater Horizon,” No. 2:10-md-02179 (E.D. La.), in August 2010 in order to address common issues as efficiently as possible. BP established a fund to pay claims known as the Gulf Coast Claims Facility (GCCF), which would eventually pay out over $6 billion. Starting in 2011, the company negotiated with the plaintiffs in the JPML case to transfer claims from the GCCF to a court-supervised fund.

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Two new lawsuits seek to hold over eighty members of a Yale University fraternity vicariously liable for an automobile accident that killed one person and injured two. A fraternity member allegedly lost control of a U-Haul truck and struck several pedestrians outside a football game. The estate of the woman who died in the accident and one of the women who was injured had previously sued the national fraternity and the university. The national fraternity disclaimed responsibility, but the new lawsuits suggest that it left the local fraternity chapter and its members exposed to vicarious liability claims. Personal injury claims against organizations lacking formal legal structure, based on actions of their members, can present difficult questions of how to determine and apportion fault.

The accident occurred on November 19, 2011 at a tailgate party hosted by the Yale chapter of Sigma Phi Epsilon (SigEp) at the annual football game against Harvard. A fraternity member was transporting beer kegs in a U-Haul truck to the tailgate, when he lost control of the vehicle. One person, thirty year-old Nancy Barry, was killed, while Yale student Sarah Short and another woman were injured. The school reportedly responded by putting new restrictions on tailgate parties and banning kegs at athletic events.

Short and Barry’s estate each filed suit in 2012 against the national SigEp organization, Yale University, U-Haul, the driver of the truck, and others. Each lawsuit claimed several million dollars in damages. They alleged that the national fraternity was liable because the members who were involved in the accident were acting as its representatives. The lawsuits reportedly foundered, however, when the Richmond, Virginia-based national SigEp organization stated that it had not officially sanctioned the tailgate party, and its insurer disclaimed all responsibility for the Yale chapter.

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The D.C. Circuit Court of Appeals rejected a challenge by the American Tort Reform Association (ATRA) to recent changes made to a federal regulation affecting hazardous materials. The Occupational Safety and Health Administration (OSHA) amended its hazard communication (HazCom) standard in March 2012. ATRA claimed that OSHA overstepped its authority, but the court disagreed. ATRA v. OSHA, No. 12-229, slip op. (D.C. Cir., Dec. 27, 2013). While the case involves a range of complex questions of regulatory law, the bottom line is that the ruling is good for personal injury plaintiffs. The HazCom standard mandates labeling and other warnings about materials known to pose health risks to workers and consumers. The court affirmed that it does not preempt state tort law, meaning that it does not prevent plaintiffs from recovering damages in a suit for injuries brought under state law.

OSHA has authority under the Occupational Safety and Health Act to promulgate regulations promoting workplace safety, but these regulations may not supersede or preempt state law claims for injuries or wrongful death. 29 U.S.C. § 653(b)(4). The HazCom standard, 29 C.F.R. § 1910.1200, requires classification of known hazards associated with exposure to chemical products and disclosure of those hazards to workers. This disclosure takes the form of labels placed on chemical containers and “safety data sheets,” along with programs for providing this information to employees.

Since the HazCom standard was first introduced in 1983, companies have had some leeway as to the format of the labels, but in 2012, OSHA issued a new rule standardizing all labels and data sheets nationwide according to the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals. It stated that the rule would preempt state and local laws and regulations relating to labeling requirements, but not state law tort claims, such as failure to warn and products liability.

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The US Department of Veterans Affairs said in a recent report released last week, that so far six deaths have been attributed to delayed screenings for colorectal cancer at the Veterans Administration Medical Center in Columbia.

According to the report, which was released by the VA’s Inspector General, delayed colonoscopies and other screenings have so far been linked to malignancies later identified in 52 patients. The report did not specify the extent of seriousness in those cases. The VA said that extra staff has been hired to meet increased demand, and that clinical staff will contract out work to local health care providers as necessary.

The Inspector General for the VA determined that, in addition to other potential causes, the Center fell behind on its screenings due to a critical shortage in nursing staff. A reported nine patients or their families have reportedly filed lawsuits so far.

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The West Virginia Supreme Court recently issued a unanimous ruling prohibiting a plaintiff in a personal injury lawsuit from adding additional defendants to a lawsuit after the statute of limitations had expired. The opinion affirmed the dismissal of the suit by the relevant circuit court from June.

The lawsuit, filed against Town of Wayne, was brought on behalf of Deborah Wallace who alleged that she was injured in May 2007 after she stepped on a water meter cover in the parking lot of the Wayne Post Office and the cover flipped over. Wallace and husband Dale filed a complaint in 2009 against the Town of Wayne for negligence, failure to warn and loss of consortium.

Following the complaint, Wayne filed a complaint against the construction company, alleging that it negligently repaved the parking lot. The construction company then filed a complaint against a paving company, claiming it was at least partially responsible for any potential liability to the city, since the paving company had contracted with the construction company.

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The long lasting damage and seriousness of concussions have become major concerns in sports in recent years. The NFL is currently involved in a multi-million dollar lawsuit involving more than 4,000 former players related to head injuries and related complications.

The NCAA is now facing a similar lawsuit, and the plaintiffs involved in the case are seeking class action status. The attorneys handling the case are seeking to expand the suit to potentially include thousands of plaintiffs nationwide. The suit was initially filed in 2011 on behalf of a former Eastern Illinois Football player and several other former athletes.Attached to the class-action request itself is a report by a leading authority on concussions, citing an internal NCAA survey from 2010, which found that nearly half of the college trainers who responded to the survey indicated they put athletes showing signs of a concussion back into the same game. The expert stated that it is well established that athletes must never be returned to play on the same day after having suffered a concussion diagnosis.

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The Marshall University Board of Governors was recently granted dismissal of a lawsuit in which it was named defendant. The claim was dismissed because the plaintiff in the case failed to meet the pre-suit notice requirement under the West Virginia code, which requires notice of the claim and relief sought, sent to the defendant by certified mail at least 30 days prior to the filing of the suit. Pre-suit notice is typically not required under West Virginia law, except when the defendant is a healthcare provider or a governmental agency, as in this case.

The case arose out of an interesting fact pattern, whereby one student was attempting to shoot bottle rockets out of his rectum during a fraternity party.

According to the plaintiff, during a house party in May of 2011, one young man became intoxicated, and decided to attempt to “shoot bottle rockets out of his anus on the [fraternity house] deck.” In doing so, he startled the plaintiff, who then jumped backwards, causing him to fall off of the deck of the fraternity house, and becoming injured in the process. He was reportedly lodged between the deck and an air conditioning unit for some period of time. The plaintiff further alleges that there was no railing on the deck at the time of the incident, and that this condition had existed for several months, if not years, prior to the fall.

The suit claims that the fraternity was negligent in failing to provide a safe deck, and that the young man attempting the fireworks was at fault for his actions, which involved consuming alcohol that is known to potentially lead to dangerous activities.

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Following the catastrophic explosion at a fertilizer distribution and storage plant in Texas last month, in which the building caught fire and then exploded as firefighters were attempting to douse the flames, several individuals have begun to file personal injury lawsuits. The total extent of damage done remains unknown, though it is estimated that at least 150 buildings were damaged or destroyed, at least 15 people were killed, and many more were injured or reported missing.

Of the two lawsuits recently filed, one was brought by insurance companies on behalf of various individuals and businesses accusing the plant’s parent company of negligent operation of the location, which allegedly led to the accident.

The second suit was filed by a woman who lived in a neighboring apartment, which was destroyed by the blast. She is seeking up to $1 million due to loss of her possessions, and the physical and emotional injuries she suffered as a result of the explosion.

Further lawsuits are expected against the above named and other defendants. For example, the manufacturers of the fertilizers that were being stored at the facility are other potential defendants.

The last inspection performed by the Occupational Safety and Health Administration (OSHA) reportedly occurred 28 years ago, and uncovered at least five “serious” violations. One of these violations dealt with the way in which anhydrous ammonia was allegedly improperly handled and stored. According to a report released by the plant in late 2012, it was then storing 110,000 pounds of the chemical,in addition to 540,000 pounds of ammonium nitrate.

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Oral arguments were heard in a federal district court in Pennsylvania earlier this month over the motion to dismiss filed by the National Football League regarding concussion injury litigation.

Plaintiffs contend that for many decades, the National Football League has withheld information on purpose and misstated the potential harm and safety risks that result from concussions and miscellaneous other injuries sustained by football players in the course of play. The legal filings include fraud and negligence claims.

The plaintiffs’ attorney summarized the NFL’s responsibilities to the players by stating at oral argument that the NFL was holding itself out to be the “guarantor of safety”.

Counsel for the defense claimed that the players’ collective bargaining agreement (“CBA”) preempts the athletes’ legal claims, and that the parties should engage in arbitration in lieu of the tort litigation process. He further noted the defendant’s position that the NFL, the players, and the teams each have involvement and share responsibility in regards to players’ well being and safety.

There are now over 4,000 individual plaintiffs participating in this and related litigation, and this figure is continuing to increase. These plaintiffs make up over 200 separate lawsuits that the court has consolidated and transferred to the Eastern District of Pennsylvania.

The National Football League Players’ Concussion Injury Litigation, has resulted in increased scrutiny from legal and sports circles. The plaintiffs in these cases include several former NFL players and/or their family members, who have suffered a variety of degenerative brain diseases or other related conditions due to incurring repeated concussions during the course of their NFL careers.

Following this hearing, the judge will decide if the case should survive the defendant’s assertions that the CBA preempts the injury claims, or whether it should be dismissed.

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