Archive for the ‘Negligence’ Category

Numerous studies show cell phones are a leading cause of car accidents. One such study estimated that drivers talking on cell phones are four times more likely to be in a car wreck. According to a Harvard University study, cell phones cause over 200 deaths and half a million injuries each year.

Many states have enacted laws limiting or prohibiting cell phone use while driving.  For example, some states require that a hands-free device be used while driving.  However, West Virginia does not have any state-wide cell phone laws.  In fact, it’s perfectly legal in West Virginia to drive while text messaging or even emailing on a Blackberry or iPhone.  That’s  pretty scary considering many of us have problems sending an email from the comfort of our home or office.

Despite the fact that West Virginia has no state-wide cell phone laws, there can still be serious legal consequences for driving in West Virginia while talking on a cell phone.  For example, if you’re involved in a car accident and one of the drivers was talking on a cell phone, you may be able to present evidence of that fact to the jury.  Evidence of that the driver was using a cell phone while driving may help prove the driver’s negligence and win your case.

Cell Phone Records

The issue then becomes how to prove the other driver was talking on a cell phone at the time of your car accident.  One of the best ways is use the other driver’s cell phone records.  Cell phone records show the date, time and duration of all calls made or received from a cell phone.  Of course, the same legal rules apply to you if you decide to use a cell phone while driving.

Thus, to protect your legal rights and most importantly your life, you may want to think twice before driving while talking on a cell phone.  If you decide that you must use a cell phone while driving, you may want to consider a hands-free device.  If you’ve been injured in an accident and would like more information about how to obtain and use cell phone records to win your personal injury claim, CONTACT me.

Note: Although West Virginia has no general state-wide cell phone laws, West Virginia – thankfully – does prohibit drivers with learner’s permit from using a wireless communication device while operating a motor vehicle (except in an emergency).

Successfully litigating a truck accident claim can be difficult, and there are seven important issues that can influence whether or not a truck accident victim recovers all that he or she deserves – recovering something is not the same as he or she recovering all that they deserve. Maximizing a truck accident claim and how these seven issues are resolved usually hinges on one important question – what lawyer the truck accident victim hires?

Yes, in West Virginia, if you’re injured in an accident that was partly your fault, you may still have a personal injury claim.  However, if you are 50% or more at fault you probably don’t. West Virginia has adopted the modified comparative negligence doctrine. Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). Under this doctrine, a claimant’s action is barred if his or her negligence equals or exceeds the combined negligence of all the other parties involved in the accident. If the claimant is less than 50% at fault, his or her recovery is reduced in proportion to his or her degree of negligence.

For example, consider the auto accident hypothetical below:

Suppose you are driving down the road five miles over the speed limit and suddenly another car swerves into your lane and hits your car.  You then file suit and and your case goes to trial.  The jury finds that you were 10% at fault and the other driver was 90% percent at fault.  The jury also finds that your damages are $100,000. Under the modified comparative negligence approach, you would recover $90,000 (90% of your damages), which is proportionate to the other drivers fault.

If the jury had decided that you were 50% or greater at fault, you would have recovered nothing, and, in fact, the other driver would have likely had a personal injury claim against you.  On the other hand, if the jury had decided you were 49% at fault and the other driver was 51% at fault you would have recovered $51,000 and the other driver would have recovered nothing.

Is the modified comparative negligence doctrine the best approach?

Although it’s easy to see how West Virginia’s modified comparative negligence approach can be problematic when it’s a close call as to who is at fault, other approaches are even more problematic and can result in harsh, unfair results. For example, the draconian contributory negligence rule states that if you are at fault to any degree (even 1%) then you cannot recover in court. The pure comparative negligence approach can also be problematic because it allows an injured person to recover so long as he or she is less than 100% at fault.  Thus, most parties involved in a car accident could be a plaintiff.  For example, in the above scenario, even though you were only 10% at fault, if West Virginia followed the pure comparative negligence approach, the driver who swerved into your lane could potentially sue you and recover 10% of his damages.

There are a number of other issues that could affect your claim and how a West Virginia court will apply the modified comparative negligence doctrine.  For example, proximate cause is still a requirement to recover damages, and comparative negligence is not an available defense in intentional tort cases.  Thus, it’s advisable to consult with an experienced personal injury lawyer to evaluate your case. Your comments and opinions about the different approaches mentioned above are appreciated.