Posts Tagged ‘Negligence’

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).

All Employers have a duty to provide their workers with a safe work environment. In West Virginia, if an employer breaches this duty and an employee gets injured as a result, that employee may be entitled to money damages in addition to Worker’s Compensation benefits. Workplace injuries and accidents can devastate a family, both financially and emotionally. Workers’ Compensation benefits are designed to provide temporary financial assistance but are grossly inadequate to support a family when the injury is serious or involves a fatality. Fortunately, in West Virginia, an employee may be able to recover additional compensation in a civil suit for damages if he or she was injured as a result of their employer’s “deliberate intent.”

Deliberate Intent and Workplace Accidents

In West Virginia, an injured worker can prove deliberate intent in one of two ways. First, an injured worker may recover money damages if he can prove his employer deliberately injured him.  The more common way to win a deliberate intent claim is by proving five statutory elements. The five statutory elements of a deliberate intent claim are as follows:

(a) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

(b) That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;

(c) That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

(d) That notwithstanding the existence of the facts set forth in subparagraphs (a) through (c), such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and

(e) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition. Workplace accident law is one of the most complex areas of West Virginia personal injury law.

Deliberate intent cases are generally more complex than common law negligence cases.  This is intentional because the Worker’s Compensation system is meant to insure both employers and employees.  Employees are insured in the event they’re injured and unable to work, and employers are insured from the financial liability that typically arises from such injuries absent the statutory protection the Worker’s Compensation system provides.    As mentioned above, however, it has been my experience that West Virginia Worker’s Compensation benefits do not fairly compensated workers who are injured on the job.  In fact, many West Virginia lawyers have abandoned Worker’s Compensation practice because it has become so unfair to workers that it’s frustrating to handle such cases.  Contrary to popular belief, many lawyers have a heart and find it difficult to see their clients suffer without any fair legal remedy available.

Because of the complexity of deliberate intent claims, it’s important to involve a personal injury lawyer who is experienced in workplace accident law as soon as possible following a workplace injury.  Each of the five elements above present additional issues that I’ll address in future posts.  I invite you to leave comments or contact me if you have questions or opinions about West Virginia’s approach to Worker’s Compensation and employer immunity.

West Virginia Personal Injury Lawyer

Part one of this series addressed three issues that are often important to maximizing a truck accident claim.   Below is a discussion of two additional issues that will hopefully help you recover all that you deserve.

4.  Falsified Truck Driver Records

One of the common causes of commercial truck accidents is truck driver drowsiness, often a result of a truck driver staying on the road longer than allowed by law.  For this reason, Federal Motor Carrier Safety Regulations limit how much time a trucker can spend driving without sleep and rest.  These regulations also require truck drivers keep a log of their driving time.  However, greed and profit may motivate a driver and/or trucking company to falsify records so that they can keep the truck on the road as long as possible.

An experienced truck accident lawyer may be able to recognize inconsistencies in the records produced by the truck driver and trucking company during litigation.  An effective personal injury lawyer may also be able to elicit testimony from witnesses to help prove the truck driver or trucking company falsified records.  Proving that the truck driver or trucking company falsified records can significantly help maximize your claim and may justify punitive damages.

5. Trucking Company Policies

Trucking companies usually have written policies that their truck drivers must follow.  These policies address most aspects of a trucker’s job including conducting pre and post-trip inspections of their truck, substance abuse, and what to do in the event that their truck needs repaired.  To maximize your claim, it is important for your lawyer to obtain and review the trucking company policies to determine whether they were followed not only by the truck driver, but also by the trucking company.  Promptly consulting with an attorney after a serious truck accident is important, but that doesn’t mean you should hire the first lawyer you talk to if you’re not fully confident in him or her.

Finding Legal Help

Hiring an experienced truck accident attorney who is aware of these issues can help maximize your claim.  Truck accident victims are often at a disadvantage in regards to resources, truck accident litigation experience, and time spent at the accident scene.  Hiring a qualified attorney is perhaps the most important decision you will make with respect to receiving the compensation you deserve.

West Virginia Personal Injury Lawyer

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?

If you’re injured by a defective product, such as a defective car like the Ford Pinto to the right, you may be able to recover compensation for your injuries from the manufacturer, distributor and/or seller of the product under several different theories of liability including negligence, strict liability, and/or breach of warranty.  These type of claims generally fall under the category of product liability law.  Products subject to such laws include virtually any tangible thing you can purchase including trucks, guns, motorcycles, toys, drywall, tools, appliances, and over-the-counter and prescription drugs.

If you are injured by a product, keep the product and all of its parts in a safe place and in the same condition it was in at the time of your injury. Do not attempt to repair the product as it is likely the most important piece of evidence in your case.  You will likely need it to show that the product was in fact defective.  Of course, if you repair it, it’s no longer defective and you will have effectively destroyed your evidence.

What is Strict Liability?

The general rule for recovering under the theory of strict liability is that an injured person may recover if he or she was injured by a product that it is not reasonably safe for its intended use.  Under West Virginia law, it’s no excuse that other manufacturers are making similar products that are also not reasonably safe.  In contrast to a negligence claim in which you would have to prove that whoever injured you acted negligently in order to recover compensation, a strict liability claim means that you don’t have to prove that the defendant acted negligently or in any culpable way.  To prevail on a defective product strict liability claim in West Virginia, you generally only have to prove that you were injured by a defective product while using the product as it was intended to be used or using it in a reasonably foreseeable way.   If you were injured by a product, you may have a claim and should consult an experienced personal injury lawyer as soon as possible.

West Virginia, like every other state but New Hampshire, requires all passengers (not including cute dogs) to wear a seat belt. The primary rationale behind seat belt laws is to protect drivers and passengers from injury and death.  However, if the increased risk of injury and death associated with not wearing a seatbelt is not enough to motivate you to wear one, perhaps the limited “seat belt defense” is.

The Limited “Seat Belt Defense”

The limited “seat belt defense”  means if you are injured in a car crash while not wearing a seat belt and your injuries were caused or made worse by your failure to wear a seat belt, then the amount of damages you can collect may be reduced.  In other words, the defendant who may be the primary cause of your car accident , may be able to assert the seatbelt defense to limit the amount of compensation you can recover from him.

In West Virginia, the “seat belt defense” is a little more complicated and limited by statute.  It’s also not available in all circumstances.  Thus, it is important to consult an experienced West Virginia personal injury lawyer regarding your particular situation, and please, take care and wear a seatbelt regardless of the laws.

West Virginia Personal Injury Lawyer

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.