by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. A recent unpublished opinion by the Virginia Court of Appeals provides important guidance on what a claimant must show to prove that an injury “arose out of” his or her employment. In United Airlines, Inc. v. Taylor, No. 1169-15-4, 2016 Va. App. LEXIS 72 (Va. Ct. App. March 15, 2016), the claimant’s work accident was found non-compensable despite the fact that he lost his balance and fell down several stairs while carrying items totaling around 35 pounds. This case should serve as a reminder that the claimant must show not only that he was injured at work, but that “a condition of the workplace either caused or contributed” to the injury. See Southside Virginia Training Ctr./Commonwealth of Virginia v. Shell, 20 Va. App. 199, 202, 455 S.E. 2d 761, 763 (1995). In other words, the fact that the claimant is carrying something at the time of his injury does not necessarily mean the accident is compensable. In Taylor, the claimant was employed as a ramp agent for United Airlines. His job duties included unloading baggage and other cargo from aircraft. On the day of the accident he was walking up a set of metal stairs while holding two strollers under his arms. Taylor estimated the stroller in his right hand weighed approximately thirty pounds, while the stroller in his left hand weighed about five pounds. As he was walking up the stairs his right knee “popped,” causing him to fall down the stairs and onto his back. His knee then popped back into place. Taylor admitted that the stairs...
by KPMLAW | Feb 23, 2016 | KPMBlog, News, Uncategorized
Written by Gary Reinhardt, Esq. Have you used a Transportation Network Company (TNC) yet? That is the fancy, statutory name for “ride share” companies such as Uber and Lyft. As most are aware, a TNC relies on its drivers to use their personal vehicle. The prospective passenger contacts a TNC driver through the use of a smartphone app. From there, the driver acts as a typical taxicab although personal experience has shown these cars to be cleaner and the driver to be nicer. Payment for the ride is made via credit or debit card already entered into the TNC’s digital platform. The TNC concept is fairly new and courts have yet to sort out the morass of legal and insuring issues these ride shares cause. State statutes set out a comprehensive regulatory framework for these companies, including requirements that essentially label these TNC vehicles and require minimum insurance limits. Starting with Va. Code Ann. § 46.2-2099.48, the Virginia legislature sets out what a TNC and its driver must do to operate in the Commonwealth. This statute requires that all TNC drivers carry “proof of coverage under each in-force TNC insurance policy, which may be displayed as part of the digital platform, and each in-force personal automobile insurance policy covering the vehicle.” This same statute limits a driver from driving more than 13 hours during any 24 hour period. The statute also requires that a TNC vehicle have a different color decal on the license plate, the year decal that shows you have renewed the vehicle registration. Virginia TNC vehicles will have a black decal with yellow “VA” letters and...
by KPMLAW | Jan 18, 2016 | KPMBlog, News, Uncategorized, Updates
Author: Helen Jhun, Esq. Editor: Janeen Koch, Esq. The issues of negligence and liability in two-vehicle rear-end motor vehicle accidents are generally straight forward. Under long established Virginia law, there is a rebuttable presumption of negligence against a driver who rear-ends a lawfully stopped vehicle. Edlow v. Arnold, 243 Va. 345, 415 S.E.2d 436 (1992), Garnot v. Johnson, 239 Va. 81, 387 S.E.2d 473 (1990). However, defending multiple vehicle rear-end accidents is unique. The issue of causation and assigning the negligence and liability to the different vehicles involved is often in dispute. Specifically, the defenses of third party negligence and contributory negligence are often asserted in rebutting the presumption of negligence against the rear-ending vehicle in “chain reaction” accidents. In the case of Maroulis v. Elliott, 207 Va. 503, 151 S.E.2d 339 (1966), the Supreme Court of Virginia discusses the issues of third party negligence and superseding causation as defenses in a multiple vehicle rear-end accident. In the Maroulis case, Defendant Maroulis was the fourth vehicle in a seven vehicle caravan. The lead car swerved left to avoid another vehicle, driving toward him in the wrong direction. The vehicle driving in the wrong direction collided head on with the second vehicle in the caravan. The third vehicle in the caravan swerved and braked, avoiding a collision with the second vehicle. Maroulis then collided with the third vehicle, and then plowed into the second vehicle. At trial, Maroulis asserted the defense of unforeseeable, intervening negligence, arguing that the negligence of the car driving in the wrong direction cut off his own negligence. The trial jury found against Maroulis. On appeal,...
by KPMLAW | Oct 29, 2015 | KPMBlog, News, Uncategorized, Updates
Last month, KPM’s Brian Cafritz reported about a string of recent rulings on slip and fall cases and the impact that placing a warning cone has on a company’s liability. Our report was quite prophetic, as it preceded yet another ruling that reinforced our analysis. UPDATE By Brian Cafritz, Esq. On October 8, 2015, Judge Moon of the USDC, Western District of Virginia, published his opinion in Robinson v. Kroger Co., Case No 6:14-cv-00046. In Robinson, plaintiff slipped and fell on liquid at a Kroger store when no cones or signs were displayed to warn of danger. Store video showed that the spill in question was created only 65 seconds before Robinson fell, and 37 seconds from when Kroger was notified of the spill. Facts revealed that Robinson entered the area of the spill and turned her cart to walk towards a self-checkout stand. In doing so, she pushed her cart directly through the spill, and once her feet hit the area, they slipped from under her. In depositions, Robinson stated that the puddle sized spill was beige, which was the same color of the floor. Ms. Robinson also acknowledged that nothing was hiding the liquid substance from her view, and that she was able to see it without difficulty when she stood directly above the spill. When asked whether, “if [she] had been looking at the floor looking for this liquid, would [she] have been able to see it,” Ms. Robinson responded, “I guess.” Based on this testimony, Kroger moved for Summary Judgment, arguing that because Robinson could clearly see the spill after the fall, and because she...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Whether a claimant suffered an “injury by accident” that arises out of and occurs in the course of employment usually takes an undue amount of time during a recorded statement. The factual variations are endless and the black letter law is often blurred, making it hard to know where to focus your questioning. Luckily, lack of timely notice is relatively straightforward and this defense is often neglected during recorded statements. In general, an injured worker needs to notify a supervisor of a work accident within 30 days. If an injured worker fails to give legally sufficient notice, that worker’s claim can be completely barred – even if they sustained a compensable “injury by accident.” In other words, lack of timely is a very powerful defense. It can give you a clear, reliable reason to deny an otherwise compensable claim. What follows are crucial questions to ask about notice during a recorded statement, along with a brief explanation of the law on notice. 1. Who Did You Tell? The Workers’ Compensation Act requires notice to the “employer” pursuant to §65.2-600. Of course, this means some specific person. The cases discuss the need to tell a “foreman,” “superior officer,” or “supervisor.” In other words, telling a co-worker isn’t enough. Get the claimant to identify who the claimant considered to be the “boss” and find out whether the claimant told that person. Also, because there may be more than one supervisor, have the claimant list all supervisors, any other people the claimant believed should be informed of work accidents, as well as...
