“On February 26, 2013, the plaintiff was
working as the conductor of a northbound Norfolk Southern freight train
running from Greensboro, North Carolina through Danville, Virginia and
points north. The temperature was in the 30’s and it was cloudy with
light mist or rain. The yardmaster at Greensboro warned the train’s
engineer, Teddy Lester, that some ice might be encountered farther
north.” Plaintiff’s duties as a conductor “required him to dismount the
last car in the ‘cut’ and walk south, away from the locomotive, turning
off an electric timing device on the switch, and continue walking south
nearly 200 feet to release the ‘derail,’ a protective device to prevent
movement of cars on the side track. He would then return north to throw
the switch and call the engineer to back the ‘cut’ onto the side
track.” When the engineer did not hear back from the Plaintiff as
expected, he went to investigate and found the Plaintiff at the bottom
of a steep embankment, very disoriented with injury and no memory as to
how he got there. Plaintiff had a fractured collarbone and three
fractured ribs. Plaintiff’s expert testified at trial that the walkway
near the fall was too narrow and covered with inappropriate large
crushed rock and it contributed to the injury. After a three-day jury
trial in circuit court, the Plaintiff was awarded $336,293.
Federal
Employers’ Liability Act (FELA) “was enacted by Congress in 1908, and
has since been amended to serve the humanitarian purpose of imposing on
railroads engaged in interstate commerce as common carriers the duty to
provide their employees a safe place to work. Railroad employees who
suffer injuries or death, to which a breach of that duty contributed,
even to the slightest degree, were granted a remedy by way of a civil
action for damages against the employer. The federal and state courts
were given concurrent jurisdiction to adjudicate such actions.” The
Court noted that “[u]nder the FELA, a railroad has a non-delegable and
continuing duty to use reasonable care to furnish its employees a safe
place to work. The employer must perform inspections to discover dangers
in the place where employees are required to work and after discovering
the existence of dangers the employer must take precautions for the
employees’ safety.” The Court went on to explain that standard of proof
and proximate cause in a FELA case is more lenient than a traditional
tort case.
The central issue on appeal was whether there was
sufficient proof of causation. The Court explained that “[i]n FELA
cases, causation may be proved by circumstantial evidence alone and does
not require direct evidence.” Therefore, the Court concluded that
“[t]here was evidence to support the inference that the defendant’s
negligence played a part, however small, in causing the fall which was
the source of the plaintiff’s injury. The evidence may also have been
sufficient to support an inference that the plaintiff’s fall resulted
from causes unrelated to the defendant’s negligence. Under the settled
principles governing FELA cases, that juxtaposition created a jury issue
as to which inference should be drawn.” Thus, there was sufficient
evidence to support the jury’s verdict and judgment was affirmed.
The case is Norfolk Southern Railway Co. v. Sumner, Record No. 180121.
Michael L. Avery, Sr.
Michael
Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael
Avery has over 20 years of experience in advocating for clients who
have been injured in a wide array of accidents—from car and truck
accidents to bicycle crashes to accidents caused by drunk drivers. He
became a lawyer after a distinguished career in the U.S. Marine Corps.
Practice Areas include: * Auto Crashes * Vehicle Rollovers * Motor Vehicle Fatal Injuries * Commercial Vehicle Accidents * Uninsured / Underinsured Motorist * Claims * Distracted Driver Accidents * Road Rage * Truck Accidents * Hit-and-Run Accidents * DUI Accidents * Passenger Injuries * Motorcycle Accidents * Bicycle Accidents * Pedestrian Accidents * Slip and Fall * Personal Injury
A recent Virginia Supreme Court case addressed whether employers have a duty to exercise reasonable care to warn employees against exposing their family members to asbestos carried home from the workplace.
Quisenberry case was a result of a
certification of question from the United States District Court for the
Eastern District of Virginia for the following question:
Does an
employer owe a duty of care to the family member of an employee who
alleges exposure to asbestos from the work clothes of the employee,
where such exposure takes place off of the employer’s premises and the
employer has no relationship with the family member?
Virginia Supreme Court restated the question as follows:
Does
an employer owe a duty of care to an employee’s family member who
alleges exposure to asbestos from the work clothes of an employee, where
the family member alleges the employer’s negligence allowed asbestos
fibers to be regularly transported away from the place of employment to
the employee’s home?
The case stems from the death of Wanda
Quisenberry, who passed away in 2016, three years after being diagnosed
with “malignant pleural mesothelioma, caused by exposure to asbestos
dust and fibers.” The estate alleged that the exposure occurred from
Ms. Quisenberry’s father, who worked at what is now the defendant
decades ago and during his work, Mr. Quisenberry carried home the
asbestos dust and fibers on his work clothes, which led to the exposure.
Upon
removal to federal court, the defendant sought to dismiss the case
based on the argument that the plaintiff was relying on “take home”
exposure liability, which had not been recognized by the Virginia
Supreme Court. Eventually, the district court certified the question to
the Virginia Supreme Court.
Virginia Supreme Court began its
analysis with the general rule that duty to exercise due care to avoid
injuring others “is owed “to those within reach of a defendant’s
conduct.” (internal quotation omitted). The court went on to explain
that while no such duty exists if there is no relationship, “the
existence of a duty does not depend on proving a particular
relationship, but arises from that basic and necessary regulation of
civilization which forbids any person because of his own convenience, to
recklessly, heedlessly or carelessly injure another.” (internal
quotation and alteration omitted). Put another way, “[t]he only
‘relationship’ which must exist [for a duty to arise] is a sufficient
juxtaposition of the parties in time and space to place the plaintiff in
danger from the defendant’s acts.”
“Thus, that harm in the
present case occurred at a location removed from the employer’s business
and after hours is a distinction without a difference. The artificial
hazard created by the Shipyard – asbestos dust – was allegedly released
through the Shipyard’s course of conduct and moved to place Wanda in
danger. The nature of the hazard allegedly created by the Shipyard’s
conduct was that asbestos fibers, the inhalation of which could cause
mesothelioma, regularly accumulated on the clothes of workers during the
day and were released again when those workers returned home and had
their clothes washed, thus placing Wanda and others similarly situated
within reach of the Shipyard’s conduct and within the ‘zone of danger.’
This created a ‘recognizable risk of harm’ to those sharing living
quarters with the workers, resulting in a duty of ordinary care to that
class of persons.” Therefore, the court concluded that the defendant
did owe a duty of care to the plaintiff and recognized take-home duty in
Virginia. The case is Quisenberry v. Huntington Ingalls Inc., Record No. 171494.
Michael L. Avery, Sr.
Michael
Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael
Avery has over 20 years of experience in advocating for clients who
have been injured in a wide array of accidents—from car and truck
accidents to bicycle crashes to accidents caused by drunk drivers. He
became a lawyer after a distinguished career in the U.S. Marine Corps.
Practice Areas include: * Auto Crashes * Vehicle Rollovers * Motor Vehicle Fatal Injuries * Commercial Vehicle Accidents * Uninsured / Underinsured Motorist * Claims * Distracted Driver Accidents * Road Rage * Truck Accidents * Hit-and-Run Accidents * DUI Accidents * Passenger Injuries * Motorcycle Accidents * Bicycle Accidents * Pedestrian Accidents * Slip and Fall * Personal Injury
Legal
cases are distressing; there are no two views about it. But a good
lawyer can make them a little less stressful. But, how do you find a
good lawyer? While suggestions and reviews can help you shortlist a few
lawyers, you cannot decide which one to hire without meeting them in
person. Same goes for lawyers – they need to meet potential clients to
find out if they can work with them.
This is what the initial consultation is for – to help both the
client and the lawyer decide if they can work together. However, an
initial consultation or the first meeting can be unproductive and a
waste of time if you go for it unprepared. Attorney Michael Avery,
provides his advice in a new article that is available on his blog, https://michaelaveryesq.law.blog
To help you make the most of time and reach a decision, here are a
few things you should remember while going for a lawyer consultation:
* Ask If There Is a Consultation Fee First things first, ask the
lawyer if there is a fee for the meeting. Lawyers typically charge a per
hour fee, so if there is a consultation fee, make sure to make the most
of it. Ask all the necessary questions that can help you decide if you
want to hire the lawyer or not. Do not waste time in discussing
unnecessary or less important questions. If you don’t want to pay for
the first meeting, look for free consultation lawyers. There are some
lawyers who offer free-of-cost consultations.
* Make a List of Questions No matter how intelligent you are or
how sharp your memory is, this is not the time to show it. Always, write
down all the questions on a paper or a notebook before going for the
meeting to make sure you do not forget anything important. While the questions may vary from case to case, here are some general questions to ask a lawyer in the first meeting:
* Does your case fall into the lawyer’s area of expertise? * How many similar cases has the lawyer handled in the past? * What options do you have – both legal and out-of-court? * What problems are likely to occur in your case? * How is the other side likely to respond? What is their plan of action likely to be? * How likely is it that the case will get settled in your favor? * How long will the case take to conclude? * Is the lawyer going to personally handle the case? Or are they going to transfer it to a team member, colleague or junior? * If any other lawyer is going to be involved in the case, ask if you can meet them before finalizing the contract. * How will the lawyer charge for the case – on an hourly or per-meeting basis or is there a flat fee? * Ask about the accepted modes of payments to avoid any problems later on.
Be Prepared for Lawyer’s Questions
Just like you have a lot of things to ask, lawyers also take all the
important information in the first meeting to decide whether they want
to take up the case or not. This includes your personal details, your
narrative, and all the information you can provide about the case.
Take Relevant Documents
Lawyers do not just rely on verbal information, they need written
documents and proof that can help them determine the strength of your
case. So, make sure to carry all relevant documents to the initial
lawyer consultation, no matter how insignificant they appear to you.
Sometimes, a small and seemingly insignificant piece of evidence can
change the direction of the case.
Preparing for your first meeting with a lawyer is critical for your case, so don’t take it lightly. If you are well-prepared, the initial consultation will be enough for you to decide whether you want to work with a lawyer or not.
Michael L. Avery, Sr.
Michael Leon Avery, Sr., personal injury attorney in Fairfax,
Virginia. Michael Avery has over 20 years of experience in advocating
for clients who have been injured in a wide array of accidents—from car
and truck accidents to bicycle crashes to accidents caused by drunk
drivers.
He became a lawyer after a distinguished career in the U.S. Marine
Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach,
California on January 5, 1959, but grew up in Natick Massachusetts.
After graduating from Ohio Wesleyan University with a B.A. degree in
History and Politics and Government, Michael Avery attended Officer
Candidate School and was commissioned a Second Lieutenant on December
18, 1981. Upon completion of The Basic School, he was selected for
assignment as an infantry officer and attended Infantry Officers Course
in Quantico, Virginia. After graduation from IOC he was assigned to 2nd
Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in
Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery
participated in Operation Colonel Potlatch in the Aleutian Islands as a
Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander.
During the battalion’s overseas deployment to Okinawa in 1983, then
First Lieutenant Avery attended and successfully completed Naval Gunfire
School in the Philippines. Following the 2/7’s overseas deployment, 1st
Lt. Avery was assigned as the 81mm Platoon Commander for 2/7. First
Lieutenant Avery was augmented as a regular officer in August of 1983
and selected for assignment to recruiting duty at 12th Marine Corps
District on Treasure Island, San Francisco, California. His initial
duties were as a Contact Team Officer and serving as a “floating”
Operations Officer for various Recruiting Stations including RS Portland
and RS Seattle. Then First Lieutenant Avery was reassigned as the
Executive Officer of Recruiting Station San Francisco where he completed
his assignment on recruiting duty in August of 1987. Promoted to
Captain, he was assigned to 3rd Landing Support Battalion in Okinawa
Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th
MAU only five weeks prior to deployment for Exercise Balikatan. Working
outside his MOS, he successfully completed the planning and coordination
of combined ship and air embarkation and Combat Service Support plans
for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned
to 9th Marines for Team Spirt as part of the regimental staff.
Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB
prior to his selection to attend Amphibious Warfare School. Upon his
successful graduation from AWS, Captain Avery resigned his commission to
attend law school at the American University Washington College of Law.
Michael L. Avery, Sr., Esq. is proud to have served as an Infantry
Officer and a Captain in the United States Marine Corps. He lives by the
motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He
believes deeply in the justice clients deserve and works hard to achieve
it case after case.
Contact Michael L. Avery, Sr., Esquire The Avery Law Firm 10382 Democracy Lane Fairfax, Virginia 22030 P: 703-462-5050 F: 703-462-5053 Website: https://semperfilawyer.com
Practice Areas
* Auto Crashes * Vehicle Rollovers * Motor Vehicle Fatal Injuries * Commercial Vehicle Accidents * Uninsured / Underinsured Motorist * Claims * Distracted Driver Accidents * Road Rage * Truck Accidents * Hit-and-Run Accidents * DUI Accidents * Passenger Injuries * Motorcycle Accidents * Bicycle Accidents * Pedestrian Accidents * Slip and Fall * Personal Injury
Experience Since 1998, Michael Avery has been the
principal attorney of The Avery Law Firm in Virginia. Previously, from
1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved
the rank of Captain.
Education Mr. Avery received his Juris Doctor
(J.D.) from the American University, Washington College of Law, in
Washington, DC in 1994. Prior to his law studies, he graduated from Ohio
Wesleyan University with a B.A. in History & Politics in 1981.
In a recent case, the Supreme Court of Virginia reviewed the modern criticism of the Dead Man’s statute and the expansive version adopted by the Virginia legislature.
Plaintiff Debra Shumate was involved in an automobile accident with
William Earl Thompson. The lawsuit was originally against Thompson, but
later substituted his estate as the defendant when Thompson passed away
due to reasons not related to the accident. Estate agreed that Thompson
was at fault and conceded the issue of liability and went to trial over
the issue of damages alone.
Shumate described the accident as one with significant collision.
“The evidence presented at trial established that Shumate was stopped
at a traffic light when she observed a sports car driven by Thompson
moving toward the rear of her sedan. She applied the brake in
anticipation of the collision and put her arm in front of her son, Joey,
who was riding in the passenger seat. Joey described the impact as a
‘hard slam’ and said he saw Shumate go forward and hit her head.”
Shumate estimated the speed of the collision at somewhere between 25 to
35 miles per hour. Thompson’s estate asserted that the collision was
a low speed affair. Thompson’s passenger estimated the speed at 5 to 6
miles per hour. Thompson told his son that the speed was 5 to 7 miles
per hour, a hearsay statement which was introduced pursuant to Dead
Man’s statute.
Evidence also showed that Shumate had three automobile accidents
prior to the most recent accident in 2011. “In 1993, a vehicle struck
her car at around fifty-five miles per hour, resulting in her losing
consciousness and suffering arm, leg, and lower back pain. She was
rear-ended in 2001, causing injuries to her neck, knee, and right ankle.
And in 2007, she was a passenger in a vehicle that ran off the road
causing ‘immediate pain in [her] neck and back.’” Evidence showed that
Shumate visited a pain clinic several months prior to the accident and
also nine days after the accident on October 27, 2011, but “[n]otably,
the physician’s notes from the October 27 appointment contain no
reference to the October 18, 2011 collision.”
“Shumate underwent a third spine surgery in March 2012. The surgeon
who performed that procedure testified that Shumate reported the same
pain level before and after the 2011 collision at issue in this case and
that this pain was the reason for the surgery. The surgeon also
reported that Shumate had preexisting degenerative changes in her neck
and spine not attributable to the 2011 collision.” The estate’s expert
also opined that while the emergency room visit was a reasonable
precautionary measure, he was of the opinion that the surgery was
unrelated to the 2011 accident.
Jury returned a verdict of zero dollars on damages and Shumate moved
for set aside the jury verdict. She argued that even the defense expert
conceded that at least the emergency room visit made sense. The motion
was denied and Shumate eventually appealed and raised two assignments
of error: (1) misapplication of the Dead Man’s statute allowing the
deceased’s hearsay statements and (2) trial erred in refusing to set
aside the jury verdict.
The Virginia Supreme Court navigated the long history of the Dead
Man’s statute in Virginia and what led to the 1919 legislative adoption
of the rule. The Court also noted the modern criticism of the Dead
Man’s statute and the expansive version adopted by the Virginia
legislature, but noted that such is the province of the legislature and
not the court. Thus, Plaintiff’s argument “that unless [the Court]
adopt[s] her interpretation of the statute, ‘the party asserting the
Dead Man’s Rule could bring in a plethora of out of court, unreliable
hearsay of what the decedent said to others to bolster unfairly the
decedent’s case’—is actually an accurate statement of the statute.” But
still, the decedent’s description of the accident to his son was
properly admitted.
The Court also rejected the second assignment of error. With respect
to the argument that at least the emergency room bill was a damage that
should have been awarded, the Court explained that “[t]his contention
misconstrues Leivy’s [defense expert’s] testimony. This statement did
not contradict Leivy’s opinion that Shumate suffered no injury from the
collision; instead, it simply acknowledged that it was not irrational
for someone with Shumate’s medical history to visit the emergency room
after any automobile accident to make sure she was not injured.”
Therefore, the judgment of the trial court was affirmed.
The case is Shumate v. Mitchell, Record No. 180012.
Michael L. Avery, Sr.
Michael Leon Avery, Sr., personal injury attorney in Fairfax,
Virginia. Michael Avery has over 20 years of experience in advocating
for clients who have been injured in a wide array of accidents—from car
and truck accidents to bicycle crashes to accidents caused by drunk
drivers.
He became a lawyer after a distinguished career in the U.S. Marine
Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach,
California on January 5, 1959, but grew up in Natick Massachusetts.
After graduating from Ohio Wesleyan University with a B.A. degree in
History and Politics and Government, Michael Avery attended Officer
Candidate School and was commissioned a Second Lieutenant on December
18, 1981. Upon completion of The Basic School, he was selected for
assignment as an infantry officer and attended Infantry Officers Course
in Quantico, Virginia. After graduation from IOC he was assigned to 2nd
Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in
Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery
participated in Operation Colonel Potlatch in the Aleutian Islands as a
Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander.
During the battalion’s overseas deployment to Okinawa in 1983, then
First Lieutenant Avery attended and successfully completed Naval Gunfire
School in the Philippines. Following the 2/7’s overseas deployment, 1st
Lt. Avery was assigned as the 81mm Platoon Commander for 2/7. First
Lieutenant Avery was augmented as a regular officer in August of 1983
and selected for assignment to recruiting duty at 12th Marine Corps
District on Treasure Island, San Francisco, California. His initial
duties were as a Contact Team Officer and serving as a “floating”
Operations Officer for various Recruiting Stations including RS Portland
and RS Seattle. Then First Lieutenant Avery was reassigned as the
Executive Officer of Recruiting Station San Francisco where he completed
his assignment on recruiting duty in August of 1987. Promoted to
Captain, he was assigned to 3rd Landing Support Battalion in Okinawa
Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th
MAU only five weeks prior to deployment for Exercise Balikatan. Working
outside his MOS, he successfully completed the planning and coordination
of combined ship and air embarkation and Combat Service Support plans
for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned
to 9th Marines for Team Spirt as part of the regimental staff.
Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB
prior to his selection to attend Amphibious Warfare School. Upon his
successful graduation from AWS, Captain Avery resigned his commission to
attend law school at the American University Washington College of Law.
Michael L. Avery, Sr., Esq. is proud to have served as an Infantry
Officer and a Captain in the United States Marine Corps. He lives by the
motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He
believes deeply in the justice clients deserve and works hard to achieve
it case after case.
Contact Michael L. Avery, Sr., Esquire The Avery Law Firm 10382 Democracy Lane Fairfax, Virginia 22030 P: 703-462-5050 F: 703-462-5053 Website: https://semperfilawyer.com
Practice Areas
* Auto Crashes * Vehicle Rollovers * Motor Vehicle Fatal Injuries * Commercial Vehicle Accidents * Uninsured / Underinsured Motorist * Claims * Distracted Driver Accidents * Road Rage * Truck Accidents * Hit-and-Run Accidents * DUI Accidents * Passenger Injuries * Motorcycle Accidents * Bicycle Accidents * Pedestrian Accidents * Slip and Fall * Personal Injury
Experience Since 1998, Michael Avery has been the
principal attorney of The Avery Law Firm in Virginia. Previously, from
1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved
the rank of Captain.
Education Mr. Avery received his Juris Doctor
(J.D.) from the American University, Washington College of Law, in
Washington, DC in 1994. Prior to his law studies, he graduated from Ohio
Wesleyan University with a B.A. in History & Politics in 1981.
