Norfolk Southern Railway Co. v. Sumner, a recent Virginia Supreme Court case involving the Federal Employers’ Liability Act

Michael L Avery Sr, lawyer

“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

References
Law Firm Website: https://averyassociateslaw.com/
Blog: https://michaelaveryesq.law.blog
News: https://attorneygazette.com/michael-avery%2C-virginia
Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney
LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/
News: https://hype.news/michael-avery-esq

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Comments on Quisenberry v. Huntington Ingalls Inc., a Virginia Supreme Court case dealing with Take Home Duty for Asbestos exposure

Michael Avery, Esq., Fairfax, Virginia

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

References
Law Firm Website: https://averyassociateslaw.com/
Blog: https://michaelaveryesq.law.blog
News: https://attorneygazette.com/michael-avery%2C-virginia
Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney
LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/
News: https://hype.news/michael-avery-esq

“How to Prepare for the Initial Consultation with a Lawyer,” what a lawyer would tell you

Michael Avery, Esq., Fairfax, Virginia

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.

References
Law Firm Website: https://averyassociateslaw.com/
Blog: https://michaelaveryesq.law.blog
News: https://attorneygazette.com/michael-avery%2C-virginia
Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney
LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/
 News: https://hype.news/michael-avery-esq

Experienced Personal Injury Law attorney Michael Avery comments on Shumate v. Mitchell, a recent Virginia Supreme Court decision

Michael Avery, Esq., Fairfax, Virginia

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.

References
Law Firm Website: https://averyassociateslaw.com/
Blog: https://michaelaveryesq.law.blog
News: https://attorneygazette.com/michael-avery%2C-virginia
Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney
LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/
 News: https://hype.news/michael-avery-esq