West Virginia Lawyer Blog

A West Virginia teenager shot himself in the face with a gun he believed to be unloaded while at a friend's house. The gunshot was not immediately fatal, and the teenager remains at the hospital under observation.

Tony Michael Lawson, age 18, was offered a .38 caliber Smith & Wesson revolver by his friend. He opened the gun and emptied it of cartridges, but did not count how many cartridges he had removed. He then pulled the trigger twice -- once while placing the gun under his chin, once while placing it against his temple. Both times, the gun did not go off. However, when Lawson placed the gun against his head and pulled the trigger again, a bullet shot through his right cheek and came through the other side of his face.

It is unclear what role Lawson's friend played in Lawson's experiment, whether he tried to discourage or encourage Lawson in his activity. Lawson's would be far from the first case of accidental shooting with an "unloaded" gun. In fact, in 2008, there were an estimated 680 accidental shooting deaths and 15,500 shooting injuries. We at the Wolfe Law Firm support responsible gun ownership, and believe that every gun should be treated with the greatest of care.

The question is whether Lawson's friend's parents could be sued under premise liability theory. Homeowners or tenants are liable under this theory when a person is injured in their home after the homeowner failed to properly keep it safe. Most guests in a home are known as "licensees," and under premise liability theory, homeowners have a duty to warn when there is a known hidden condition that could be harmful to the licensee. Lawson, therefore, would have been a licensee in his friend's home. Presumably Lawson's friend's parents owned the .38 caliber revolver. One could argue that the friend's parents knew that the revolver was loaded and dangerous and failed to warn Lawson, thus making them liable.

However, there are some extra factors that complicate the scenario. Lawson's friend likely warned Lawson that the gun was loaded, or else Lawson would not have removed the cartridges before pulling the trigger. Did Lawson's friend know how many cartridges were supposed to be in the revolver? Did he have a duty to know? Did Lawson's friend's parents, if they knew of the danger, even know that Lawson was visiting? If Lawson's friend's parents knew that Lawson was visiting, and how many cartridges were supposed to be removed from the revolver, then a West Virginia premise liability attorney could argue that by failing to warn Lawson, the friend's parents were liable.

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The United States Supreme Court recently dealt a blow to the West Virginia Supreme Court's ruling on nursing home negligence. Back in June, the West Virginia Supreme Court ruled that nursing homes should not be able to insert arbitration clauses into contracts that prevent families of residents from suing if they believe that residents are being mistreated. The U.S. Supreme Court claimed that West Virginia's decision did not conform to the requirements of the Federal Arbitration Act (FAA) of 1925.

The FAA provides that parties can agree via contract to deal with certain state and federal disputes through arbitration rather than litigation. In particular, the FAA states that state law that disfavors arbitration will be preempted by the FAA, unless the arbitration clause is found unconscionable. With arbitration, instead of a judge presiding over the case, an arbitrator -- who is frequently neither a judge nor a lawyer -- hears from both sides and makes a decision. Arbitration clauses are becoming increasingly common: once mainly inserted into employment contracts, they are now regularly inserted into consumer contracts and contracts for other services. In AT&T Mobility v. Concepcion (2011), the Supreme Court upheld the right of AT&T to insert an arbitration clause that barred class action lawsuits.

The West Virginia Supreme Court had found that the FAA did not apply to nursing homes because Congress never intended the FAA to apply to wrongful death or injury lawsuits. The U.S. Supreme Court disagreed, stating that West Virginia's interpretation " was both incorrect and inconsistent with clear instruction in the precedents of this Court." The U.S. Supreme Court ordered the West Virginia Supreme Court to reconsider its decision using the FAA as a framework.

We at the Wolfe Law Firm applauded the West Virginia Supreme Court's earlier decision, and hope that the Court is able to issue a similarly just ruling after looking to the language of the FAA. While arbitration may offer some benefits, such being faster and less expensive, there are certain things that arbitrators should not be allowed to consider. Personal injury and wrongful death situations are very fact-intensive and often the outcome relies upon the type of evidence. These cases demand a longer, more drawn out litigation process so that a West Virginia personal injury attorney can gather all of the necessary documents and witnesses. In arbitration, while both parties may be represented by an attorney, it is not required. This can easily result in situations where the employee or customer is at a disadvantage compared with the company. Furthermore, there is evidence that because arbitration organizations have a contract for services with the company, their arbitrators are inclined to be biased toward the companies in hope of maintaining business. While arbitrators may be experts in a field, nothing requires them to have certain credentials, or even to know the law that is at issue. Worst of all, compared with the court system, the FAA provides for very limited review. A party on the wrong end of an arbitration decision has just three months to appeal to court for review, or the court will confirm the decision and make it binding.

Many critics argue that the FAA was never meant to have the all-encompassing power that the U.S. Supreme Court has given it. Even though the FAA permits arbitration clauses to be struck down for unconscionability, the Supreme Court in AT&T would not accept an unconscionability finding in certain situations (like class actions). It is time for the U.S. Supreme Court to permit a more flexible view of the FAA, one that provides more equal footing to those who are most vulnerable in contract situations -- employees, customers, and relatives of loved ones in nursing homes.

In South Charleston, West Virginia, nine employees from an IHOP restaurant had to be taken to the hospital after inhaling a cloud of hazardous chemicals. The cloud was formed when one employee added the wrong type of chemical to a dishwasher used to clean restaurant hardware.

Two chemicals, a degreaser and a chlorine-based cleaner, were mixed together to create the hazardous cloud. The cloud soon filled the air, smelling strongly of bleach. It was large enough that restaurant diners were able to see it and knew that something was amiss. Restaurant workers then called 911 and evacuated diners to the outside parking lot. When emergency first responders arrived, they set up a staging area in a specific location where the wind was blowing the other way, so the cloud would not reach them.

The offending degreaser is known as Delimer, which contains phosphoric acid. The safety sheet accompanying Delimer warns against mixing it with "chlorinated detergents," or the result could be toxic fumes. Under federal law, employers are supposed to provide employees with safety sheets for any toxic substances used in the course of employment, as well as training on how to safely handle the materials. That may not have taken place at IHOP, given that employees allegedly used Delimer with chlorine bleach repeatedly.

It is more common than one would think for people in homes and businesses to mix bleach with other cleaning products. They do so in order to produce a chemical that cleans easier. But the result is a chlorine gas that, at the least, can irritate the eyes and affect breathing. At worst, in stronger doses, it can cause death from asphyxia or pulmonary edema, especially for people with previous respiratory ailments. Fortunately, although nine IHOP employees were taken to the hospital for treatment, none were seriously harmed. Emergency workers cautioned, though, that other symptoms could manifest later.

We at the Wolfe Law Firm have represented many employees who have suffered injuries while on the job. Most employers are required to carry workers compensation insurance; therefore, if an employee gets injured at work, he or she can collect a fixed amount of payments in place of wages until the employee is able to work again. This is true regardless of whether the employee's conduct was at fault. The main exception to this rule is if the employee was injured as a result of being intoxicated or on drugs. If an employer carries workers compensation, however, the employee cannot elect to file a lawsuit instead. The employee has no choice but to take the workers compensation payments.

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Will Governor Earl Ray Tomblin's proposal to have mine workers tested for drugs distract from other necessary mine safety repairs? That is what Independent Investigator Davitt McAteer and the United Mine Workers fear.

The drug testing element is part of an overall mine safety bill introduced by the governor. Governor Tomblin's bill is one of two being considered, with the other being introduced by House Speaker Rick Thompson. Both bills have provisions for criminal penalties and automatic shutdown of equipment if the methane levels are too high. However, they differ on other crucial elements. Governor Tomblin's bill features the industry-backed drug testing requirement, while Thompson's features more whistleblower protections and family involvement in investigations.

McAteer calls the drug testing provision a "distraction" and emphasizes that it was not what killed mine workers in the 2010 Upper Big Branch disaster. Autopsies of those killed in the disaster showed no illicit drugs in the mine workers' systems. Instead, the cause of death was decidedly due to Massey Energy's failure to follow safety rules governing mine ventilation and the cleanup of coal dust, which can be highly explosive. McAteer pointed out that nearly three-fourths of the mine workers killed in the Upper Big Branch explosion had black lung disease. A strict limit on the legal level of coal dust in underground mines would help prevent this. McAteer recommended legislation requiring mine companies to use coal-dust meters that would measure "explosibility" levels and also require companies to install ventilation monitors that would keep track of fresh-air flow underground. As part of the settlement, Alpha Natural Resources, which purchased Massey Energy Company, has agreed to implement these changes.

We at the Wolfe Law Firm believe that while worker behavior can be at fault for an accident, creating a safe workplace should be the priority -- especially in an industry as dangerous as coal mining. As McAteer noted, West Virginia is still a leader in mining fatalities. What would happen, though, if the law were passed and coal mine workers needed to be tested?

Most employers are required to carry workers compensation insurance. When you or your loved one is injured in a workplace accident, you would be eligible to receive workers compensation in place of wages during the recovery, even if your conduct contributed to the accident. However, there are exceptions. In many states, if drugs or intoxication contributed to the accident, the worker may be denied workers compensation. That is likely the reason mining companies are pushing to have mine workers tested -- because the company could argue that drugs or alcohol caused, or contributed to, the accident -- or that the worker should be de facto denied just for having had alcohol or used drugs. When that happens, it would be best to find a West Virginia personal injury attorney to explain your options.

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