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PA & WV Accidental Death Lawyer Blog

This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.

  • Motorhome Wrongful Death Case Will Proceed to Trial

    Like many people in Pennsylvania, on September 11, 2011, John Borzik decided to perform maintenance work on a motorhome he owned.  While trying to find the source of an antifreeze leak, Mr. Borzik positioned himself under his motorhome on his back near the right side rear axle.  During the maintenance work, the frame of the motorhome dropped onto Mr. Borzik’s head and chest.  He tried using his cellphone to call for help but tragically died from asphyxiation.  A Pennsylvania State Trooper performed an investigation and found that the motorhome “had a faulty pressure release valve that serviced the air suspension system.”

    Later, Mr. Borzik’s sister, who served as the personal representative and plaintiff, filed a wrongful death and survival action lawsuit against several defendants.  Rapchak v. Haldex Brake Products Corp., U.S. Dist. Ct. W.D. of Pa.; Civil Action No. 2:13-cv-1307.  After discovery, the only claim that remained was a products liability claim against the manufacturer (Haldex Brake Products Corp.) of the height control valve, which had been used in the air suspension system of the motorhome.  The manufacturer recently filed a motion to exclude the opinion of plaintiff’s expert that a screen filter would have prevented debris from entering into the height control valve and thereby would have prevented the valve from sticking open and releasing air.  The manufacturer also asked the court to find in its favor on a motion for summary judgment, which would result in the claims against the manufacturer being dismissed and the case being closed.

    On March 16, 2016, the United States District Court for the Western District of Pennsylvania, denied both motions filed by the manufacturer.  Rapchak v. Haldex Brake Products Corp., 2016 WL 1019534 (W.D. Pa. Mar. 15, 2016).  The court found that the expert used a reliable methodology in reaching his opinion regarding the height control valve in causing the accidental death.  The court also found that there were issues of material fact regarding whether the height control valve was in a defective condition.  Therefore, the court concluded a jury must decide whether the height control valve was defective and caused the wrongful death of Mr. Borzik.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia.  If you have questions about the above, or your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

     

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  • Commonwealth Court of Pennsyvania Finds it was for the Jury to Decide Whether Municipalities had Notice of a Dangerous Condition of a Road and Could Have Used Traffic Devices to Prevent a Fatal Accident

    In certain circumstances, a vehicular death can be avoided through the state or municipalities installing traffic devices to make a road less dangerous.  In Angell v. Dereno, 2016 WL 913139 at *1 (Pa. Cmwlth. Mar. 10, 2016), the Commonwealth Court of Pennsylvania addressed whether the trial court erred in granting summary judgment (this is a finding by the trial court that there are no issues for a jury to decide) to Ross Township and West View Borough (“Ross and West View”) in a wrongful death action where the mother sought to recover damages for the accidental death of her son, which occurred when the son’s motorcycle was clipped by an oncoming truck on a road near the boundary of Ross and West View.  At the time of the accident, the son was heading down a hill and the truck was heading up the same hill, which had a limited sight distance.  The mother argued the road was dangerous where the accident occurred and that Ross and West View had notice of the dangerous condition.

    In reversing the trial court, the Commonwealth Court of Pennsylvania found that it was for the jury to decide whether Ross and West View had notice of the dangerous condition of the road and whether the danger could have been addressed with Ross and West View installing traffic control devices.  In fact, the mother’s expert, Dr. Ronald Eck, recommended warning signs that stated “Limited Sight Distance” and “Danger Blind Hill Slow”.  He also recommended that a stop sign should have been installed, which would have prevented the accident.   Thus, a jury will decide whether Ross and West View were negligent.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia.  If you have questions about the above, or your or your family’s legal rights regarding accidental or wrongful death or survival, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

     

     

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  • Triathlete’s Widow Can Maintain Wrongful Death Action Against Organizer Despite Triathlete Executing Waiver and Release Form

    Following its prior decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), the Superior Court of Pennsylvania found in Valentino v. Philadelphia Triathlon, LLC, 2015 WL 9630456, *10 (Pa. Super. Dec. 30, 2015), that a triathlete’s widow could maintain a wrongful death action despite the triathlete executing a waiver and release form.

    As with other races, such as marathons, 10Ks, 5Ks, etc., the triathlete was required to register for the event.  The registration required the triathlete to pay a fee and execute a waiver and release form.

    The triathlete started the swimming portion of the race, but he failed to complete it.  Sadly, his body was found the next day in the Schuylkill River.

    After the widow filed a wrongful death action, the organizer of the triathlon sought summary judgment on the wrongful death action claiming the waiver and release form barred the lawsuit.  The trial court agreed with the organizer.  Nevertheless, the Superior Court of Pennsylvania reversed the trial court and concluded that based on Pisanso, the release did not bar the wrongful death action in Pennsylvania as it is an independent cause of action and “is not derivative of the decedent’s rights at [the] time of death.”  Id.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia.  If you have questions about this court opinion, or your or your family’s legal rights regarding accidental or wrongful death or survival, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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  • Nursing Home Arbitration Agreement Not Binding on Non-Signatory Wrongful Death Beneficiaries

    In Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 317 (Pa. Super. 2015), the Superior Court of Pennsylvania addressed whether an arbitration agreement with a nursing home facility signed by the decedent’s authorized representative was binding on the wrongful death beneficiaries when a wrongful death claim was filed on behalf of the beneficiaries arising from a negligence claim.  The Superior Court found that a wrongful death action is a separate action belonging to to the beneficiaries.  As such, “an arbitration agreement signed by the decedent or his or her authorized representative is not binding upon non-signatory wrongful death beneficiaries.”  Id. at 321.   Additionally, the Superior Court refused to separate the survival act claim from the wrongful death claim so that the survival act claim could proceed in arbitration.  In doing so, the court held: “the wrongful death beneficiaries’ constitutional right to a jury trial and the state’s interest in litigating wrongful death and survival claims together require that they all proceed in court rather than arbitration.”  Id. at 328.

    This is an important decision for anyone with a loved one in a nursing home.  Just because an arbitration agreement is signed by a decedent or authorized representative, which is intended to take away the right to a jury trial, this does not mean it is binding on wrongful death beneficiaries.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia.  If you have questions about this court opinion, or your or your family’s legal rights regarding accidental or wrongful death or survival, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

     

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  • Basics on the Wrongful Death Action in West Virginia

    This post focuses on the very basics of a wrongful death action in West Virginia.  W.Va. Code § 55-7-5 et seq.

    What is a wrongful death action in West Virginia?  West Virginia permits the recovery of damages due to the death of a person from a wrongful act, neglect, or default.  W.Va. Code § 55-7-5.  If damages are recovered, they “shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who where financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution ….”  W.Va. Code § 55-7-6(b).  However, “if there are no such survivors, then the damages shall be distributed in accordance with the decedent’s will or, if there is no will, in accordance with the laws of descent and distribution” as contained in the West Virginia Code.  W.Va. Code § 55-7-6(b).

    Who can bring a wrongful death action in West Virginia?  The wrongful death action “shall be brought by and in the name of the personal representative of such deceased person….”  W.Va. Code § 55-7-6(a).

    What are the recoverable damages in a wrongful death action in West Virginia?  A jury, or if there is no jury, the court, may award a broad array of damages.  The authority for this is in W.Va. Code § 55-7-6(b): “In every such action for wrongful death, the jury, or in a case tried without a jury, the court, may award damages as to it may seem fair and just, and, may direct in what proportions the damages shall be distributed ….”  Further, the wrongful death statute specifies that “[t]he verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.”  W.Va. Code § 55-7-6(c)(1).

    What is the statute of limitations for a wrongful death action in West Virginia?  “Every such action shall be commenced within two years after the death of such deceased person, subject to the provisions of section eighteen, article two, chapter fifty-five.”  W.Va. Code § 55-7-6(d).

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