Personal Injury & Wrongful Death

Dedicated Personal Injury Attorneys

Personal injury law holds people and businesses responsible for the harm they cause others. Since Gianola Barnum & Jecklin, L.C. was founded in 1985, our personal injury attorneys in West Virginia aggressively defend clients who suffered a physical, financial, or emotional injury or lost a loved one due to the negligent conduct of others.

Our West Virginia personal injury attorneys perform an extensive investigation of your case to preserve evidence and furnish the expert witnesses necessary to obtain the settlement or jury award you deserve. We are ready to take on the insurance companies and negotiate for an equitable settlement to cover your losses.

We Fight to Resolve Your Case

If we are unable to resolve your personal injury matter out of court, we do not hesitate to litigate your interests in a court of law. When faced with aggressive legal pursuit by an experienced, accomplished personal injury attorney, insurance adjustors and lawyers representing the responsible party are often more willing to negotiate in good faith rather than fight in court.

Our West Virginia personal injury law firm can assist you in many types of personal injury situations, including the following:

Why You Need Us on Your Side

If you or a loved one incur serious injuries, such as traumatic brain or spinal cord injuries, due to the negligence of a person or business, you may be entitled to monetary compensation to cover expenses such as medical and nursing costs, as well as lost income.

But if you fail to consult a qualified West Virginia personal injury lawyer soon after your accident or attempt to forego legal representation, your inexperience could cause you to make costly mistakes or miss opportunities to recover all of the compensation you deserve to cover your losses.

Whether you need help with a personal injury claim, or any matter related to family, business, estate planning or real estate law, the attorneys at Gianola Barnum & Jecklin, L.C. take pride in offering you caring, timely, results-oriented service that meets your needs and goals.

Personal Injury Details

Alienation of a Spouse's Affections

Under the common law, there existed a tort for the alienation of a spouse’s affections. Although most states have enacted statutes that have abolished the tort, there are approximately nine states that permit such a tort action to be brought against a third party.

An action for alienation of a spouse’s affections may be brought against a third party who purposely alienates one spouse’s affections from the other spouse. The third party is liable to the other spouse for the harm that he or she caused to the other spouse’s legally protected marital interests. A spouse’s legally protected marital interests include the affection, society, and companionship of the other spouse, exclusive sexual relations with the other spouse, and the services and support of the other spouse.

Under early common law, only a husband could bring an action for alienation of his wife’s affections. A wife was not able to bring the action because she was not able to file a lawsuit in her own name and because her husband was entitled to the proceeds of any action that was brought on her behalf. After married women’s statutes were enacted, a married woman was entitled to maintain lawsuits in her own name and thus was able to bring an action for alienation of her husband’s affections.

An action for alienation of affections requires a direct interference with the marital relationship. One act of sexual intercourse may be sufficient for the bringing of the action. A spouse is not required to prove that the act or acts of a third party caused the spouse to incur a financial loss. A spouse is only required to prove loss of affections. A loss of affections may be proven by the other spouse’s refusal to cohabitate with the spouse, by a separation, or by a divorce. The fact that the two spouses were separated or were unhappily married at the time of the third party’s act or acts does not preclude a spouse from recovering damages from the third party. As long as there was some affection between the spouses, the spouse is entitled to an action against the third party for alienation of affections.

In order for a third party to be liable to a spouse for alienation of affections, the third party must have engaged in some type of affirmative conduct. Inaction on the part of the third party is insufficient for the action. The act or acts must have been committed with an intent to induce or to achieve the alienation of affections. The fact that the third party became the object of the other spouse’s affections is not enough. The third party must have actively participated in or encouraged the alienation of affections.

In order for a third party to be liable to a spouse for alienation of affections, the spouses must be legally married. A common law marriage is sufficient if the common law marriage is valid. A marriage that is voidable as result of the spouses’ incapacity is sufficient as long as the marriage has not been annulled. If the spouses subsequently divorce, the action may be maintained as long as the spouses were legally married at the time of the alienation of affections.

In an action for alienation of affections, a spouse is entitled to recover damages from a third party for the loss of affections and for emotional distress. The amount of damages will depend upon the nature of the marital relationship at the time of the third party’s act or acts. The damages may be reduced if the spouses had an unhappy relationship prior to the third party’s act or acts.

Criminal Conversations With a Spouse

Under the common law, there was a tort for criminal conversation with a spouse. Although most states have enacted statutes that have abolished the tort, there are a few states in which a spouse may bring an action against a third party for the tort.

Criminal conversation with a spouse is defined as having sexual intercourse with the spouse. A third party is liable to the other spouse for the harm that was caused to the other spouse’s legally protected marital interests. A spouse’s legally protected marital interests include the affection, society, and companionship of the other spouse, exclusive sexual relations with the other spouse, and the services and support of the other spouse. Either a husband or a wife is entitled to bring an action for criminal conversation with a spouse.

A spouse is entitled to bring an action against a third party for criminal conversation if the third party, without the consent of the spouse, engages in sexual relations with the other spouse. The spouse does not need to incur any other loss. One act of sexual relations is sufficient for the action. If the third party also alienates the affections of the other spouse or if the act of sexual relations results in a loss of services on the part of the spouse, the spouse may be entitled to additional damages.

The tort of criminal conversation applies when a third party rapes a married woman. The tort also applies to a third party who commits an act of adultery with a spouse, even if the spouse who is participating in the act of adultery solicits the act. Although the consent of the spouse who is bringing the action is a defense to the tort of criminal conversation, the consent of the spouse who is participating in the act of adultery is not a defense.

A third party does not need to know that a person is married in order to be liable for the tort of criminal conversation. A third party who engages in sexual relations with a person assumes the risk that the person might be married. Also, the fact that the person misrepresents his or her marital status is not a defense.

A spouse who is successful in his or her action for criminal conversation is entitled to damages for his or her emotional distress as a result of the act of sexual relations. However, if the spouse neglected his or her spouse, his or her damages may be reduced. If the other spouse repeatedly engaged in acts of sexual intercourse with the third party, the spouse’s damages may be increased. The spouse may also be entitled to damages for his or her loss of exclusive cohabitation, for his or her loss of affections, or for his or her loss of services. The spouse may further be entitled to damages for any medical expenses that he or she incurred as a result of the third party’s actions.

Liability of Airport Owners and Operators

Most airports are owned by state governmental units or state political subdivisions, such as cities, counties, or airport districts. Governmental units or political subdivisions are generally not liable for torts that result from the performance of a governmental function. Governmental units or political subdivisions are only liable for torts that result from the performance of a proprietary function.

The maintenance and operation of an airport by a city, county, or other public agency is considered in most states to be a governmental function. Therefore, when an airport is owned by a governmental unit, the airport is generally immune from liability in tort or negligence actions that may be brought by passengers, by visitors, or by persons on the ground.

If an airport is owned by a governmental unit and is not immune from liability for a tort or a negligence action that may be brought by passengers or by persons on the ground, the passengers or the persons on the ground may be limited as to the amount they can recover from the airport under state tort claims acts. Most state tort claims acts limit liability for personal injuries or for property damage to a specific dollar amount. Most state tort claims acts do not allow punitive damages. Plaintiffs seeking damages under state tort claims acts are required to present written notice of their claims against the governmental units within a certain number of days after their claims arise.

If an airport is owned by a private person or a private entity, the airport is not immune from liability for personal injury or property damage that occurs as a result of the operations of the airport. Owners and operators of airports owe a duty of ordinary care in the operation and maintenance of the premises of the airports. When the owners or operators park or store airplanes, the owners or the operators have a duty to use ordinary care in preventing damage to the airplanes.

The Federal Aviation Administration (FAA) is responsible for certifying airports that serve airplanes that have a seating capacity of more than 30 passengers. The FAA requires airport owners and operators to prepare airport operations manuals. Such manuals usually contain standards of conduct, which standards govern the operation of the airport and set forth the procedures that are to be followed in the event of personal injury or property damage on an airport’s premises.

Pharmacists' Duty to Warn

A patient who has an adverse reaction to a prescription drug may file a personal injury action against the pharmacy that sold the drug, claiming that the pharmacy negligently failed to warn the patient of the risks associated with taking the drug. The outcome of such a case will depend on whether the pharmacy had a duty to warn the patient.

In most states, a pharmacist has no legal duty to warn a patient of the risks of taking a particular drug. Such states have adopted the “learned intermediary doctrine.” This doctrine states that a patient’s physician, rather than his pharmacist, has the duty to warn of the risks of a drug because only the physician knows the patient’s medical history. However, if a pharmacist chooses to give a warning, the information must be correct. If a patient is injured as a result of a pharmacist’s incorrect warning, the pharmacist may be liable for the patient’s injury.

In some states, a pharmacist has a legal duty to warn a patient of the risks of taking a particular drug. In addition, the information provided by the pharmacist must be correct.

Statutes of Limitations in Tort Cases

A statute of limitations is the time period in which a plaintiff must file a lawsuit against a defendant. A statute of limitations benefits the defendant. It gives the defendant an opportunity to defend the lawsuit while witnesses are available and while the facts are fresh in the minds of the witnesses. The plaintiff is barred from filing a lawsuit after the statute of limitations has expired.

A statute of limitations in a tort case limits the time in which a plaintiff may file his or her lawsuit after his or her cause of action has accrued. A cause of action normally accrues when the plaintiff sustains damages. However, under the delayed discovery rule, the plaintiff’s cause of action may not accrue until the plaintiff discovers his or her injury or until the plaintiff should have discovered his or her injury with reasonable diligence.

A statute of limitations is a privilege that is granted to a defendant. If the defendant fails to properly raise the defense of the statute of limitations, it will be considered to be waived.

If a plaintiff amends his or her complaint, which amendment does not add a new cause of action against a defendant, the amendment will relate back to the original complaint for purposes of the statute of limitations. In other words, the amendment will not be subject to the statute of limitations if the original complaint was timely. If the amendment adds a new cause of action, a new counterclaim, or a new defense, the amendment does not relate back to the original complaint and is not protected by the filing of the original complaint for purposes of the statute of limitations.

A statute of limitations is an affirmative defense. In order to rely on a statute of limitations as a defense, a defendant must specifically raise and plead the defense. A mere denial in an answer to a complaint will not raise the defense. If the defendant fails to specifically plead the defense, it will be deemed to be waived.

A defendant who raises a defense based on a statute of limitations has the burden of proving that a plaintiff’s cause of action is barred by the statute of limitations. If the defendant raises the defense based on the plaintiff’s delay in serving process on the defendant, the defendant has the burden of proving that the delay was the plaintiff’s fault. The plaintiff then has the burden of explaining the delay.

The statutes of limitations that are applicable to tort cases depend upon each state’s statutes. In most states, tort actions, such as personal injury cases, are governed by a two-year to four-year statute of limitations. Some tort actions, such as libel or slander, may be governed by a one-year statute of limitations. Healthcare and medical malpractice claims are generally governed by not more than a two-year statute of limitations. Some states have enacted 10-year statutes of limitations for actions that are based on defective or unsafe real property, defective construction, or defective improvements to real property. Each state’s statutes must be consulted in order to determine the applicable statute of limitations for a particular cause of action.