Known Hazards

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If you — like many personal-injury victims — are taking over-the-counter (OTC) pain medications, you need to be aware of new proposed FDA (Food and Drug Administration) warnings.

On January 2, 2007, the Washington Post reported that the FDA has proposed stronger warning labels on over-the-counter “painkiller” medications, especially because of the risk of liver and stomach damage. These warnings would apply to all OTC medicines containing acetaminophen and nonsteroidal anti-inflammatory drugs (NSAIDs), including aspirin, naproxen and ibuprofen (in popular products such as Tylenol, Aleve, Motrin, Advil and Tylenol Arthritis Pain).

These medications — often used to treat headaches and muscle pain/discomfort — should be taken at the lowest dose possible for the shortest time possible, especially if one is taking any other medicine(s). There are additional known hazards when mixing alcohol with any of these medicines.

One “take-away” from these proposed warnings, then, is to rid yourself of the common misconception that “over-the-counter” medications are “harmless” and without risk.

A Circuit Court Judge in Virginia recently commented to me and other counsel that the defense of sudden emergency is “dead” in Virginia. I think the Judge was being somewhat facetious in order to underscore the significance of a recent Virginia Supreme Court decision, but the question remains — does sudden emergency still exist in Virginia?

On September 15, 2006, the Supreme Court of Virginia announced its decision in Herr v. Wheeler , 272 Va. 310, 634 S.E.2d 317. In that case Wheeler loses control of her vehicle in heavy rain when it hydroplanes on the wet roadway and suddenly crosses into Herr’s lane of travel. Wheeler had known of the slipperiness of the roadway, and was being “cautious.” The Herr Court (at 288) found that the trial court erred in granting Wheeler’s request for a “sudden emergency” instruction, holding that:

[W]hen abnormal conditions are known and the heightened hazards they create are reasonably foreseeable, the standard of ordinary care the law imposes is higher. Where nature has created hazardous conditions on a highway, and such hazardous conditions are open and obvious, the operator of a motor vehicle is required to take care in the operation of his vehicle proportionate to the known dangerous condition of the highway.

Wheeler had admitted knowing the general dangerous conditions and argued that the sudden emergency was not the known generally dangerous conditions but instead was “one isolated spot” of standing water that she had not known about. The Supreme Court rejected Wheeler’s argument:

The occurrence of standing water on a roadway during a heavy rainstorm is simply another matter of common experience. The hazard this occurrence presents, including the possibility of hydroplaning, is one the driver of a vehicle along the roadway must anticipate and exercise reasonable care to avoid. Although Wheeler had not encountered standing water on the roadway as she traveled along Route 250 and may not have seen the accumulation of water at the point on the roadway her vehicle began to hydroplane, just as in Harrah, such an occurrence was not an “unexpected happening.”

So, is sudden emergency dead in Virginia? The answer is no. But in the many cases in which a defendant claims that weather conditions created a sudden emergency, that defendant better be able to say that “my day was sunny and bright when the sky suddenly opened-up right before my eyes and my car took on a life of its own.” If that defendant knew of the dangerous conditions generally and was merely suprised by an isolated spot of the same condition, he has a sudden emergency not of God’s making but of his own making. The Supreme Court did not drop the guillotine on the doctrine of sudden emergency, but the Court did drop the guillotine on any driver who knew of the dangerous conditions and comes to court claiming a “sudden” emergency.

Virginia defendants, take it from Virginia plaintiffs — don’t make excuses and don’t make frivolous claims.

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