THEIR VIEW: Evidence of 20K walk not yet fatal to injury claims

By The West Virginia Record | Mar 8, 2013



In a premises liability case, federal judge Frederick Stamp sent a lawsuit back to West Virginia state court, where the defendants in the lawsuit intend to introduce evidence that the injured party participated in a 20K walk just six months after an accident allegedly gave her permanent injuries.

Back in 2009, Erica Tamburin suffered injuries after her car was allegedly hit in a Caleba's parking lot by another customer. In 2011, Tamburin filed suit against the customer and Caleba's, claiming that due to the collision, she suffered "lasting and permanent" injuries to her head, neck, back, shoulders, chest, arms, body chemistry, and psyche. She also claimed that Caleba's was partially responsible due to failure to design and maintain safe traffic flow patterns. Then, in May 2010, she allegedly took part in a 20K walk, walking the entire length in two hours and 43 minutes, placing her in the top third of the 173 participants.

Tamburin's attorney claimed that he was aware of the walk and had not yet introduced evidence of Tamburin's actual injuries. Meanwhile, the other driver's attorney claimed to be "pleased" to learn that Tamburin had resumed "normal activities."

The main reason Judge Stamp sent the case back to the lower court was that the defendants could not prove that the amount of damage suffered was more than $75,000. In order to be heard in federal court, a case must either concern a federal question (generally an issue of federal law) or (1) meet the "amount in controversy" threshold of $75,000+ and (2) diversity (plaintiff and defendant must be from different states). Since Caleba's headquarters is in Sydney, Nebraska, and the other defendant is from Pennsylvania, the diversity requirement was satisfied. Only the amount in controversy prong went unmet. With the case returning to state court, both sides will now have the chance to gather evidence from each other.

Certainly from the way Tamburin's case is presented, it does not look good. It is possible that Tamburin was completely faking her injuries -- there is no indication of how fast the other driver was moving, or where the collision occurred.

However, as any West Virginia car accident attorney knows, the true picture is almost always murkier. Most of the injuries were said to be on Tamburin's upper body. If this were the case, it might be possible to walk normally while still suffering from some kind of injury, at least if it turned out that her back injury was not as serious. It might be possible for Tamburin to walk 20K (12.4 miles) while not being able to sit or turn around.

The muscles and bones needed for walking are different from the ones needed for talking on the phone or looking at your computer screen all day. It is even possible that Tamburin's physician suggested walking activities to help herself heal. If Tamburin was an athlete before the accident, this walk might not be as much of a stretch for her as it would be for many others.

That said, if Tamburin's activities reveal that some of her injuries can heal, then obviously she cannot collect for permanent injuries in those cases. The extent to which she can collect is between the two parties and the judge.

The Wolfe Law Firm is an Elkins personal injury law firm founded by Dorwin Wolfe.

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