Keeping the Peace

Written by Rachel Stewart, Esq. Edited by Brian Cafritz, Esq. While restaurants and retailers want customers to patronize their stores, unfortunately, there are times when a particular customer threatens an employee or causes concern for the potential of harm to an employee or other customers.  With so much information on social media and in the news regarding videos of employee-customer interactions in restaurants and retail stores, what can or should an employee of a restaurant or retail store do when confronted with a dangerous or potentially dangerous customer? First and foremost, depending on the circumstances, the customer should be asked to leave the store immediately.  Once the customer is invited to leave and given a reasonable amount of time to comply, his failure to do so will change his status from invitee to trespasser.  As a trespasser, the duties owed to him under the law change.  Under Maryland law, a property owner is only required to refrain from willful or wanton conduct that may injure the trespasser. If a customer is brandishing a weapon of any sort or a fear of imminent or serious injury exists as a result of the customer’s actions, in order to protect your employees and customers, the police should be contacted immediately.  As we’ve discussed in a prior article, if the customer were to use the weapon and injure or kill a customer, the court may consider the timing of an employee’s actions on the risk of harm in determining liability once aware of the possibility of imminent danger. Employees should not be afraid to contact the police if a customer refuses to comply...

Take the $20 Challenge!

This past month, firm president, John Messersmith, gave all KPM attorneys and staff a crisp $20 bill and a challenge: Spend the money however you wish – but spend it on someone other than yourself – and then tell us what you did.  What resulted was a waterfall of good deeds and warm feelings that made the world just a little bit better. About a third of the money was donated to about a dozen different charities, churches or other community organizations.  Others followed their love of animals by helping shelters, SPCA and other animal care groups while another significant percentage helped their local schools or scouting organizations. Among some of the more heartwarming stories, a large group pooled their money in order to fund school lunches for children who otherwise would go hungry during the course of a school day.  Many matched or otherwise contributed additional funds for this cause and as a result, two local schools essentially had their lunch programs funded until the end of the school year.  Countless children had their days immeasurably improved. Given the impact of nutrition on learning, we may never know just how much impact this seemingly small thing had on some of those children. About 20% did all manner of acts of “pay it forward” from buying food or drinks for people behind them to covering medical co-pays for seniors at the drug store. Speaking of seniors, one individual bought and potted a few small plants to bring to residents in a local seniors’ home.  The real gift was in the time spent visiting with each of the recipients. Another...

A Closer Look: Medical Causation through Request for Admissions

In almost every circuit court case involving a bodily injury claim, at some point plaintiff’s counsel sends a set of basic Requests for Admissions regarding medical bills and records. The request always seeks the admission of three (3) basic things as to the plaintiff’s bills and records: 1) admit the bills and records are authentic; 2) admit the bills and records are reasonable in cost and scope; and 3) admit the bills and records are causally related to the accident alleged in the lawsuit. In most cases items 1) and 2) can, or must, be admitted without issue. This essay is concerned solely with item 3) or causal relation. As far back as can be remembered the answer to the “causal relation” request for admission is to deny, on the grounds that it requires an expert opinion and modern discovery rules and physician-patient privilege prevent defense counsel from simply calling the physician on the phone to discuss whether a particular bill or record is causally related to the subject accident (not that many physicians would take the call anyway). Conversely, it seems counter-intuitive that defense counsel could be forced to take a deposition of plaintiff’s treating physician in order to get to the bottom of causation. For the most part plaintiffs’ counsels have allowed the denial to stand without objection but lately there has been a movement to challenge the denial. What have the Courts said about this issue? First, Rule 4:11 of the Rules of the Supreme Court of Virginia provides in part: The answer [to a request for admission] shall specifically deny the matter or set forth...

Willful, Wanton, Gross, and Simple Negligence: Is there a difference? Does it even matter?

Written by Randall C. Lenhart, Jr., Esq. Edited by Willian J. Pfund, Esq. Two individuals walk into a bar.  You would have thought at least one of them would have ducked.  Nevertheless, they both filed separate actions against the owner of the premises asserting negligence claims for creating a hazardous condition and failing to warn of the dangerous condition.  In one of the cases the plaintiff asserted that the owner’s negligent conduct was grossly negligent and willful and wanton while the other plaintiff asserted that the owner acted with simple negligence.  Does it matter?  It could because Virginia law recognizes different types of negligence and the type of negligence claim asserted can affect the damages awarded to a plaintiff, the claims a plaintiff may assert and the defenses that are available to a defendant. The three types of negligence are (1) ordinary or simple negligence, (2) gross negligence, and (3) willful and wanton negligence.  Virginia also recognizes negligence per se claims. Ordinary or simple negligence is a failure to use that degree of care which an ordinarily prudent person would exercise under the circumstances to avoid injury to another.  Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957).  Gross negligence is an utter disregard of prudence amounting to complete neglect of the safety of another.  It must be such a degree of negligence as would shock fair minded men although something less than willful recklessness.  Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis omitted). Willful and wanton negligence on the other hand is acting consciously in disregard of another person’s rights...

The “Two Year” Statute of Limitations & Interpretation of Body Parts Awarded

Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. In Virginia, an employee has two years to file a claim for body parts and to identify those injuries asserted from the work accident. But what happens after the statute of limitations has run? Can an injured worker get around the two-year statute to allow for additional injuries without having the statute of limitations tolled? If the complaints and body parts are closely related, it is certainly a possibility. In the discussion below, we address a case in which an employee injured her shoulder only to be awarded a cervical injury after the two-year statute had passed.  Below you will see the reasoning for how the injured worker was able to get around this two-year statutory requirement and recommendations for how to handle your case to keep this from happening. An employee must assert against the employer “any claim that he might have for any injury growing out of the accident,” within the two-year statute of limitations period found in Code § 65.2- 601. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975). If an employee suffers multiple injuries during the same accident, the employee must assert a claim for each injury, within the statute of limitations period. (Id.) The limitation found in Code § 65.2-601 is jurisdictional. Barksdale v. H.O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977); Shawley, 216 Va. at 445, 219 S.E.2d at 852. “Statutory construction may not be used to extend the rights created by the Act beyond the limitations and purposes set out therein.” Garcia...