New 4th Circuit Ruling Limits Foreseeability Argument on Slip and Fall Cases on Ice

Written by Brian Cafritz, Esq. Businesses can control many factors on their property, but they cannot control the weather or alter the laws of physics. Water freezes at 32°F. Ice is slippery. Everybody knows the basic facts of the physical properties of water and ice. Among attorneys, there’s another equally well-known fact: Whenever a plaintiff slips and falls on ice—whether it is in a parking lot, a sidewalk, near a spigot or fountain or anywhere else—she will almost always argue that the defendant should have known of the condition because it was foreseeable that water would turn to ice and create a slip hazard. The Fourth Circuit Court of Appeals, however, has just ruled that knowing water freezes is not enough to establish foreseeability. In the case of Thomas v. Omni Hotels, 2018 U.S. App. LEXIS 21459 *; 2018 WL 3689248 (4th Cir. August 2, 2018), an Omni Hotel guest slipped and fell on a 22° Fahrenheit day after ice had formed on the floor near a semi-enclosed fountain. The Plaintiff argued that the ice must have formed from water blown out of the fountain by the wind. At the trial court level, the US District Court granted defendant’s summary judgment motion, and held that the Plaintiff had failed to create a genuine dispute of material fact as to whether Omni had actual or constructive notice of icy conditions or water escaping from the fountain. On appeal, the Fourth Circuit affirmed the District Court’s dismissal. Despite the higher duty of care placed upon an innkeeper, Virginia law still required the Plaintiff to show actual or constructive knowledge of the unsafe condition. In this case, there...

Asleep at the Wheel: When Does Exhaustion While Driving Arise Out of the Employment?

Written by Joe Smith, Esq. Edited by Rachel Riordan, Esq. It is common for claimants to request workers’ compensation benefits after being involved in motor vehicle accidents. As in all claims, the motor vehicle accident must “arise out of” the employment to be found compensable. Motor vehicle accidents that happen on public roadways may be found to arise out of the employment subject to the “actual risk test.” Mktg. Profiles, Inc. v. Hill, 17 Va. App. 431, 434-35, 437 S.E.2d 727, 729-730 (1993). Under the actual risk test, it is the claimant’s burden to prove that the accident arose from an actual risk caused by his presence on the street. Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 730, 607 S.E.2d 730, 732 (2005) (citation omitted). So what happens if a claimant is injured in a motor vehicle accident after falling asleep at the wheel? This question was recently considered by the Full Commission in Norris v. ETEC Mechanical Corporation, JCN: VA00001317384 (June 25, 2018). In Norris, the claimant was involved in a motor vehicle accident while driving home in a company vehicle at the end of the day. He was 200 yards from his home when he ran off the road and struck a tree. He suffered severe injuries to multiple body parts as a result of the accident. It was undisputed that the claimant ran off the road because he fell asleep at the wheel. It was also undisputed that he was in the course of his employment because the employer provided the means of transportation to and from his home. The claimant testified that...

Riding Horses is an “Intrinsically Dangerous Activity,” but Apparently Carriage Riding is NOT

Written by SK Stahling, Esq. Edited by Bill Pfund, Esq. You may remember that KPM’s own Bill Pfund authored this article in March 2017 discussing Virginia’s Equine Liability Act, § 3.2-6200 et seq.  At that time, very few Virginia courts had analyzed the breadth or scope of the Act.  Earlier this summer, Rockbridge Circuit Court applied the Act in Paz v. Layman and determined that the scope of immunity may not be as broad as the General Assembly intended. To recap, the Virginia Equine Liability Act says that no person shall be liable for an injury to or the death of another resulting from the intrinsic dangers of equine activities and that no participant shall have a claim against another person for injury or death of the participant resulting from these intrinsic dangers.  The Act goes on to define those things which are included “equine activity” – this list includes “rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor,” which could arguably include horse-drawn carriage rides. Important to the most recent opinion, the Act further defines an “equine activity sponsor” as “any person or his agent who, for profit or not for profit, sponsors, organizes, or provides the facilities for an equine activity . . . and operators, instructors, and promoters of equine facilities, including stables, clubhouses, ponyride strings, fairs, and arenas where the activity is held.” In Paz v. Layman, the plaintiffs allege personal injury as a result of a carriage trip gone haywire.  Allegedly, an employee of the Virginia Horse & Carriage Co., which...

Joint Tortfeasors: Using Joint & Several Liability and Contribution to your Advantage

Written by Delia DeBlass, Esq. Edited by Bill Pfund, Esq. There are certain considerations when dealing with a case that has joint tortfeasors as co-defendants. Joint tortfeasors are two or more persons whose negligence in a single accident or event causes damages to another person. Often such a situation occurs when a plaintiff injured in a multi-vehicle car accident where there is a disagreement as to the cause of the accident. While not mandatory, a plaintiff does have the option of suing all joint tortfeasors in a single action, as co-defendants. If, however, a plaintiff only files against one joint tortfeasor, that named joint tortfeasor then has the option of bringing into the suit any and all additional tortfeasors as third-party defendants. Regardless of how plaintiff choses to bring suit, joint tortfeasors are held jointly and severally liable for damages. This means that each tortfeasor could be responsible for the entire amount of the judgment against all joint tortfeasors. Because joint tortfeasors are held jointly and severally liable, there is also a right to contribution among tortfeasors. Contribution is a common law concept that has roots in equitable principles. In this context, it means that if one joint tortfeasor has been sued and has been made to pay a certain sum to plaintiff, then that tortfeasor may sue other tortfeasors who may also be liable to the plaintiff in order to recover some of the money paid. For example, if a plaintiff were to bring suit against only one tortfeasor, Tortfeasor #1, and Tortfeasor #1 is found to be liable to the plaintiff, Tortfeasor #1 can then bring suit...

Ripped in Roanoke

Have you ever noticed that successful people are seldom successful at only one thing? Successful people tend to have character attributes that translate across disciplines to allow for success in multiple arenas.  When considering attorneys to join the KPM team, activities outside the law are just as important as those credentials evident in a legal career resume.  KPM is proud of the team members who are marathon runners, celebrated opera singers, competitive cyclists, and globally-ranked Ironmen. The tenacity these individuals show in these personal pursuits tends to be every bit as evident in their legal practice.  Consider KPM’s Southwest Virginia office’s Matt Liller.  Matt is a successful attorney respected by peers, clients, and opposing counsel, working hard to build his practice in Virginia and West Virginia.  But Matt works equally hard at his bodybuilding practice – and the practice of the law and bodybuilding indeed have a lot in common. Matt begins most weekdays by 4:00 AM to get in a workout and two meals before getting to the office.  Alongside the legal pads and pens, you’ll always find a protein bar in his briefcase at any deposition to squeeze in a meal if necessary.  He has taken note that in both bodybuilding and legal practice the biggest differences are usually made when nobody is watching. Matt says, “The hard work behind the scenes allows you to shine when the lights are on.” Matt prides himself in being cordial and professional, but when the inevitable times come to be stern or take a hard stand for a client, he’s found that his muscular stature can help get his point...