Written by Jessica, Gorman, Esq. Edited by Bob McAdam, Esq. Another opinion recently issued by the Full Commission serves as a reminder that every case is fact specific. In Agyemang v. The Gardens at Warkwick Forest, JCN VA00001874767 (January 10, 2023) the Full Commission reversed and vacated an award issued by the Deputy Commissioner. In doing so, the Commission interpreted the “actual risk test.” The Claimant, a food attendant, alleged that she sustained an injury by accident to her left hand on May 1, 2021. She sought medical benefits and periods of indemnity benefits. The Employer raised numerous defenses against the claim, including that the Claimant did not suffer a compensable injury by accident arising out of and in the course of her employment. The Deputy Commissioner concluded that the Claimant proved that her injury arose out of her employment. The Deputy Commissioner summarized the evidence as follows: The Claimant testified that as she was placing several small, light plastic coffee mugs atop a refrigerator in a kitchen in the course of her work as a food attendant, she jammed her left hand on the refrigerator. The histories contained in the available medical records as well as her report of injury to the employer track the Claimant’s credible testimony regarding this incident. Although the Claimant’s injury may have occurred as a result of her own inadvertence, a Claimant’s negligence does not bar an award of compensation and it is found that her injury occurred as a result of an accident as defined under the Act. This incident is an “identifiable incident or sudden precipitating event,” that occurred as a...
Written by Daniel Royce, Esq. Few public risk issues are as poignant, topical, and controversial as liability faced by law enforcement officers for actions undertaken in the line of duty. Our TVs and Social Media feeds are replete with stories of officers accused of bad behavior in the line of duty. Often, these matters result in civil actions where Courts are thrust into the difficult role of deciding cases wrought with emotion in an area of law not always well understood. The Supreme Court of Virginia was recently faced with such a case in the matter of Colas v. Tyree, 2023 Va. Lexis 4*, Record No. 211226 (Sup. Ct. Va., Jan. 26, 2023). As often the case, the facts underlying this matter are tragic. On February 9, 2019, Officer Bradley Colas shot and killed Jeffrey Tyree. The Estate of Tyree brought an action for gross negligence and battery. The Estate alleged that police (and specifically Colas) shot Tyree while he was unarmed and lying on the ground. The trial Court denied Colas’ motion to strike, and the jury found Colas liable and awarded damages to Tyree’s Estate on the battery count only. Colas appealed the matter on the grounds that his Motion to Strike should have been granted because at the time he discharged his weapon, he was acting in defense of another, and thus the fatal shot was justified. In other words, Colas was asserting he had proved his affirmative defense as a matter of law. The Court found that the Estate’s own un-contradicted evidence established that Colas was justified, and applied the adverse party witness rule in...
Written by Daniel Royce, Esq. In the world of public risk, the doctrine of sovereign immunity is often raised but seldom understood. Courts frequently grapple with how far the doctrine should extend and under what circumstances it can be applied. The doctrine of sovereign immunity is “alive and well” in Virginia. Commonwealth ex rel. Fair Hous. Bd. V. Windsor Plaza Condo. Ass’n, 289 Va. 34 (2014). The Virginia General Assembly has employed an incremental approach to enacting a limited waiver of immunity in the Virginia Tort Claims Act. AlBritton v. Commonwealth, 299 Va. 392, 399 (2021). However, claims against localities and employees continue to be governed by common law principles. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244-245 (2004). A new ruling from the Circuit Court of Prince William County (Va) has clarified these issues a little more. The case involved a former public school student and resident of Prince William County. This former student filed a lawsuit alleging negligence by current and former Prince William County Public School officials. The purported negligence of these officials allegedly resulted in her being the victim of sexual assault while a special education student at C.D. Hylton High School. This suit was a revival of a similar action originally filed in January 2019 against the Virginia Board of Education, Prince William School Board, David Cassady (former Superintendent), Michelle Roper (Special Education Director), and Steven Walts (Principal of C.D. Hylton High School). In the prior suit, defendants’ denied all wrongdoing and argued in favor of dismissal on the basis that the plaintiff did not sufficiently show negligence. ...
Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. Between March 16, 2020 and July 8, 2020, the Supreme Court issued several “emergency orders” in response to the COVID-19 pandemic, which tolled all statute of limitations. Since then, there has been considerable debate as to when the tolling period created by these emergency orders runs. In fact, the courts in Virginia have essentially been split on the issue. See Tinsley v. Clarke, 2022 U.S. Dist. Lexis 56625 (W.D. Va. March 28, 2022) and Proctor v. AECOM, Inc., 2021 U.S. Dist. Lexis 162142 (E.D. Va. August 26, 2021); see also English v. Quinn, 2022 Va. Cir. Lexis 7 (Roanoke City Cir. Court Feb. 7, 2022); but then see Ceriani v. Dionsysus, Inc., 2022 U.S. Dist. Lexis 73499 (E.D. Va. April 20, 2022); Heck v. Guion, 108 Va. Cir. 179 (City of Chesapeake Cir. Court June 4, 2021) and Brown v. State Farm, 107 Va. Cir. 343 (Culpeper County Cir. Court March 11, 2021). In general, plaintiffs have taken the position that the emergency orders tolled and extended all statutes of limitations. Thus, plaintiffs argued they had an additional 126 days (the time between March 16, 2020 and July 8, 2020) to file their Complaint in a personal injury action. For example, in Virginia, the statute of limitations for a personal injury suit is 2 years. Assume the date of an automobile accident was November 19, 2019. Generally, the time for plaintiff to file his or her suit in such a case would have run by November 19, 2021. However, due to these emergency orders, a plaintiff would likely...
Written by Brian A. Cafritz, Esq.Virginia has long had a defense-friendly one-year statute of limitations for defamation claims. Under Virginia Code § 8.01-230, the accrual of right of action occurs when injury is sustained. In the context of a defamation action, the cause of action accrues and the statute of limitations begins to run when the injury to reputation is sustained by publication. Va. Code § 8.01-230; see, Weaver v. Beneficial Finance Co., 199 Va. 196, 200-01, 98 S.E.2d 687 (1957).Over the last hundred years, it has been relatively easy to calculate the accrual date for the defamatory acts. If one made a statement or drafted a written letter, the date of publication of the statement or letter became the accrual date. For example, if a photocopy of the same letter was copied and mailed to different recipients on different dates, the law considers each mailing of the same letter to be a new publication that creates a separate cause of action with the statement being heard on different dates in different locations and causing different damages. As a result, based on the date of publication, each mailing of the photocopied letter has its own accrual date for the purposes of the statute of limitations. See Bradford J. Brady v. Stefanie Marshall and M3-Marshall Contracting & Masonry, Inc., (Cir. Ct. Albemarle County, Case No. CL19-1701, J. Higgins, 2021).However, in today’s society, communications through letters is becoming less common. Written letters had been replaced by emails and texts. But today’s technology has changed that as well. The introduction of social media platforms, pod casts, and multimedia communications complicated that calculus...
Chicago, IL, June 6, 2022 — The Sports and Entertainment Risk Management Alliance (SERMA) announces the appointments of Scott W. Bermack, Weber Gallagher co-chair of the firm’s General Liability Practice and managing partner of the New York Office, and KPM LAW’s Brian A. Cafritz, Esq., Managing Partner of the firm’s Leisure & Entertainment Litigation Group as well as the Restaurant & Retail Litigation Group, to the Advisory Board. In this new role as Advisory Board Members, Bermack and Cafritz will focus on the goals of increasing SERMA’s membership and quality content. With the appointment of Cafritz and Bermack, the advisory board now comprises 21 members, 18 of whom are industry executives. SERMA is the first risk management association devoted entirely to the sports and entertainment industries. It is an organization of risk managers, claims managers, general counsels, outside counsel and other associated professionals who work in the sports and entertainment field. “I am excited to welcome Scott and Brian to SERMA’s advisory board, which is made up of some of our industries’ most dynamic and engaging leaders,” said Rich Lenkov, SERMA’s founder and a capital member of Downey & Lenkov. “We look forward to their contribution to this group as we share best practices, common solutions, and industry trends.” “SERMA fills a gap in the sports and entertainment industries and I’m thrilled to join the association’s advisory board, which is made up of the best and brightest in their fields,” said Bermack. “I look forward to providing value to the board, the association, and SERMA members.” Adds Cafritz, “Scott and I are honored that our peers have the confidence...
