Written by Randy Lenhart, Esq.
Edited by Bill Pfund, Esq.
A company may create private polices, procedures and safety rules for use by its employees for a number of reasons, including but not limited to, establishing a culture of workplace safety, preventing accidents and reducing the number of lawsuits. When these private rules are created companies expect that they will be followed by their employees and remain confidential. But what happens after a lawsuit has been filed and the opposing party obtains copies of the private rules in discovery. Can they be used against you in a Court of law to set the standard of care in meeting your duty to others?
In Virginia, a company’s private rules cannot be used against it to set the standard of its duty to others. This principle was first articulated in 1915 in the case of Virginia Ry. & Power Co. v. Godsey, 117 Va. 167 (1915). In Godsey, a plaintiff was injured when she fell off of a moving street car. She brought a personal injury action against the street car company and used the defendant’s private rules against it at trial arguing that its rules were an admission that reasonable care in her case required the exercise of all of the precautions identified in the rules. On appeal, the Supreme Court of Virginia reversed the judgment and ordered a new trial in which the defendant’s private rules were excluded from evidence. In doing so, it held that “a person cannot, by the adoption of private rules, fix the standard of his duty to others. That is fixed by law, either statutory or common. Private rules may require of employees less or more than is required by law; and whether a given course of conduct is negligent, or the exercise of reasonable care, must be determined by the standard fixed by law, without regard to any private rules of the party. The company cannot introduce its rules to show that it has conformed thereto as a proof of its freedom from negligence, and it would be a harsh measure of justice to hold that a plaintiff should be permitted to exact of the company the standard of duty required by such rules.” The Court also noted that companies should be encouraged to adopt safety rules for its employees and if a company’s private rules could be used against it at trial, then companies would not adopt private rules at all. The Court also likened the adoption of private rules to that of subsequent remedial measures taken after an accident had occurred, which are also generally excluded from trial.
In 1983, the Supreme Court of Virginia reaffirmed the principle that private rules are inadmissible in personal injury cases in Pullen v. Nickens, 226 Va. 342 (1983). In doing so, the Court held that the “rationale of Godsey is sound, and we reaffirm our holding in that case that private rules are inadmissible in evidence either for or against a litigant who is not a party to such rules.” The rule excluding the private rules of defendants in personal injury cases is still the rule in Virginia. Likewise, for diversity cases in federal court which are bound by Virginia substantive law, the 4th Circuit Court of Appeals had determined that Virginia’s exclusionary rule on private rules is controlling. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir. 1995).
However, like with most things, the devil is in the details. The exclusionary rule concerning a company’s private rules applies to a company’s private rules and may not apply if the polices and procedures are promulgated from an outside source. In Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) the Supreme Court of Virginia allowed a plaintiff to use staff orientation instructions and training materials at trial that were used by the defendant but created by a non-party. The exclusionary rule may also not apply if the opposing party has an expert witness who uses the materials as part of the basis of their opinion on the standard of case. Finally, similar to subsequent remedial measures which may be admissible at trial to show proof of ownership or control but not to prove negligence, the private rules of a party may be admissible if used for a reason other than setting the standard of care. See Hawthorne v. Lavinder, 72 Va. Cir. 375 (Roanoke Cir. Ct. 2006)(use of training materials may be used in a case of gross negligence to show that the defendant departed from his training and acted with “indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety’ of others.”)
If you have questions regarding the status of the law and its impact, please call KPM LAW for an attorney to discuss these and other issues.