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Short Term Vacation Rentals—Duty of Care Determined by Exclusivity

Written by Helen Jhun, Esq. Edited by Bill Pfund, Esq. As more individuals look to alternatives to traditional hotels when planning vacations and short term trips, the Virginia Supreme Court recently set forth what standard of care the owner of a short term rental property owner owed to its renter. In the recent Virginia Supreme Court case of Haynes-Garrett v. Dunn, the Court addressed the issue of whether the owner of a short term vacation rental owed the duties of a landlord or the duties of an innkeeper. 2018 Va. LEXIS 131, 818 S.E.2d 798, 2018 WL 4783257 (October 4, 2018). Under Virginia common law, a landlord has “no duty to maintain in a safe condition any part of the leased premises that [is] under [a tenant’s] exclusive control.” Isbell v. Commercial Inv. Assocs., 273 Va. 605, 611, 644 S.E.2d 72 (2007). Absent fraud or concealment, the tenant takes the premises in whatever condition they may be in, and assumes all risk of personal injury from defects therein. There is an elevated duty of care imposed an innkeeper. An “innkeeper” is defined as “[a] person who, for compensation, keeps open a public house for the lodging and entertainment of travelers.” Black’s Law Dictionary at 792 (7th ed. 1999). These are generally accepted to mean owners who run hotels, motels, and resorts. Unlike a landlord, an  innkeeper owes a duty “to take every reasonable precaution to protect the person and property of their guests and boarders.” Crosswhite v. Shelby Operating Corp., 182 Va. 713, 716, 30 S.E.2d 673 (1944). The duties owed by an innkeeper are significantly greater than those...

DTI Technology: The smoking gun for brain injury claims?

Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. The long term effects of brain injuries have been increasingly studied in recent years and the corresponding rise in public awareness has changed the focus of many plaintiff’s cases.  While headaches and memory loss were previously viewed as difficult injuries to ask a jury to quantify when compared to broken bones, those symptoms now form the basis of a claim for a traumatic brain injury.  But plaintiff’s attorneys making these claims often lack objective proof from a traditional CT scan of the plaintiff’s brain to support the subjective testimony put forth to prove a brain injury. Diffuse Tensor Imaging (DTI) has been increasingly favored by plaintiff’s attorneys and championed as cutting edge technology that is more sensitive and can provide objective evidence of a brain injury when old methods failed to show any abnormality.  Are these claims accurate and have plaintiffs found the evidence needed to bridge the gap between unreliable personal testimony and indisputable scientific findings?  Understanding the current state of DTI technology and the limits of the science are key in evaluating its admissibility and weight at trial in a brain injury case. DTI is an MRI based imaging technique that uses water diffusion to measure the brain’s white matter tracts.  To strip the technology down to its most basic explanation, when water is dropped on a smooth, uniform surface, it diffuses in a uniform manner.  When water is dropped on an uneven surface, it diffuses in an uneven manner.  Our brains are not a smooth, uniform surface so when water molecules are dispersed throughout the brain,...

Permanent Partial Disability (“PPD”) Ratings: It’s more than just a number

Written by Jessica Gorman, Esq Edited by Rachel Riordan, Esq. Virginia Code section § 65.2-503 outlines the requirements for an injured worker to obtain benefits for any permanent impairment sustained as a result of a work accident and lists those scheduled body parts for which benefits may be awarded.  However, under certain circumstances, injured workers have been able to obtain permanent partial disability benefits (“ppd”) even if the direct injury from the accident is not on the schedule listed. Burden of Proof: In order to obtain benefits under Code § 65.2-503 for the loss of use of a particular body member, an injured worker must establish that (1) he has achieved maximum medical improvement and (2) that his functional loss of capacity be quantified or rated. Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d 489, 492 (1993) (citing Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 678-79, 401 S.E.2d 213, 215 (1991)). The Commission, in determining permanent partial disability benefits, “must rate ‘the percentage of incapacity suffered by the employee’ based on the evidence presented” to it. Hobson, 11 Va. App. at 677, 401 S.E.2d at 214-15 (citing Cty. of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)). “In order to recover, [the injured worker has] the burden of establishing by a preponderance of the evidence the existence of a disability which was the consequence of the injury by accident.” Id. at 678, 401 S.E.2d at 215. When the evidence is analyzed, actual functional loss of use must be demonstrated. Gaskins v. Arlington Cnty., JCN VA00000034125 (Nov. 15, 2011) (citing...

The Spoils of Video Evidence

by Rachel L. Stewart, Esq. Edited by Brian A. Cafritz, Esq. There is possibly no clearer evidence of how an accident happened than that of video.  While many retail and restaurants utilize video to deter theft or other possible criminal activity in their establishments, the retention of store video footage is often the source of many fights in litigation.  Plaintiff’s counsel often attempt to use an establishment’s surveillance video in support of their case, and if it is not preserved, argue that the failure to preserve such evidence justifies spoliation instructions to the jury.  Below we discuss how to protect yourselves from such claims and how our knowledge and experience with such issues and applicable law can help you. If your establishment utilizes video surveillance cameras, it is important to establish a procedure for securing such video if an incident occurs in your store or restaurant.  While a camera may not have actually been located in the vicinity of the area where an incident occurred, plaintiff’s often believe there was a camera due to observation of fake or dummy cameras and will later make a claim that the retailer or restaurant failed to preserve such evidence.  Accordingly, when an incident occurs, if no camera actually captured the incident, a record should be made that video surveillance of the incident was not captured, and if a fake or dummy camera is located near the incident, it should also be noted to avoid potential claims of destruction or failure to preserve.  This is especially helpful if the plaintiff does not file a lawsuit for several years given the applicable statute of...

Exotic Pet Liability: Virginia’s Unique Approach

Written by Andy Webb Edited by Gary Reinhardt, Esq. Conventional legal wisdom holds that an owner of a wild animal is strictly liable for injuries caused by that animal.  Stated another way, “A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, his land or chattels, although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm.”  Section 507 of the Restatement (Second) of Torts.  This rule stems from the idea that, despite taking reasonable and proper precautions, the owner of a wild animal is “exposing the community to the risk of a very dangerous thing” by owning the wild animal and by “engaging in an activity that subjects those in the vicinity, including those who come onto his property to an abnormal risk . . . [t]he possessor of a wild animal is strictly liable for physical harm done to the person of another.”  W. Prosser & W. Keeton, Torts (5th ed. 1984). Despite this “[v]enerable common law principle[],” a decades-old Virginia Supreme Court case instructs Virginia courts to take a more nuanced and case-by-case analysis when examining liability stemming from the ownership of a wild animal.  The Court examined the issue of keeping wild animals, and injuries caused therefrom, in Panorama Resort v. Nichols.  165 Va. 289, 182 S.E. 235 (1935).  Panorama Resort was a hotel and resort on Skyline Drive in Page County, Virginia.  The resort kept three bears caged on its property and “encouraged [the resort’s] guests and the general public to feed soft...

Shopper’s suit against Retailer for off duty police officers’ conduct is allowed to proceed

Written by Brian A. Cafritz Security in a retail establishment is a double-edged sword.  Stores have to balance the best way to protect its customers and property from wrongdoers, but at the same time, not be too aggressive in executing that plan.  One common means of offering security is to hire off-duty police officers.  Frequently, off duty police officers will wear their state issued uniforms, badges, and firearms while working at the stores.  Their “official” presence in the store sometimes blurs the line of whether their conduct is imputed to the store.  In the recent case of Chris Blevins v. Cabela’s Wholesale, Inc., (Case No. 1:18CV00002), Judge James Jones of the Western District of Virginia examined the potential liability the store may face for the conduct of the off-duty officers. In Blevins, a customer shopping in a Cabela’s store was suspected of shoplifting by two security guards.  Both guards were off-duty Bristol, Virginia police officers who wore their uniforms, badges and firearms while patrolling the store.  There was no-off duty employment agreement between Cabela’s and the City of Bristol. Plaintiff alleged in his Complaint that while working at Cabela’s, the officers were subject to Cabela’s instruction, management and control, and they were to follow Cabela’s orders as to whether or not to detain suspected shoplifters or ban them from the store. As Blevins shopped in the store, the guards began following him.  The guards notified Cabela’s plain-clothed asset protection employee that they believed Blevins had concealed ammunition.  As Blevins walked outside the store, the officers grabbed him, advised him that he was under arrest for shoplifting, and instructed him...

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...