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Court Ices Plaintiff’s Claim that Hotel was Negligent for Running a Fountain in Freezing Temps

Written by Brian Cafritz, Esq.  and Chris Bergin, Esq. In terms of sheer volume, the most relentless legal threat facing restaurant and retail owners is the deluge of slip and fall claims.  Fortunately for Virginia-based businesses, the premises liability law within the Commonwealth tends to be defense-friendly. For a Plaintiff to establish a claim of premises liability against a restaurant or retail owner, he must prove that he was harmed by a known danger on the property.  Typically, this boils down to two issues:  Did a dangerous condition exist on the premises? And did the Defendant have notice of that danger prior to the Plaintiff’s accident? The second issue—whether a business had notice of a dangerous condition— is the most litigated.  There are three ways a Plaintiff can establish notice: (1) by proving that the Defendant had actual notice of a dangerous condition; (2) by proving that the Defendant had constructive notice of a dangerous condition; or (3) by proving that the Defendant created the dangerous condition by its own affirmative conduct.  Each method of establishing notice comes with its own legal standard, which the Plaintiff must meet. Most of the case law in Virginia focuses on the legal standards for establishing actual and constructive notice, which are both typically rigid and defense-friendly standards.  Plaintiff’s, however, often try an end around the notice hurdle by arguing a concept known as The Genesis Doctrine.  Under this theory, the Defendant is charged with notice for any reasonably foreseeable dangers created by its conduct.  In other words, because the Defendant is the “Genesis of the condition,” notice is presumed if the danger...

Service of Process Upon an Uninsured or Underinsured Motorist Carrier Pursuant to Virginia Code § 38.2-2206(F)

Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. Virginia Code Section 38.2-2206(F) provides, in part: If any action is instituted against the owner or operator of an uninsured or underinsured motor vehicle by any insured intending to rely on the uninsured or underinsured coverage provision or endorsement of this policy under which the insured is making a claim, then the insured shall serve a copy of the process upon this insurer in the manner prescribed by law, as though the insurer were a party defendant.   A circuit court in Virginia recently examined the service provisions of this statute and overruled an underinsured motorist carrier’s plea in bar in which the carrier requested dismissal on the basis that it was not served within one year of the filing of the complaint. Jones v. Goldsborough, 2016 Va. Cir. LEXIS 189. In Goldsborough, an accident occurred on April 11, 2013. The plaintiff filed suit on March 8, 2015. The defendant was served on December 29, 2015, within the one year limitation prescribed by Va. Code § 8.01-275.1.  The underinsured motorist carrier was served on March 23, 2016, after the one year anniversary of the filing date.   In overruling the insurer’s plea in bar, the court reiterated that the service of process rules under Va. Code § 8.01-275.1 and Rule 3:5(e) of the Rules of the Supreme Court of Virginia do not apply to uninsured or underinsured motorist carriers.  Those provisions apply only to named defendants. They require service of process upon a defendant within twelve months of commencement of an action. The court reasoned that service of...

Summer Suits? Defending Claims Involving Children & Summer Activities

Written by Helen Jhun, Esq. Edited by Bill Pfund, Esq. As the weather warms, schools across Virginia recess for summer. Families throughout the state look forward to a few months of rest, relaxation, and recreation. Along with the fun that comes with recreational activities, there are also specific risks when participating in these activities, especially when children are involved. This article will address some of specific issues that arise in defending these types of claims. Contributory Negligence and Assumption of Risk for Minors Under Virginia law, the defenses of contributory negligence and assumption of risk are complete bars to recovery. However, the considerations differ when the plaintiff is a child. A child under seven years of age is incapable of being contributorily negligent. Atlantic C.L.C. Co. v. Clements , 184 Va. 656, 664-665, 36 S.E. 553, 557 (1946). A child between 7 and 14 is presumed to be incapable of negligence. However, this is a rebuttable presumption, and such a child can be contributorily negligent upon evidence that 1) the child had the capacity to understand the nature and perils associated with his conduct based upon his age, intelligence and experience and that 2) the child’s conduct did not conform to the standard of a reasonable person of the same age, intelligence and experience.  Va. Elec. & Power Co. v. Dungee 258 Va. 235, 520 S.E.,2d 164 (1999). A child between the ages of fourteen and eighteen is held to the degree of care which persons of the same age, experience, intelligence, discretion and knowledge would exercise under the circumstances. Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189...

When Do Animal Encounters in the Workplace “Arise Out Of” Employment?

Written by Rachel Riordan, Esq. Edited by Claire Carr, Esq. Animal attack cases are not uncommon events and animal bites often raise interesting compensability questions in workers’ compensation cases.  According to the Humane Society of the United States, there are approximately 78.2 million owned dogs in the country and about 40 percent of all households have at least one dog or cat.  The United States Department of Agriculture estimates there are over 4,000 bee species in the country and bee allergies are becoming more prevalent.  The animal encounter cases from the Virginia Workers’ Compensation Commission include horses, snakes, spiders, ticks, and even a compensable cat attack! When evaluating animal bite cases, it is important to remember that Virginia is an “actual risk” state and not a “positional risk” state.  In other words, the mere happening of an accident in the workplace is not compensable unless certain criteria are met.  Most significantly, the accident must “arise out of” the employment.  There must be a causal connection between the conditions under which the work is required to be performed and the resulting injury. With respect to animal bites, the Virginia Workers’ Compensation Act requires that the injury be fairly traced to the circumstances or environment of the claimant’s employment.  Milton v. Gibson Lumber Co., VWC File No. 224-32-58 (Sept. 22, 2006).  The employment must expose the claimant to a greater risk than the general public.  For example, benefits were awarded in Fuller v. Randolph M. Bailey t/a Wet Pets, 67 O.I.C. 35 (1988), where the employee was working in a pet store and was bitten by a spider, and in Phelps...
Welcome the Newest Members of Our Team!

Welcome the Newest Members of Our Team!

Pictured Above from left to right… Lee Appleton, Nick Marrone, Joe Smith and Andy Webb. KPM is thrilled to welcome four new attorneys who bring to KPM a wealth of energy and experience.  Joe Smith joins the Worker’s Compensation Practice Group in Richmond, while Nick Marrone joins the group in Fairfax serving both Virginia and Maryland.  Lee Appleton has joined our General Liability team, and Andy Webb has joined KPM’s Coverage & Fraud division.  Please join us in welcoming these great additions to the KPM family....
Super Lawyers Recognizes Four KPM Attorneys!

Super Lawyers Recognizes Four KPM Attorneys!

We are delighted to announce that Brian Cafritz, managing partner of KPM’s Retail & Restaurant Litigation Group and Claire Carr, managing partner of KPM’s Workers’ Compensation Practice Group have been selected to the 2017 Virginia Super Lawyers list. Additionally, Rachel Riordan, a partner with KPM, and Andrew Willis, an associate, have both been named to the 2017 list of Virginia Rising Stars!  Super Lawyers recognizes no more than five percent of attorneys in the state.  Please join us in congratulating our colleagues on this fine...

A Primer on Step Cases

Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. One of the most common workers’ compensation fact patterns is an employee sustaining any injury in a stairwell or on steps.  A recent decision from the Full Commission acts as a primer on adjusting some of the most common step cases in Virginia.  The Deputy Commissioner and the Full Commission in Vickers v. E & M Management, LLC, JCN VA00001141682 (March 17, 2017) provide us with some useful practice pointers. In Vickers, the claimant worked as a maintenance supervisor for his employer, and while visiting an apartment complex to perform an inspection, fell as he was descending some stairs.  He described the stairway as having risers which were short and a tread which was narrow with a 1½ inch lip that “interfered with descending the steps.”  He claimed to have almost fallen down the steps on two previous occasions because they were so narrow.  The claimant testified that even with his heel backed all the way against the riser, his foot still hung over the step so that he had to turn his foot a little to the side in order to place his foot on the steps to descend them. On the day of the accident, the claimant had descended three steps when the heel of his right foot hit the front toe of his left foot, causing him to spin around and fall down the remaining twenty steps to the bottom.  He testified in his deposition that his left foot had been sticking out over the edge of the step because his feet were so long, but...

Out of the Fire and into the Frying Pan: ED VA Applies the Fireman’s Rule to Product Liability Claims

Author by Chris Bergin, Esq. Edited by Brian A. Cafritz, Esq. A common risk for retails is that one of its products is defective and causes an accident.  For example, if a consumer buys a product from a retailer and the product causes a fire, the retailer is sued for personal injuries or property damage due to the breach of the UCC Implied Warranties.   Taking this scenario one step further, could a firefighter or emergency responder who is injured by the fire or product recover against the retailer as well? Since at least 1968, the Commonwealth of Virginia has recognized and followed a common law doctrine called the “Fireman’s Rule.” The Fireman’s Rule holds that police officers, firefighters, and other public officials who are engaged in a high-risk activities as a result of their public duties, are not permitted to recover for a defendant’s simple negligence. Thus, for example, if a store or a restaurant negligently causes a fire on its property, it cannot be held civilly liable for any injury or death caused to firefighters who responded to the scene. At first blush, the Fireman’s Rule seems counterintuitive, or even cruel. However, it rests upon the sound legal doctrine of assumption of risk, which is strongly adhered to in Virginia. When a firefighter, for example, responds to an alarm, she is necessarily aware that a fire is in progress and that fire-related hazards are likely to exist. Yet her duty to respond to the fire still exists, in spite of this known danger.  The firefighter is duty-bound to respond to the emergency, regardless of whether the emergency was...

The Plaintiff Rear-Ended Me – How Can I Be At Fault?

Written by Sarah Kathryn Stahling, Esq. Edited by Bill Pfund, Esq.            Although plaintiff’s attorneys continue to grow ever more creative with their pleadings and allegations of negligence, it seems obvious that if Driver A rear ends Driver B, it’s not Driver B’s fault.  After all, he was the lead car.  How was he supposed to avoid an accident with a car behind him?  Couldn’t we go so far as to say, at the very least, Driver A was contributorily negligent per se and barred from recovery? Unfortunately, it’s never that simple.  This will almost always be a jury issue.  The Virginia Supreme Court recently addressed this issue in 2002 in Hot Shot Express v. Brooks, 264 Va. 126.  In this case, the driver of a tractor trailer was traveling from Pennsylvania to Virginia.  When he got to rural Virginia, he realized he had missed his delivery site and, in light of no shoulder to pull onto, stopped his vehicle in the middle of his travel lane and activated his hazard lights.  When he started to pull forward again, he felt an impact at the rear of his trailer – the Plaintiff had apparently wedged her vehicle under the rear of the trailer. At the conclusion of the Plaintiff’s personal injury case, Hot Shot Express moved to strike her evidence on the ground that the Plaintiff was contributorily negligent.  After all, she had plainly failed to keep a proper lookout and run into the back of a tractor trailer with flashing hazards.  The court denied the motion and explained that the issue of the Plaintiff’s negligence should be submitted...

Supreme Court of Virginia – Policy Language Trumps Indemnification Clause

Written by Lauren Gibbons, Esq. Edited by Bill Pfund, Esq. The issue of priority of coverage arises on a daily basis for attorneys and claims examiners alike in the world of insurance defense, and are often a source of headache and confusion. In the recent case of Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exch., the Supreme Court of Virginia shed some light on how to properly determine the priority of applicable insurance coverage. 2017 Va. LEXIS 52 (Va. Apr. 13, 2017). In Nationwide, the Supreme Court determined the priority of applicable insurance policies involved in an underlying civil suit arising out of a fatal car accident. Two companies, East Coast and Rodriguez Construction, entered into a subcontract for construction services. East Coast loaned a work truck to Rodriguez under this contract. One of Rodriguez’s employees was operating that vehicle in the course of his employment when he struck another vehicle. The driver of the other vehicle died as a result of the accident and his Estate filed a wrongful death suit against the driver and East Coast. East Coast was eventually nonsuited from the matter, leaving only a potential judgment against Rodriguez’s employee. The issue before the Supreme Court was priority of coverage for the employee. At the time of the accident, East Coast was insured under two Erie policies – (1) Erie Auto Policy and (2) an Erie Umbrella Policy. Rodriguez, on the other hand, was insured by Nationwide and had the following policies – (1) Nationwide Auto Policy (2) Nationwide CGL Policy, and (3) Nationwide Umbrella Policy. The subcontract between East Coast and Rodriguez required...