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Keeping the Peace

Written by Rachel Stewart, Esq. Edited by Brian Cafritz, Esq. While restaurants and retailers want customers to patronize their stores, unfortunately, there are times when a particular customer threatens an employee or causes concern for the potential of harm to an employee or other customers.  With so much information on social media and in the news regarding videos of employee-customer interactions in restaurants and retail stores, what can or should an employee of a restaurant or retail store do when confronted with a dangerous or potentially dangerous customer? First and foremost, depending on the circumstances, the customer should be asked to leave the store immediately.  Once the customer is invited to leave and given a reasonable amount of time to comply, his failure to do so will change his status from invitee to trespasser.  As a trespasser, the duties owed to him under the law change.  Under Maryland law, a property owner is only required to refrain from willful or wanton conduct that may injure the trespasser. If a customer is brandishing a weapon of any sort or a fear of imminent or serious injury exists as a result of the customer’s actions, in order to protect your employees and customers, the police should be contacted immediately.  As we’ve discussed in a prior article, if the customer were to use the weapon and injure or kill a customer, the court may consider the timing of an employee’s actions on the risk of harm in determining liability once aware of the possibility of imminent danger. Employees should not be afraid to contact the police if a customer refuses to comply...

Take the $20 Challenge!

This past month, firm president, John Messersmith, gave all KPM attorneys and staff a crisp $20 bill and a challenge: Spend the money however you wish – but spend it on someone other than yourself – and then tell us what you did.  What resulted was a waterfall of good deeds and warm feelings that made the world just a little bit better. About a third of the money was donated to about a dozen different charities, churches or other community organizations.  Others followed their love of animals by helping shelters, SPCA and other animal care groups while another significant percentage helped their local schools or scouting organizations. Among some of the more heartwarming stories, a large group pooled their money in order to fund school lunches for children who otherwise would go hungry during the course of a school day.  Many matched or otherwise contributed additional funds for this cause and as a result, two local schools essentially had their lunch programs funded until the end of the school year.  Countless children had their days immeasurably improved. Given the impact of nutrition on learning, we may never know just how much impact this seemingly small thing had on some of those children. About 20% did all manner of acts of “pay it forward” from buying food or drinks for people behind them to covering medical co-pays for seniors at the drug store. Speaking of seniors, one individual bought and potted a few small plants to bring to residents in a local seniors’ home.  The real gift was in the time spent visiting with each of the recipients. Another...

A Closer Look: Medical Causation through Request for Admissions

In almost every circuit court case involving a bodily injury claim, at some point plaintiff’s counsel sends a set of basic Requests for Admissions regarding medical bills and records. The request always seeks the admission of three (3) basic things as to the plaintiff’s bills and records: 1) admit the bills and records are authentic; 2) admit the bills and records are reasonable in cost and scope; and 3) admit the bills and records are causally related to the accident alleged in the lawsuit. In most cases items 1) and 2) can, or must, be admitted without issue. This essay is concerned solely with item 3) or causal relation. As far back as can be remembered the answer to the “causal relation” request for admission is to deny, on the grounds that it requires an expert opinion and modern discovery rules and physician-patient privilege prevent defense counsel from simply calling the physician on the phone to discuss whether a particular bill or record is causally related to the subject accident (not that many physicians would take the call anyway). Conversely, it seems counter-intuitive that defense counsel could be forced to take a deposition of plaintiff’s treating physician in order to get to the bottom of causation. For the most part plaintiffs’ counsels have allowed the denial to stand without objection but lately there has been a movement to challenge the denial. What have the Courts said about this issue? First, Rule 4:11 of the Rules of the Supreme Court of Virginia provides in part: The answer [to a request for admission] shall specifically deny the matter or set forth...

Willful, Wanton, Gross, and Simple Negligence: Is there a difference? Does it even matter?

Written by Randall C. Lenhart, Jr., Esq. Edited by Willian J. Pfund, Esq. Two individuals walk into a bar.  You would have thought at least one of them would have ducked.  Nevertheless, they both filed separate actions against the owner of the premises asserting negligence claims for creating a hazardous condition and failing to warn of the dangerous condition.  In one of the cases the plaintiff asserted that the owner’s negligent conduct was grossly negligent and willful and wanton while the other plaintiff asserted that the owner acted with simple negligence.  Does it matter?  It could because Virginia law recognizes different types of negligence and the type of negligence claim asserted can affect the damages awarded to a plaintiff, the claims a plaintiff may assert and the defenses that are available to a defendant. The three types of negligence are (1) ordinary or simple negligence, (2) gross negligence, and (3) willful and wanton negligence.  Virginia also recognizes negligence per se claims. Ordinary or simple negligence is a failure to use that degree of care which an ordinarily prudent person would exercise under the circumstances to avoid injury to another.  Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957).  Gross negligence is an utter disregard of prudence amounting to complete neglect of the safety of another.  It must be such a degree of negligence as would shock fair minded men although something less than willful recklessness.  Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis omitted). Willful and wanton negligence on the other hand is acting consciously in disregard of another person’s rights...

The “Two Year” Statute of Limitations & Interpretation of Body Parts Awarded

Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. In Virginia, an employee has two years to file a claim for body parts and to identify those injuries asserted from the work accident. But what happens after the statute of limitations has run? Can an injured worker get around the two-year statute to allow for additional injuries without having the statute of limitations tolled? If the complaints and body parts are closely related, it is certainly a possibility. In the discussion below, we address a case in which an employee injured her shoulder only to be awarded a cervical injury after the two-year statute had passed.  Below you will see the reasoning for how the injured worker was able to get around this two-year statutory requirement and recommendations for how to handle your case to keep this from happening. An employee must assert against the employer “any claim that he might have for any injury growing out of the accident,” within the two-year statute of limitations period found in Code § 65.2- 601. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975). If an employee suffers multiple injuries during the same accident, the employee must assert a claim for each injury, within the statute of limitations period. (Id.) The limitation found in Code § 65.2-601 is jurisdictional. Barksdale v. H.O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977); Shawley, 216 Va. at 445, 219 S.E.2d at 852. “Statutory construction may not be used to extend the rights created by the Act beyond the limitations and purposes set out therein.” Garcia...

Limiting the Reach of Uninsured Motorist Coverage—Look to the Declarations

Written by Helen Jhun, Esq. Edited by Bill Pfund, Esq. In motor vehicle accidents involving very serious injuries where the wrongdoing party has no liability coverage or limited liability coverage, injured parties must seek uninsured and underinsured coverage from any other policy which may be available, wherever they can. There are various ways an injured party can be considered an “insured” under these UM/UIM policy. The Virginia Court of Appeals very recently decided on a case which limits just how far the Court would be willing to extend the coverage. In Virginia, uninsured motorist coverage is meant to protect an insured motorist, his family and permissive users of his vehicle against the peril of injury by an uninsured wrongdoer, not to provide insurance coverage upon each and every uninsured vehicle to everyone. Bayer v. Travelers Indem. Co., 221 Va. 5, 267 S.E.2d 91, 91 (Va. 1980). In the recently decided case of Levine v. EmpIrs Ins. Co.,  the United States Court of Appeals for the Fourth Circuit looked to this definition of  UIM coverage and limited coverage under a Third Party’s UIM policy to the vehicles strictly identified in the policy’s Declarations Pages, refusing to extend coverage to include the broader definition found under Virginia’s required UIM statutory endorsement. 218 U.S. App. LEXIS 9146 (April 12, 2018). Specifically, the Court addressed the question as to how to interpret the policy where Virginia’s required UIM endorsement has a definition of “covered auto” that is broader than the UIM limitation of the Declarations Pages. Background Facts Purnell Furniture Services was a Virginia furniture company who hired Carlos Bolanos Castillo and Marco...

The Balancing Act of Compelling Private Facebook Material

Written by Andy Webb, Esq. Edited by Gary Reinhardt, Esq. According to Facebook, more than 350 million photos are uploaded and 55 million status updates are posted to its site every day.  Often, these photos and status updates, along with other information voluntarily posted on Facebook, are significant tools in defending against a plaintiff’s claims.  However, due to Facebook’s privacy settings, a party’s Facebook posts are sometimes limited or completely obscured from public view.  When this is the case, an attorney must use the discovery process in an attempt to obtain this possibly valuable Facebook information. In the context of litigation, discovery devices such as interrogatories and requests for production can be used to obtain a party’s Facebook information, but these tools place limits on the content and amount of information available.  Generally, discovery is limited to material “relevant to the subject matter” of the litigation, if that information “appears reasonably calculated to lead to the discovery of admissible evidence.”  Rule 4:1(b)(1) Rules of the Supreme Court of Virginia.  This general standard places a burden on the party seeking the production of Facebook information.  The party must show a factual predicate between the Facebook information and the issues of the case. Virginia courts applying this factual predicate standard in the Facebook context have looked at the facts of each case independently to determine if a request for Facebook information is relevant.  For example, the Greensville County Circuit Court found a defendant established the necessary factual predicate by showing that drinking and partying depicted in plaintiff’s Facebook pictures could be relevant in evaluating the true extent of plaintiff’s alleged long-term...

Chicken Grease Lightning! District Court holds that seeing a customer chowing down on chicken is not sufficient for constructive notice of grease puddle

Written By Chris Bergin, Esq. Edited by Brian A. Cafritz, Esq. Virginia business owners are not legally responsible for every single accident that occurs on their premises. Indeed, the Virginia Supreme Court has been clear: “A proprietor of a store is not an insurer of the safety of his customers.” Safeway Stores, Inc. v. Tolson, 203 Va. 13, 16 (1961). For a Plaintiff to establish a claim of premises liability against a business owner, he must prove two factual elements: that a hazardous condition existed on the premises, and that the defendant had notice of the hazardous condition. The second issue—whether a business had notice of a dangerous condition—is more heavily litigated. There are three ways a Plaintiff can establish notice: (1) by proving that the defendant created the dangerous condition through its own affirmative conduct , (2) by proving that the defendant had actual notice of a dangerous condition and (3) by proving that the defendant should have known about the dangerous condition. Each method of establishing notice has its own specific legal standard that the Plaintiff must meet. Most of the time, Plaintiffs are unable to prove that a storeowner either created a hazard or had actual knowledge of a hazard. Thus, the vast majority of litigation in Virginia focuses on whether a Plaintiff is able to prove constructive notice. Fortunately for business owners, the constructive notice rule is straightforward, defense-friendly, and ironclad. To establish constructive notice, a Plaintiff must provide evidence showing how long the specific hazard in question existed prior to his accident. Other evidence is irrelevant. If the Plaintiff cannot show how long the...

Can a parent claim medical expenses, even when the infant doesn’t have his own injury suit pending – and if so, what’s the statute of limitations?

Written by Sarah Kathryn Stahling, Esq. Edited by Bill Pfund, Esq. Two separate causes of action arise out of an injury to a child– one on behalf of the child for pain and suffering, injury, and loss of earning capacity in adulthood and one on behalf of the child’s parents for loss of services and earning capacity while the child is a minor and for medical expenses incurred for the child’s treatment.  Moses v. Akers, 203 Va. 130, 122 S.E.2d 864 (1961).  Since July 1, 2013, however, the claim for medical expenses now belongs to both the minor and the parents.  Va. Code § 8.01-36. You’re likely familiar with a child’s claim for personal injuries that includes the parents’ claim for medical expenses incurred on behalf of the child.  This type of action is stems from Va. Code § 8.01-36(A), which provides that [w]here there is a pending action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses . . . either in the action filed in behalf of the infant or in a separate action. Section 8.01-36(B) goes on to provide that where the cause of action accrues on or after July 1, 2013, the past and future expenses for medical treatment for the child are recoverable by the infant in a...

Employer Liability for Sexual Assault in the #MeToo Era

Written by Barry Montgomery, Esq. Edited by Bill Pfund, Esq. We all know that 2017 brought with it the powerful #MeToo movement raising the awareness of sexual assault—especially in the workplace. The international movement has found support among celebrities and politicians. The hashtag “#MeToo” has been posted on social media sites millions of times since October 2017. It follows that such a movement has influenced they manner in which most jurors perceive allegations of sexual assault in the workplace. However, it remains to be seen how #MeToo era juries will hold employers civilly liable for sexual assaults committed by their employees.  While traditional sexual harassment cases invariably end up in federal court, sexual assault victims may file tort cases in state court directly against the assaulter and his employer. This article will address common questions I receive from claims adjusters regarding claims of sexual assault made directly against an employer and the employer’s potential liability. Can Sexual Assault Be Committed Within the Scope of Employment? Yes. In Virginia, it is well that while the plaintiff has the burden of persuasion on the issue of whether the employee was acting within the scope of his employment at the time of the act complained of, simple proof of the employment relationship creates rebuttable presumption of the employer’s liability.”  Gina Chin & Assocs. v. First Union Bank, 260 Va. 533, 542  (2000). The court noted that when an employer-employee relationship has been established, then the burden is on the employer to prove that the employee was not acting within the scope of his employment when he committed the act complained of, and...