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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...

What is an injury by accident post Dugger ?

Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. The Virginia Workers’ Compensation Act and the cases interpreting the Act were turned upside down by the Court of Appeals in Riverside Regional Jail Authority v. Dugger, 68 Va. App. 323 (2017). In Dugger, the Court of Appeals held that the claimant, a corrections officer,  sustained an injury by accident when she participated in simulated fights for four hours.  During that training session she was tossed around and taken down.  As she was walking away from the training, she immediately noticed pain in her knee. In finding that the claimant suffered a compensable injury by accident, the Court  found that the claimant was not engaged in repetitive movements during this training. Instead, the Court found that the claimant’s injury occurred during the four hour defensive training class, which was sufficiently bounded by rigid temporal precision to be considered an injury by accident. This opinion, of course, appeared to eviscerate the requirement that the claimant prove an injury by accident, that is, “an identifiable incident or sudden precipitating event.” However, in one of the first post Dugger opinions the Full Commission, in a 2-1 decision, reversed the deputy commissioner and appeared to reign in the effects of Dugger in Daggett v. Old Dominion University, JCN va00001318459 (March 8, 2018). In Daggett, the claimant, a technical support provider, testified that he suffered bilateral shoulder injuries when he was moving fourteen separate  4 foot by 8 foot smart boards to collect information from them.  The boards weighed between 28-48 lbs. He had to rotate the boards.  In the process, his arms and...

Property Damage Claim: To Be Arbitrated or Not?

Written by Delia DeBlass, Esq. Edited by Bill Pfund, Esq. Property damage claims can be made by filing a separate Warrant in Debt or by including the claim in the same action for personal injury. There is also a VA Code Section that states that “insurers shall arbitrate and settle all disputed claims made for automobile physical damage between them in accordance with the terms of the Nationwide Intercompany Arbitration Agreement.” (See Va. Code §38.2-2231(A)). This Code Section, however, has been deemed unconstitutional by a number of Circuit court decisions in Virginia. In 1999, the Circuit Court of Danville, Virginia first ruled on this issue. In Bass v. Young, the Court noted that it had “serious concerns about the constitutionality of Va. Code §38.2-2231” as it did away with the right to a jury trial and provided no appeal or judicial review of an arbitrator’s decision. (See Bass v. Young, 49 Va. Cir. 525 (1996)). The Circuit Court in Rockbridge County also agreed that this Code Section is unconstitutional. (See Virginia Mut. Ins. Co. v. Dean, 49 Va. Cir. 132 (1999)). In Virginia Mutual Insurance Company v. Dean, the Plaintiff insurance carrier, acting as subrogee of the insured, filed a property damage claim against the operator of another insured automobile. The Defendant filed a plea in bar, asserting that pursuant to §38.2-2231, arbitration was the exclusive remedy. The Court denied the Defendant’s plea in bar and set the matter for trial, finding that the remedy provided by the Legislature was to be “in addition to and not in lieu of the ancient common law right of trial by jury.”...

Don’t Give Short Shrift to Written Agreements at the Close of Mediation

Written by Danny Royce, Esq. A critical tool in our case resolution arsenal is mediation.  Many carriers and claimants turn toward mediation to resolve contentious litigation.  As we all know, mediation sessions can be slow and arduous often taking the better part of a day (and sometimes longer).  More often than not, mediation sessions accelerate toward compromise toward the end of a long session.  Such compromise frequently coincides with the highest points of stress and fatigue among litigants and lawyers.  One potential consequence of this confluence of factors is a hastily written or incomplete settlement agreement.  This presents a pitfall easily avoided by the savvy and conscientious lawyer.  The Supreme Court of Virginia recently ruled on this very issue in the case of LongView Int’l Technology Solutions Inc. v. Lin (2017 Va. Unpub. LEXIS 9 *, VLW 017-6-030(UP)).  Longview presents as a cautionary tale for litigants and lawyers trying to finalize mediated settlement agreements. In LongView, the parties participated in a 12 hour mediation session with an experienced mediator.   Upon reaching an agreement, the lawyers drafted a six-paragraph “Term Sheet” which stated the defendant tech company would pay the plaintiff investor (and former officer) $3 million over a four-year period, and another $12 million when the company was sold.  The Term Sheet included language at the top of the document that the parties were “intending to be fully bound by its terms.”  The parties signed the Term Sheet and sought to remove the trial from the docket.  The judge managing the docket heard a request for a continuance of the case and pressed the parties on whether they had...