by KPMLAW | Mar 20, 2017 | KPMBlog, News, Uncategorized
Written by Kevin Kennedy, Esq. Edited By Janeen Koch, Esq. Plaintiffs injured on the job often look for an entity beyond their own employer who could be an additional source of recovery. While an employee’s action against his employer is widely known to be limited to a worker’s compensation claim, Virginia law has an established history that bars many claims against independent contractors or other third party defendants. Careful analysis of the status of the parties involved in a suit can raise this valuable defense and dramatically shift the posture of the case when a plaintiff is seeking double recovery. Virginia courts have consistently stated that the Worker’s Compensation Act was intended to be broadly construed. “It was the legislative intent to make the [Worker’s Compensation Act] exclusive in the industrial field so that, in the event of an industrial accident, the rights of all those engaged in the business would be governed solely thereby.” Feitig v. Chalkley, 185 Va. 96, 102, 38 S.E.2d 73 (1946). In other words, the Act was intended to give certainty to the parties of their rights and liabilities and courts will look with closer scrutiny at a plaintiff who was provided with worker’s compensation coverage and who is now seeking additional recovery. The “exclusivity provision” that is the basis for barring improper additional claims reads as follows: The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee,...
by KPMLAW | Mar 20, 2017 | KPMBlog, News, Uncategorized
Written by Kate Adams, Esq. Edited by Janeen B. Koch, Esq. Having a system in place to save electronic data for some period of time, and then have it automatically deleted may not be found sufficient to overcome the issue of spoliation of evidence. In Jenkins v. Woody, a 2017 U.S. District Court case, the issue of spoliation of video evidence was analyzed to determine whether a Sheriff took all proper steps to preserve a missing video that recorded the last hours of Ms. Jenkins’s detention prior to her death. The Plaintiff claimed that Sheriff Woody intentionally destroyed or failed to preserve the videotape footage. In the Jenkins case, the Plaintiff made a request under the Freedom of Information Act to obtain the video in question showing Ms. Jenkins in her cell prior to her death. The request was received on the 24th day after Ms. Jenkins’s death, and after the Internal Affairs Division (IAD) investigation had already begun. The recording equipment was set up to be saved on the server for 30 days, and after that it would be overwritten with new data. But, as the Sheriff explained, the issue was the cameras “were recording more than they were supposed to record because the motion sensitivity was set too high, and therefore the amount of expected data was taken up quicker than 30 days.” Therefore, when the FOIA request was made, the video had already been deleted and was unable to be recovered. The Court analyzed two issues: first, should Sheriff Woody reasonably have anticipated litigation regarding Ms. Jenkins’s death; and second, should Sheriff Woody reasonably have known...
by KPMLAW | Mar 20, 2017 | KPMBlog, News, Uncategorized, Updates
Written by Bill Pfund, Esq. Virginia has a series of “Equine Activity” statutes, § 3.2-6200-§ 3.2-6203 that say that a person shall not be liable for an injury to or death of another resulting from the intrinsic dangers of horse riding (“equine activities”), and that no participant shall have any claim against, or recover from, any other person for injury or death of the participant resulting from the intrinsic dangers of equine activities. Intrinsic dangers of equine activities is defined as those dangers or conditions that are an integral part of equine activities, including: (i) the propensity of horses to behave in ways that may result in injury, harm, or death to persons on or around them; (ii) the unpredictability of a horse’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (iii) certain hazards such as surface and subsurface conditions; (iv) collisions with other animals or objects; and (v) the potential of a participant acting in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the equine or not acting within the participant’s ability. The Virginia statute goes on to say that no participant, or the parent or guardian of a participant, who has knowingly executed a waiver of their rights to sue, or agrees to assume all risks specifically enumerated under the statute, may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. The waiver must give notice to...
by KPMLAW | Mar 19, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. Businesses often check a job applicant’s social media sites prior to making an offer of employment. Some companies encourage employees to post about their job on social media as a marketing device to help sell their products or services. Other companies discourage employees from mentioning them for public relations reasons. But with the ever-growing impact and reach of social media, companies need to start asking whether they can be legally liable for what their employee posts, shares, or tweets on social media. Is a retail store responsible if an associate posts an unflattering picture on Instagram of a customer trying on clothes? Does a restaurant become legally liable if an employee accuses a customer of theft on Facebook? Can a fast-food chain be held responsible if an employee sends out a series of tweets bullying a vendor or coworker? There is little case law specifically discussing social media liability. However, the answers to the question will likely lie in the scope of employment analysis. In Virginia, an employer may be held vicariously liable for the intentional torts (e.g. defamation, intentional infliction of emotional distress) of its employee only if the tort was committed within the scope of the employee’s employment. Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363 (1948); Oberbroeckling v. Lyle, 234 Va. 373, 381 362 S.E.2d 682, 687 (1987). When an employer-employee relationship has been established, the employer has the burden of proving—by a preponderance of the evidence— that the employee was not acting within the scope of his employment when committing the...
by KPMLAW | Mar 19, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Mats are such a common part of daily and office life that you probably don’t think much about them. We have doormats in front of our houses and you’ve probably seen long, rubber mats in restaurant kitchens that protect against slips and falls, to name just two common examples. Unsurprisingly, tripping injuries involving mats come up all the time in workers’ compensation law. Even though these injuries occur regularly, the law does not offer a clear test for when an injury involving a mat is compensable. This article discusses the legal factors that the Commission will consider to decide when a fall is compensable. Hopefully it will provide guidance on questions to ask during recorded statements. The Law A basic legal inquiry for determining compensability in Virginia is whether there is a “causal connection” between an injury and the “conditions under which the employer requires the work to be done.” Combs v. Va. Elec. & Power Co., 259 Va. 503 (2000). When the general public is exposed to “similar risks” as those causing the employee’s accident, the accident is not compensable. Id. Based on this test alone, it would seem that many, if not most injuries involving mats would not be compensable since mats are such a common part of daily life. However, the analysis the Commission will apply is highly fact-specific and there seem to be just as many cases where the Commission found that a fall involving a mat was compensable as those finding the injury not compensable. The Court of Appeals has decided a couple of...
by KPMLAW | Feb 28, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Judge David Johnson of the Chesterfield County Circuit Court recently dismissed a $100,000.00 lawsuit at the request of KPM Law attorney Bill Pfund, because the plaintiff sued a deceased individual as well as that person’s “Estate”. Although Virginia law allows lawsuits to proceed against an Administrator of a deceased person’s “Estate” (even if the “Estate” has no assets other than insurance which could pay for the plaintiff’s damages), the law requires a Plaintiff to sue an actual living person. In this case, the Plaintiff, Albert Lee, was injured in a car accident with Ray Alexander in April, 2011. Unbeknownst to Lee, Alexander died the following month. Two years later, Lee filed a lawsuit against Alexander. After learning that Alexander was deceased, Lee withdrew his lawsuit by taking a voluntary “nonsuit”. Lee subsequently refiled the lawsuit against both Alexander and the “Estate of Ray Alexander”. No one was appointed to serve as an Administrator of Alexander’s Estate until August, 2016 when Lee’s attorney arranged for an employee from his law firm to serve as the Administrator. Judge Johnson found that the lawsuit was a “nullity”, and that the statute of limitations had expired as to any new lawsuit being filed against the actual person serving as the Administrator of Alexander’s Estate. Virginia law states that “[a]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity. The dead have passed beyond the jurisdiction of the court, and no decree or judgment of the court could be enforced against them personally. There must be such parties to the record as can...
