In Virginia, “a person’s voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendant’s alleged negligence in causing the injury.” Arndt v. Russillo, 231 Va. 328, 332, 343 S.E.2d 84, 86 (1986). When it comes to contact sports, courts from across the country have found that a player assumes the risk of injury inherent to the sport. For Example see Balthazor v. Little League Baseball, Inc., 62 Cal. App. 4th 47, 49, 72 Cal. Rptr. 2d 337, 339 (1998); Crace v. Kent State Univ., 185 Ohio App. 3d 534, 539 (2009); Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 522-523, 984 P.2d 448, 450 (1999); and Morgan v. State, 90 N.Y.2d 471, 482-483, 685 N.E.2d 202, 206 (1997). When a participant steps onto the field, court, or other playing surface, they voluntarily accept the risks of injury that come with that sport. This includes the risk of injury caused by another participant due to the other player’s careless conduct, “because in the heat of an active sporting event a participant’s normal energetic conduct often includes accidentally careless behavior.” McGarry v. Sax, 158 Cal. App. 4th 983, 999 (2008). The rules governing liability for injuries sustained in contact sports are not as clear in Virginia as in other states. The Virginia Supreme Court has not affirmatively ruled on a player’s assumption of risk in the context of contact sports, but the case law of Virginia tends to support the general rule applied in other states—that a participant voluntarily assumes risks inherent to the sport. The Virginia Supreme Court...
Written by Bob McAdam, Esq. Edited by Jessica Gorman, Esq. For a claimant to prove a compensable injury by accident the claimant must prove that he has sustained an injury by accident arising out of and in the course of his employment. A case decided by the Full Commission in March 2023 illustrates why it is important to know as many facts as possible before making a decision regarding a claim. In O’Brien v. Northern Va. Community College, JCN: VA00001876256 (03/03/2023) illustrates the point. The accident occurred while the claimant was walking from her third-floor office to attend a meeting on the first floor of the employer’s medical education building. Finding her way to the meeting blocked by a locked door, the claimant attempted an alternative route by backtracking through the second floor. While walking down a second-floor hallway, the claimant encountered a co-worker. As she turned to address the co-worker, the claimant fell. There were three separate arguments made to support the claimant’s claim, all of which failed before the Deputy Commissioner and, in a 2-1 decision of the Full Commission. The Claimant’s shoe stuck to the floor. The Claimant was distracted when she turned to address a co-worker. The Claimant was holding a computer and papers in her left arm contributed to the awkwardness of the fall. You would think, that based on those three bullet points, the claimant would prevail. However, she did not. This case does not suggest anything other than the “arising out of “ prong is extremely fact specific. When taking the statement of a claimant it is very important to get...
Written by Gary Reinhardt, Esq. As we enter the “endemic” phase of COVID-19, many things changed in our society. For instance, after a couple of years of being isolated, it seems people want to gather more. Further, with the multi-year moratorium on indoor weddings caused by the pandemic, the rush to book those venues created a logjam for the foreseeable future, pushing back planned matrimonial bliss. These situations result in even more living together arrangements. As for insurance, how does this situation impact who qualifies as an “insured” in a homeowners’ or tenant policy and along with that, who has coverage? For example, consider an insured with a live-in girlfriend. Suppose she is not on a lease or deed (and moved in after application, to avoid the easy argument of rate evasion). An insured may attempt coverage for his girlfriend in two aspects, either by claiming she is “family” or a “family member” or invoking the “personal property of others” clause. Initially, the typical policy requires for coverage that “The personal property must be owned or used by you, or your family members who reside with you . . .” What happens when a person, not the named insured (“you”), suffers a loss of his/her exclusive property like clothes or some sort of family heirloom? Many property insurance policies do not define “family member.” However, auto policies, like the standard specimen policy posted to its website by the Virginia Bureau of Insurance, does: “Family member” means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child. Likewise,...
Written by Daniel Royce, Esq. Edited y Bill Pfund, Esq. While much time, attention, and focus in public risk management is rightfully attuned to issues involving law enforcement and emergency personnel, equal attention need be paid to the opposite end of the spectrum, and the myriad issues involving incarcerated persons. A novel issue recently arose in a case involving a contract between the Culpeper County Sheriff (“Sheriff Jenkins”) and the Piedmont Regional Jail Authority (“PRJA”), and whether an inmate was an intended third-party beneficiary of said housing and medical care contract. The case of Hubbard v. Jenkins was recently heard in the Court of Appeals of Virginia and decided on February 7, 2023. 2023 Va. App. LEXIS 73 *; 76 Va. App. 533; 833 S.E.2d 1. Facts and Background In July 2016, Sheriff Jenkins and the PRJA entered a contract which provided for housing the inmates in Sheriff Jenkins’ custody at the Piedmont Regional Jail. Paragraph Four of the contract outlined financial responsibility for medical services rendered to Culpeper inmates. Specifically, the contract specified PRJA’s financial responsibility for routine medical treatment of the inmates and delineated categories of medical care that would require pre-approval by the Sheriff. Emergency medical treatment was addressed separately in Paragraph Two (b) and Paragraph Five stated that the Sheriff “will pay to PRJ[A]…[m]edical costs pursuant to paragraph 4 above,” which lists these costs as “exceptions” that require “prior approval from the Sheriff.” Hubbard was an inmate at the Piedmont Regional Jail. In August 2018, he was assaulted by another inmate and sustained injuries. Hubbard filed a lawsuit in the Eastern District of Virginia against...
Written by Jessica, Gorman, Esq. Edited by Bob McAdam, Esq. Another opinion recently issued by the Full Commission serves as a reminder that every case is fact specific. In Agyemang v. The Gardens at Warkwick Forest, JCN VA00001874767 (January 10, 2023) the Full Commission reversed and vacated an award issued by the Deputy Commissioner. In doing so, the Commission interpreted the “actual risk test.” The Claimant, a food attendant, alleged that she sustained an injury by accident to her left hand on May 1, 2021. She sought medical benefits and periods of indemnity benefits. The Employer raised numerous defenses against the claim, including that the Claimant did not suffer a compensable injury by accident arising out of and in the course of her employment. The Deputy Commissioner concluded that the Claimant proved that her injury arose out of her employment. The Deputy Commissioner summarized the evidence as follows: The Claimant testified that as she was placing several small, light plastic coffee mugs atop a refrigerator in a kitchen in the course of her work as a food attendant, she jammed her left hand on the refrigerator. The histories contained in the available medical records as well as her report of injury to the employer track the Claimant’s credible testimony regarding this incident. Although the Claimant’s injury may have occurred as a result of her own inadvertence, a Claimant’s negligence does not bar an award of compensation and it is found that her injury occurred as a result of an accident as defined under the Act. This incident is an “identifiable incident or sudden precipitating event,” that occurred as a...
Written by Daniel Royce, Esq. Few public risk issues are as poignant, topical, and controversial as liability faced by law enforcement officers for actions undertaken in the line of duty. Our TVs and Social Media feeds are replete with stories of officers accused of bad behavior in the line of duty. Often, these matters result in civil actions where Courts are thrust into the difficult role of deciding cases wrought with emotion in an area of law not always well understood. The Supreme Court of Virginia was recently faced with such a case in the matter of Colas v. Tyree, 2023 Va. Lexis 4*, Record No. 211226 (Sup. Ct. Va., Jan. 26, 2023). As often the case, the facts underlying this matter are tragic. On February 9, 2019, Officer Bradley Colas shot and killed Jeffrey Tyree. The Estate of Tyree brought an action for gross negligence and battery. The Estate alleged that police (and specifically Colas) shot Tyree while he was unarmed and lying on the ground. The trial Court denied Colas’ motion to strike, and the jury found Colas liable and awarded damages to Tyree’s Estate on the battery count only. Colas appealed the matter on the grounds that his Motion to Strike should have been granted because at the time he discharged his weapon, he was acting in defense of another, and thus the fatal shot was justified. In other words, Colas was asserting he had proved his affirmative defense as a matter of law. The Court found that the Estate’s own un-contradicted evidence established that Colas was justified, and applied the adverse party witness rule in...
Written by Daniel Royce, Esq. In the world of public risk, the doctrine of sovereign immunity is often raised but seldom understood. Courts frequently grapple with how far the doctrine should extend and under what circumstances it can be applied. The doctrine of sovereign immunity is “alive and well” in Virginia. Commonwealth ex rel. Fair Hous. Bd. V. Windsor Plaza Condo. Ass’n, 289 Va. 34 (2014). The Virginia General Assembly has employed an incremental approach to enacting a limited waiver of immunity in the Virginia Tort Claims Act. AlBritton v. Commonwealth, 299 Va. 392, 399 (2021). However, claims against localities and employees continue to be governed by common law principles. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244-245 (2004). A new ruling from the Circuit Court of Prince William County (Va) has clarified these issues a little more. The case involved a former public school student and resident of Prince William County. This former student filed a lawsuit alleging negligence by current and former Prince William County Public School officials. The purported negligence of these officials allegedly resulted in her being the victim of sexual assault while a special education student at C.D. Hylton High School. This suit was a revival of a similar action originally filed in January 2019 against the Virginia Board of Education, Prince William School Board, David Cassady (former Superintendent), Michelle Roper (Special Education Director), and Steven Walts (Principal of C.D. Hylton High School). In the prior suit, defendants’ denied all wrongdoing and argued in favor of dismissal on the basis that the plaintiff did not sufficiently show negligence. ...
Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. Between March 16, 2020 and July 8, 2020, the Supreme Court issued several “emergency orders” in response to the COVID-19 pandemic, which tolled all statute of limitations. Since then, there has been considerable debate as to when the tolling period created by these emergency orders runs. In fact, the courts in Virginia have essentially been split on the issue. See Tinsley v. Clarke, 2022 U.S. Dist. Lexis 56625 (W.D. Va. March 28, 2022) and Proctor v. AECOM, Inc., 2021 U.S. Dist. Lexis 162142 (E.D. Va. August 26, 2021); see also English v. Quinn, 2022 Va. Cir. Lexis 7 (Roanoke City Cir. Court Feb. 7, 2022); but then see Ceriani v. Dionsysus, Inc., 2022 U.S. Dist. Lexis 73499 (E.D. Va. April 20, 2022); Heck v. Guion, 108 Va. Cir. 179 (City of Chesapeake Cir. Court June 4, 2021) and Brown v. State Farm, 107 Va. Cir. 343 (Culpeper County Cir. Court March 11, 2021). In general, plaintiffs have taken the position that the emergency orders tolled and extended all statutes of limitations. Thus, plaintiffs argued they had an additional 126 days (the time between March 16, 2020 and July 8, 2020) to file their Complaint in a personal injury action. For example, in Virginia, the statute of limitations for a personal injury suit is 2 years. Assume the date of an automobile accident was November 19, 2019. Generally, the time for plaintiff to file his or her suit in such a case would have run by November 19, 2021. However, due to these emergency orders, a plaintiff would likely...
Written by Randy Lenhart, Esq. Edited by Bill Pfund, Esq. There are two important reasons for asking if a plaintiff has filed her bankruptcy in discovery. The first reason is to try and challenge the admissibility of the plaintiff’s medical bills. In Virginia, a plaintiff is allowed to claim all of their gross medical bills incurred as a result of an accident even if the bills were paid by a health insurance company or other source. This is known as the collateral source rule. However, some Virginia courts and federal courts have determined that a plaintiff cannot recover for the amount of her medical bills that have been discharged in bankruptcy. As a result, this bankruptcy issue can function as a limited exception to the collateral source rule. The other important reason is standing. In Ricketts v. Strange, et al., 796 S.E.2d 182, 2017 Va. LEXIS 5 (February 16, 2017), the plaintiff filed a personal injury lawsuit shortly before the two year statute of limitations expired on her claim against the defendant. After the defendant learned that the plaintiff had filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Virginia, he filed a motion for summary judgment and argued that the plaintiff lacked standing to file her complaint. Instead, the defendant asserted that the plaintiff’s personal injury claim should have been brought by the bankruptcy trustee because the personal injury claim had not been properly exempted from the bankruptcy estate. In granting the defendant’s motion for summary judgment, the circuit court determined that because the plaintiff “failed to disclose [her claim...
Written by Franice B. Georges, Esq. Edited by Bob McAdam, Esq. The recorded statement can be an extremely important tool in defending a workers’ compensation claim. It is an opportunity for the claims handler to speak with the injured worker close in time to the work accident, when memories are the freshest and before outside influences can affect the worker’s version of the accident. You should think of this as an opportunity to thoroughly investigate compensability and to lock in the injured worker’s version of the accident and claims of injury. But, it can also be used to gather important collateral information including the injured worker’s health history, claims history, employment history, identification of witnesses, and subrogation possibilities. Taking an effective recorded statement involves preparation, strategy and listening skills. Based on the information you gather from the employer during your initial investigation about the type of accident and injury, take a moment and think about the types of questions you will want to ask. In addition to the standard questions including contact information for the injured worker and the facts of the accident and injury, consider other things that are a little outside the box that could lead to some helpful information. For example, are there other plausible explanations for the injury outside of the work environment, like hobbies, sports activities, motor vehicle accidents, or pre-existing medical conditions? If the injured worker identifies other potential explanations for the injury, you now have additional avenues to investigate. If the injured worker does not identify potential explanations for the injury and it turns out later that in fact, there are other...
