by KPMLAW | Oct 17, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Brian A. Cafritz, Esq. Earlier this month the Eastern District of Virginia released its opinion in Snider-Jefferson v. Amigo Mobility Int’l, Inc., 2016 U.S. Dist. LEXIS 109319, which reaffirmed that expert witnesses cannot simply opine on their own ideas about product safety, but must instead base their evaluations upon specific industry standards. In Snider-Jefferson, a plaintiff at a Virginia Wal-Mart store was injured by another customer who was riding a motorized cart, when a sharp metal edge on the cart’s platform struck the plaintiff’s ankle. The plaintiff filed suit against Wal-Mart and the cart manufacturer, alleging that the cart had been defectively designed. Specifically, plaintiff contended the cart platform needed a soft rubber edge or other protective guard to shield the cart from customers. In support of these theories, Plaintiff designated a mechanical engineer, Dr. Bawab, who inspected the cart and created a computer model of the accident. Dr. Bawab concluded that adding a rubber bumper to Wal-Mart’s carts would have been a simple and cost effective solution which would have greatly mitigated the risk of harm caused by Wal-Mart’s carts. Defendant moved to exclude Dr. Bawab and sought summary judgment. Judge Lawrence Leonard of the USDC EDVA (Norfolk Division) granted the motion and dismissed the case. The Court noted that, “[i]n his report, Dr. Bawab did not consider any industry or government standards when assessing the cart’s design . . . . Dr. Bawab failed to perform the recommended [Underwriters Laboratory (“UL”) standard] sharpness testing on the cart’s edge, and Dr. Bawab never indicated whether UL standards required a rubber bumper.” Id. at *13. In depositions,...
by KPMLAW | Jul 12, 2016 | KPMBlog, News, Uncategorized
Written by Chris Bergin Edited by Brian Cafritz Racial and Religious discrimination has been an issue in our country for generations. Gender, Age and Sexual Orientation discrimination, however, has become more of an issue in recent years. For Retailers and Restaurateurs who deal with the public at large, the issue is even more pronounced. On June 26, 2015—just about one year ago—the United States Supreme Court returned its landmark ruling in Obergefell v. Hodges holding that the United States Constitution guarantees same-sex couples the right to marry. In the immediate aftermath of this decision, some business owners actively protested the ruling by categorically refusing to provide services for same-sex weddings. In doing so, those same businesses, knowingly or not, opened themselves up to liability under public accommodation statutes. Although public accommodation statutes first appeared in the 50’s and 60’s to combat racial discrimination, they are rapidly evolving to combat sex discrimination, religious discrimination, and discrimination against the LGBTQUIA community. Restaurant and retail owners should understand these statutes to ensure compliance and mitigate risks. Generally speaking, property owners have a right to exclude anyone from their private property for any reason. There is, however, one major limitation on this general rule: federal, state, and municipal public accommodation statutes. These statutes prohibit private property owners who operate “public accommodations” from excluding customers on certain discriminatory grounds. For business owners, this raises two questions: (1) what qualifies as a public accommodation, and (2) who do public accommodation statutes protect? What Qualifies as a Public Accommodation? Under the federal public accommodation statute, a “public accommodation” is one of the following: Hotels and other...
by KPMLAW | Jun 14, 2016 | KPMBlog, News, Updates
Author: Lee Hoyle, Esq. Editor: Brian Cafritz, Esq. Although the UCC offers some consistency between states, Products liability lawsuits, in general, are creatures of state law. 50 states means 50 potentially different tort laws. Each state can take its own approach to issues – from whether to adopt strict liability to the standard of admissibility for expert testimony to admissibility of other complaints about the product – and decide differently. Therein lies the problem. The potential disparity between outcomes from one state to the next can cause nightmares for anyone attempting to evaluate risks associated with selling products across the country. Fortunately (at least for products liability defendants), in some cases, Federal law may dictate a single, consistent answer: no products liability on a theory inconsistent with Federal law. Even where states have answered a question one way, Federal law may have something else to say. Federal law is the supreme law of the land, so any conflicting state law cannot be enforced. Such conflicts rarely arise in tort law, because there are few federal laws addressing torts. There are some industries that receive claims preemption as to certain claims due to extensive federal regulation of the industry as a whole. For example, drug manufacturers could not be sued for failure to warn when their labels complied with FDA requirements in Pliva, Inc. v. Mensing, 564 U.S. 604 (2011), while an automaker could not be held liable for failing to include airbags when such a requirement conflicted with the Department of Transportation’s regulations in Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000). One interesting (and still developing)...
by KPMLAW | May 24, 2016 | KPMBlog, News, Profiles, Uncategorized
AM Best, the oldest and most widely recognized provider of ratings, financial data and news with an exclusive insurance industry focus, recently featured KPM’s Brian Cafritz on their “Best’s Directories Insurance Law Podcast.” Brian has been closely following news and rulings related to restroom access for transgender individuals. Listen to the podcast here or view the transcript below. You can follow Brian on Twitter at @briancafritz. John Czuba: Welcome to the “Insurance Law Podcast,” the broadcast about timely and important legal issues effecting the insurance industry. I’m John Czuba, managing editor of Best’s Directory of Recommended Insurance Attorneys. We’re pleased to have with us today attorney Brian Cafritz from KPM LAW in Richmond, Virginia, with additional offices in Fairfax, Norfolk, and Roanoke, Virginia. Brian is a partner in the firm, and helped to expand the firm’s regional defense network. He focuses his practice on the defense of Fortune 500 companies that operate under large self-insured retentions. He co-founded the National Retail and Restaurant Defense Association to promote the education and communication channels of industry leaders and counsel. Brian was elected to the first two terms as the association’s first president. He is also the only Virginia attorney selected to IALDA, a defense network dedicated to the defense of the amusements and leisure industry. We’re very pleased to have you with us today, Brian. Brian Cafritz: Thank you very much, proud to be here. John: Today’s topic is on legal issues pertaining to transgender restrooms, and Brian this has been a very topical issue of late, can you comment on which states have been the most impacted? How common is...
by KPMLAW | May 24, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. With the ubiquitous nature of social media, more and more retail and restaurant establishments are requiring confidentiality clauses in settlement agreements to contain strong penalties that deter a breach. In an effort to streamline litigation should a breach occur, those provisions often contain liquidated damages clauses, which state the parties agree a breach of confidentiality would result in a return of all settlement proceeds. This begs the question, is this provision enforceable? If a plaintiff breaches confidentiality, can you get the settlement funds back? The Supreme Court of Virginia has held, and the Eastern District of Virginia has recently reaffirmed, that parties “may agree in advance about the remedy resulting from a breach, including damages, but only when (i) the actual damages contemplated at the time of the agreement are uncertain and difficult to determine with exactness and (ii) the amount fixed is not disproportionate to the probable loss.” Job v. Simply Wireless, Inc., 2015 U.S. Dist. LEXIS 171535, *11 (E.D. Va. Dec. 22, 2015). A breach in confidentiality would be a good example of when actual damages are unknown, as the facts surrounding the breach are also unknown at the time the release is negotiated and executed. The bigger question for a restaurant or retail establishment to consider is whether or not the amount of damages is proportional to the probable loss. To help answer that question, Virginia courts will allow discovery into a liquidated damages clause to determine if the “stipulated damages are grossly in excess of the actual damages suffered by the non-breaching party.” O’Brian...
