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 | 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...
by KPMLAW | Apr 24, 2016 | KPMBlog, News, Uncategorized, Updates
KPM LAW is honored to have two of its attorneys selected to the 2016 Virginia Super Lawyers list, as well as an attorney selected to the 2016 Virginia Rising Stars list. Partners Claire Carr and Brian Cafritz, both of the Richmond office, have been named to the 2016 Virginia Super Lawyers list, while Rachel Riordan, also a partner in the Richmond office, has been named to the 2016 Virginia Rising Star list for a second time. Super Lawyers, a part of Thompson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of recognition and professional achievement. Super Lawyers utilizes a patented and multiphasic selection process that includes peer nominations, evaluations, and independent research by Super Lawyers. The Super Lawyers List recognizes no more than 5% of Virginia attorneys while the Rising Star list recognizes no more than 2.5%. Please join us in congratulating Claire, Brian and Rachel on their achievements in the...
by KPMLAW | Jan 18, 2016 | KPMBlog, News, Uncategorized, Updates
Author: Chris Bergin, Esq. Editor: Brian Cafritz, Esq. In today’s specialized society, hiring independent contractors is a necessity. As demonstrated in the recent September 2015 Virginia circuit court decision, Cherry v. Palace on Plume St., how one executes the master-servant relationship is a key issue that directly impacts one’s liability. The widely accepted general rule is that employers are vicariously liable for the torts of their employees, but not for the torts of their independent contractors. In today’s environment where road rage, random violence, and binge drinking are commonplace, business owners have a greater burden to provide a safe haven for its patrons. Using independent contractors to perform security service allows the premises owner the benefit of security services, but greatly limits his risk of liability for any torts the independent contractor might commit while performing those services—assault, battery, false imprisonment, and negligence, to name a few. Hiring an independent contractor, however, is not a panacea. A business can still be held vicariously liable for the torts of its independent contractors when certain factors exist. Those factors include scenarios where the independent contractor was hired to conduct work that was: (1) unlawful, (2) a nuisance, (3) inherently dangerous, or (4) likely to produce injury “in the natural course of events,” unless special precautions were taken. Fortunately, the Supreme Court of Virginia has held that security guard work generally does not fall into any of these categories. See Broaddus v. Standard Drug Co., 211 Va. 645, 179 S.E.2d 497 (1971). Yet another boon for the restaurant and retail owner. However, the court may find that the contractor’s negligence is imputed...
