by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
The issue of transgender restrooms continues to evolve, and last week, the Fourth Circuit Court of Appeals in Richmond, Virginia became the first federal court to weigh in on the issue. The ruling comes in the case of G.G. v. Gloucester County School Board. The case has received a great deal of attention due to the recent controversial legislative enactments in North Carolina and other states, which have attempted to legislate which restroom transgender persons must use. G.G. was born female and when the vents of this lawsuit had taken place, had begun hormone therapy. G.G. legally changed his name to a traditionally male name and prior to his sophomore year, informed the school that he was a transgender boy. By all accounts, G.G. lived all aspects of his life as a boy. In late 2014, the Gloucester County School Board prohibited G.G. from using the male restroom in his high school. G.G. sued the School Board on the grounds that the school discriminated against him in violation of Title IX and the Equal Protection Clause of the Constitution, and he moved for a preliminary injunction to stop the school’s restroom prohibition. The District Court denied the injunction, holding that G.G. lacked sufficient evidence after it refused to consider hearsay expert testimony on the topic. It further held that using a unisex bathroom in the school was not unduly burdensome compared to the hardship to the other students caused by G.G’s presence in the men’s restroom. Finally, the District Court granted the School Board’s Rule 12(b)(6) Motion to Dismiss the Title IX allegations, claiming that requiring G.G. to use...
by KPMLAW | Feb 23, 2016 | KPMBlog, News, Uncategorized
Author: Brian Cafritz, Esq. By law, most states require restaurants or retailers to provide suitable restrooms for its guests. But which guest is permitted to use which restroom is becoming an issue that restaurants and retailers must ask themselves to avoid legal action related to discrimination or privacy violations. If your guest is transgender, what obligation does the restaurant or retailer have to provide a facility for that guest? What duty does the business have to protect its other guests from what may be an invasion of privacy? What should the business’ employees do when speaking to the transgender guest to resolve any confusion? While the issues of transgender equality, anti-discrimination, and privacy are currently focused on state-run government properties, public restrooms found in Retail and Restaurant establishments must take notice. Absent legislative enactment, what is a restaurant or retailer to do? The easy answer for restaurants and retailers is that single occupancy restrooms are preferred and should be made gender neutral. Indeed, this is legislated in some jurisdictions already (See the District of Columbia). For buildings that only have multiple occupancy restrooms, they can often be easily retrofitted for more privacy. Urinary dividers and/or stall doors and walls can be extended from ceiling to floor. Regardless of the physical layout of the restroom, employees of restaurants and retailers should be trained on handling this sensitive issue. The best practice is to allow guests to use restrooms of their sexual identification, rather than biologic gender. Employees should not openly prevent guests from using a restroom consistent with the guest’s sexual identity. Moreover, under no circumstances, should the employee take...
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...
by KPMLAW | Oct 29, 2015 | KPMBlog, News, Uncategorized, Updates
Last month, KPM’s Brian Cafritz reported about a string of recent rulings on slip and fall cases and the impact that placing a warning cone has on a company’s liability. Our report was quite prophetic, as it preceded yet another ruling that reinforced our analysis. UPDATE By Brian Cafritz, Esq. On October 8, 2015, Judge Moon of the USDC, Western District of Virginia, published his opinion in Robinson v. Kroger Co., Case No 6:14-cv-00046. In Robinson, plaintiff slipped and fell on liquid at a Kroger store when no cones or signs were displayed to warn of danger. Store video showed that the spill in question was created only 65 seconds before Robinson fell, and 37 seconds from when Kroger was notified of the spill. Facts revealed that Robinson entered the area of the spill and turned her cart to walk towards a self-checkout stand. In doing so, she pushed her cart directly through the spill, and once her feet hit the area, they slipped from under her. In depositions, Robinson stated that the puddle sized spill was beige, which was the same color of the floor. Ms. Robinson also acknowledged that nothing was hiding the liquid substance from her view, and that she was able to see it without difficulty when she stood directly above the spill. When asked whether, “if [she] had been looking at the floor looking for this liquid, would [she] have been able to see it,” Ms. Robinson responded, “I guess.” Based on this testimony, Kroger moved for Summary Judgment, arguing that because Robinson could clearly see the spill after the fall, and because she...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Rachel Stewart Edited by Brian Cafritz When dealing with a restaurant or retailer’s obligations to protect invitees from fights or other violent acts, the phrase “danger zone” is more than a catchy phrase from the “Top Gun” soundtrack. New rulings have broadened the “danger zone” or “zone of imminent harm” that a business must recognize to avoid potential liability from criminal conduct. Under Maryland law, restaurants and retailers may be liable for a patron’s personal injuries caused by the criminal acts of a third party when the business is deemed to possess certain knowledge and a presumed ability to foresee the harm to their patrons. There are three recognized theories of negligence in which the courts will impose a duty on restaurants and retailers to protect customers from criminal activities: When the property owner has knowledge of prior similar incidents and has failed to eliminate conditions that contributed to the criminal activity, such as providing security personnel, lighting, locks and similar instrumentalities; When the property owner has knowledge of prior conduct of the criminal actor thereby making the criminal activity foreseeable; or When property owner has knowledge of events occurring on the premises prior to and leading up to the criminal action, which make imminent harm foreseeable. Recent rulings have looked at the third theory – whether or not imminent harm is foreseeable. The majority of Maryland’s case law dealing with the foreseeability of imminent harm test focuses on the property owner’s knowledge of events then occurring on their premises. The takeaway from these cases is that if a restaurant or retailer has reason to foresee imminent...
