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...
by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Author: Brian Cafritz, Esquire It is all too common that a customer or piece of equipment spills or drips liquid on the floor. The business learns of the problem and places a cone on the floor either prior to cleaning or after cleaning. Despite the warning cone, a guest falls and sues the business for negligence. Because Virginia applies a contributory negligence standard (1% negligence by plaintiff is a total bar to recovery), the defendant almost always has a decent liability argument to take to the jury. However, the real goal is to have the case dismissed on summary judgment and avoid the uncertainty of a jury altogether. Over the last 12 months, several new opinions in Virginia Federal Courts have provided valuable guidance on how to assess the potential liability of these claims, and they specifically point to critical facts to determine whether summary judgment is appropriate or not. In each of the cases, the court focused on fact issues, such as “How close was the cone to the fall?” and “Was the condition that caused the fall the same condition the cone was warning against? Like most states, the general law of premises liability in Virginia is that a business owes a duty to exercise reasonable care to make the particular area reasonably safe for plaintiff’s use, or to give adequate warning of any hidden or concealed danger that it knows or should know about. However, behind that basic tenet of the law, there are a seemingly infinite number of variations in fact patterns that make the simplest concept problematic. Over the years, the Virginia Supreme Court...
