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Car Accidents
- Judge Finds that Plaintiffs Must Plead Facts to Support Claim for Recklessness.
- Punitive Damages for Cell Phone Users
Premises Liability - Slip and Fall
- Walmart Verdict Should Give Pause
- United States District Court Denies Summary Judgment in Supermarket Slip and Fall Case.
Personal Injury
Evidence
- The Virginia General Assembly Needs to Adopt a Rules of Evidence
- Virginia Supreme Court to Consider Podiatrist Evidence
Richmond Area News
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FAQs
News
- Bucci & Dix moves office to Robious RoadPosted on 11/15/2011
- Amanda Burke Promoted To ParalegalPosted on 4/15/2009
General
The Virginia General Assembly Needs to Adopt a Rules of Evidence
The Virginia General Assembly Needs to Adopt a Rules of EvidenceLabels: Circuit Court evidence
General
Defamation With Draft Complaints
Be wary in sending draft complaints that contain potentially defamatory allegations until Virginia law becomes more clear on the issue.Premises Liability - Slip and Fall
Walmart Verdict Should Give Pause
Recent verdict teaches that business owners need to be careful that sound business judgment is not eliminated in favor of stricter theft loss prevention.Car Accidents
Judge Finds that Plaintiffs Must Plead Facts to Support Claim for Recklessness.
Can a Plaintiff Make a Claim for Recklessness in an Ordinary Car Accident?Labels: car accident personal injury lawsuit
General
Charlottesville Court Affirms Jury Verdict For Less Than Specials
Personal Injury Cases Special Damages Medical Bills Virginia Pain and SufferingLabels:
Car Accidents
Punitive Damages for Cell Phone Users
Virginia should enact legislation prohibiting the use of cell phones without a hands free device and consider punitive damages for egregious cases.An increase in Virginia General District Court limits is a good idea
Virginia General District Court limits will be increased to $25,000General
The Case Of The Unexplained Accident
Can someone be found negligent if the circumstances surrounding the accident strongly suggests that they did something wrong, but there is no direct evidence that they actually did do anything wrong?Labels:
The Case Of The Egg Shell Skull
If someone gets injured from an accident far worse than you would ever expect, is the person who caused the injury responsible for all of the injury, or only what you would reasonably expect?Labels:
The Case Of The Cancelled Football Game
Can you get your money back on a hotel room if the game you are going to see is canceled?Labels:
General
Adultery: Clear and Convincing
Madison County Circuit Court finds clear and convincing evidence of adultery.Police Offers Alleges Civil Rights Violation By Local Government Officials
In mid-October, a Newport News police officer filed suit in federal district court, alleging that local government officials had violated his constitutional right to due process of law. The case is styled Hall v. City of Newport News.The Fourteenth Amendment to the U.S. Constitution requires state and local governments to respect all rights, procedural and substantive, owed to individuals by law. When an individual believes that the government deprived him of a legal right, he can invoke the Fourteenth Amendment and sue the government for acting in an unconstitutional manner.
A due process violation is one of the allegations in Hall v. Newport News. In that case, Officer Hall was fired after two civilian complaints were filed against him in January 2007. He appealed that firing, and a grievance panel voted to reinstate him in October 2007. The city refused to re-hire Hall, and he remained out of work until a circuit court judge ordered the city to re-hire him in September 2008. Hall was not reinstated until November 2008, after the circuit court judge threatened the city with contempt orders. When he was finally reinstated, Hall was relegated to the records department and forbidden from making arrests, as he had in the past. The damage that Officer Hall alleges is the decreased chance for promotion in light of this treatment. Furthermore, the city has yet to pay Hall for the months between his successful appeal before the grievance panel and his actual reinstatement, a period of 13 months. Officer Hall is asking the federal trial court to award him $5 million for the deprivation of his rights and the damage to his reputation and job opportunities.
General
Medical Malpractice Suit Dismissed On Statute Of Limitations Grounds
In Chalifoux v. Radiology Associates of Richmond, Inc., a local trial court dismissed a woman's medical malpractice suit against her radiologist. The woman alleged that the radiologist negligently misread several tests and studies, which, if properly read, would have indicated that she had a brain tumor.The allegedly negligent radiological tests were performed between December 2002 and October 2005. An immediate and threshold problem is apparent from these facts: in Virginia, the statute of limitations for personal injury lawsuits is only two years. In short, the law requires injured persons to file suit within two years of their injury. In this case, Ms. Chalifoux did not file her lawsuit until 2009, four years after the last negligent reading.
Despite Ms. Chalifoux's procedural default, Virginia law allows her an exception to the statute of limitations, called the “continuous treatment rule.” Under the continuous treatment rule, the injury (which starts the two-year statute of limitations clock) does not accrue until an entire course of treatment has concluded. In essence, the rule allows an injured plaintiff to use the latest date she was treated if the discrete medical visits are part of a single or continuous treatment regimen.
In applying the continuous treatment rule, the Richmond City Circuit Court found that Ms. Chalifoux's visits were not part of a continuous treatment. The court held that, even if each test was compared to all the past tests, each radiological test reading was a separate and distinct wrong. As such, the normal two-year statute of limitations should apply to each erroneous test reading.
Labels: personal injury lawsuit
General
Federal Court to Rule on Employer’s Liability for Post-Work Employee Negligence
A three-day jury trial is scheduled to take place sometime in December before the federal trial court for the Western District of Virginia. The trial will focus on whether an employee is within the scope of employment when he is staying overnight in a hotel room for the purpose of receiving operations training at another of his employer’s locations. No Virginia court has previously addressed this question.In Rivett Group, LLC v. Chelda, Inc., Ham’s Restaurants sent a promising employee to receive management training at the restaurant chain’s Danville location. Because the training would take multiple days, Ham’s rented a room in the Super 8 Motel next door to its restaurant for the employee. During the night, the employee had other managerial trainees in his hotel room, and an ashtray was emptied into the trashcan. A fire resulted, causing over $300,000 in damages to the motel. In this case, the employee is responsible for the damage, but is the employer also liable for the actions of its careless employee?
In Virginia, like other jurisdictions, an employer’s liability for its employees’ negligence is determined by the scope of the employment relationship. If the employee-negligence is committed while the employee was acting within the scope of his employment (a postal worker delivering mail, for instance), then the employer is liable under the doctrine of respondeat superior. The difficult question to be answered in this case is whether an employee staying overnight at the request and expense of his employer is acting within the scope of the employment relationship.
The Super 8 Motel owners think that the employment relationship does encompass the overnight stay, borrowing a legal doctrine called the Bunkhouse Rule from Workers’ Compensation Law. Under that doctrine, if an employer provides housing for its employees, then the employer is liable for employee-negligence in the residence. While this rule may help inform the court’s decision, it is not clearly applicable to the unique facts of the case. It is unclear how the federal court will rule on this case of first impression in Virginia.
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General
Prison Guard's Sexual Harrasment Claim Dismissed
A United States Magistrate Judge recommended that two sexual harassment claims be dismissed in an employment discrimination suit last week. In Sizemore v. Southwest Virginia Regional Jail Authority, a female prison guard challenged her termination as contrary to federal sexual harassment laws. In particular, the guard alleged that her superior officer had made illegal sexual remarks to her in such a sever and consistent manner as to amount to a “hostile work environment.” She also alleged that she was fired because she was a woman, in violation of the Civil Rights Act of 1964.On the hostile work environment claim, the federal magistrate recommended dismissal. Federal law requires a plaintiff to demonstrate that an “objective, reasonable person” would find the work environment to be abusive or hostile and that the particular plaintiff actually found the working environment to be abusive or hostile. While the guard in this case produced sufficient evidence to show that a reasonable person would have found the prison to be an abusive or hostile work environment, the court held that she failed to produce any evidence that she actually found it to be hostile. The court stated that the female guard failed to show that she perceived the work environment to be hostile or abusive in the slightest, despite alleging many inappropriate comments.
On the second claim, for unlawful firing due to her sex, the magistrate judge likewise recommended dismissal. On that issue, the female guard produced evidence that male guards were more likely to be demoted or transferred for the same kinds of conduct she was disciplined and ultimately fired for. In response, the prison argued that the female guard was terminated for poor performance evaluations, repeated tardiness, and negligence in her daily work. The court found that argument persuasive, and held that the prison had supplied an adequate non-discriminatory basis for the firing. As such, the guard could not seek damages from the prison for unlawful termination.
Federal lawsuit filed by husband backfires in custody case
The Virginia Court of Appeals recently affirmed a trial court’s reassessment of child custody rights following a divorce settlement. In Serdah v. Serdah, husband and wife separated and entered into a settlement agreement. They agreed to joint legal custody of their only son, with primary physical custody to wife. The parties also agreed that wife would have tie-breaking power in the event of a disagreement between them. Nearly two years later, presumably due to disagreements between the parties, wife filed a motion to amend custody from joint legal custody to sole legal custody in Juvenile & Domestic Relations Court. In response, the husband filed a lawsuit in federal court, alleging that wife’s increasing control over their son violated his Fourteenth Amendment liberty interests to the companionship, care, custody, and control of his son. The wife lost in JDR Court and appealed to the local trial court, where she argued that the husband’s separate federal lawsuit evidenced his inability to deal with her in child-related matters.The trial court agreed and admitted the lawsuit into evidence, holding that the husband’s allegations in the federal suit helped determine the best interests of the child pursuant to the Virginia’s child custody laws. The Court of Appeals affirmed the trial court, holding that because the husband’s federal lawsuit tended to prove a fact in issue (the husbands willingness and ability to deal with the wife), it was properly admitted into evidence and considered by the court.
Labels: child custody
Literal Terms of Settlement Agreement Enforced To Limit Attorney's Fees Claim
The Virginia Court of Appeals affirmed that the terms of a property settlement, like any other contract, must be interpreted exactly as written. In Everett v. Everett, the wife contended that the parties’ property settlement agreement required her husband to pay for all of her attorney’s fees and costs associated with the divorce proceeding. In contrast, the husband argued that the agreement only required him to cover her attorney’s fees if he sought a reduction in child support. The trial court applied principles of contract interpretation to the agreement and sided with the husband. The Court of Appeals, after an independent inquiry, agreed.The Court of Appeals especially looked to the interpretation placed on the settlement agreement by the parties themselves to determine the agreement’s meaning. The Court found the wife’s own actions especially telling: when the husband filed a motion to reduce child support, the wife sought full reimbursement of her attorney’s fees; but when the husband disputed custody of their children, the wife consented to pay her own fees. These actions, the Court said, were consistent with the trial court’s interpretation of the agreement—that the husband would pay for only those attorney’s fees associated with his attempts to reduce child support.
Finally, the husband challenged the wife’s attorney’s fees as excessive. The Court of Appeals rejected this argument, stating that the wife could recover her full attorney’s fees associated with two attempts by the husband to reduce child support, but not the additional costs associated with expedited deposition transcripts the wife requested.
Let this opinion be a warning: draft settlement agreements with the utmost care because a period in the wrong place could cost you. Although the temptation might be to adopt a 'form' settlement agreement to save expenses, one can end up penny wise and pound foolish if sufficient care is not given.
General
Judges in the News
Supreme Court Justice Ruth Bader Ginsburg was released from a Washington, D.C. hospital Friday afternoon. She was hospitalized for light-headedness following a routine outpatient treatment for iron deficiency. Justice Ginsburg, the High Court’s sixth-most senior member, also underwent surgery in February related to early-stage pancreatic cancer.Virginia Supreme Court Justice Barbara Keenan was recently nominated to fill a longtime vacancy on the United States Court of Appeals for the Fourth Circuit in Richmond. Justice Keenan has served on the Supreme Court of Virginia for nearly two decades, and she is one of only three individuals to serve at all three levels of the Virginia state court system.
Justice Keenan’s nomination is significant because the Fourth Circuit is known for two things: its high number of vacancies on the federal bench and its conservative jurisprudence. As President Barack Obama tries his hand at filling judicial vacancies—presumably with more liberal jurists—the Fourth Circuit may simultaneously lose both of these reputations. Also noteworthy, if Justice Keenan is confirmed rapidly enough, Governor Tim Kaine will nominate yet another jurist to the Virginia Supreme Court, bringing his total to three appointments to the state’s highest court.
General
Premarital Agreement Possibly Void Because Unconscionable
The Virginia Court of Appeals has reversed a trial court's decision to strike a wife's evidence that a premarital agreement was void because it was unconscionable. In Chaplain v. Chaplain, the wife contended a premarital agreement was void because she did not understand the terms of the agreement. The prenuptial agreement at issue gave the wife nothing, except the right to $100,000 if she were married to husband when husband died. However, the husband was allegedly worth 20 million dollars. The wife was born in Morocco and claimed she spoke little english when she signed the premarital agreement in 1997. She further claimed that she did not understand the agreement and that she was not provided with a copy of the prenuptial agreement either before or after she signed it. Further, the husband represented that he was a "poor man."The trial court found that wife failed to make a prima facie case, but the Court of Appeals reversed and remanded the case for further evidence to be taken. The Court noted that there "ample evidence" of a gross disparity in the division of assets, and overreaching to support a finding of unconscionability.
The decision appears to be significant in 2 ways. First, perhaps arguments of unconscionability may hold sway in future cases. Generally, unconscionability arguments fail, but in this case at least, it was successful, and perhaps courts will be more willing to accept such arguments in the future. Second, it shows the appellate court's disapproval of striking evidence prematurely.
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General
Federal District Court Remands Personal Injury Action to State Court.
The United States Federal District Court for the Eastern District of Virginia-Richmond Division remanded a personal injury action based on negligence back to state court. Despite plaintiff's medical expenses of $63,964.92, he/she had only sued for $74,900. The court reasoned that the plainitff's ability to amend his/her Complaint was not enough to keep the action in federal court. Under 28 U.S.C. 1332, a plaintiff must allege an amount in controversey that exceeds $75,000 in order to have his/her state law claim heard in federal court.
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Car Accidents
Tractor Trailer Accident On Interstate 95
A Maryland man was killed this week when the tractor trailer he was driving crashed into a vehicle stopped at a construction zone causing a six-car pileup. The fatal vehicle accident occured on Northbound I-95 at exit 35 in Maryland. One driver was injured and had to be transported by ambulance to the hospital for leg injuries. A major gas spill closed the roadway for several hours after the accident.General
Virginia Supreme Court Denies Applicability of Employer's Arbitration Agreement for Employee's Lawsuit.
The Supreme Court of Virginia denied the applicability of an arbitration agreement between Dillard’s Inc. and its employees. This case arose when Dillard’s terminated two employees for suspicion of embezzlement and then filed criminal charges against the employees. Thereafter, the criminal charges were dismissed and the employees brought a civil action of malicious prosecution against Dillard’s. Dillard’s attempted to enforce an arbitration agreement with the employees but the trial court denied its request. The Supreme Court of Virginia granted an interlocutory appeal but decided against Dillard’s. The Supreme Court reasoned that the language in the contract was too narrow to include actions take between the employee and employer after the employee was terminated.Labels:
Bus Accident Leaves Child In Emergency Brain Surgery
A school bus accident in Charlotte, North Carolina has left an 11-year old boy in the hospital after emergency brain surgery. Police say the bus driver lost control of the bus causing the accident. The driver has been charged with reckless driving. The treating physician commented on the child's injuries saying, "he didn't report any significant loss of consciousness, but he was acting a bit dazed and was ... lethargic and answering things slowly." Doctors have to make quick decisions as to whether or not to operate in brain injury cases, because delay can mean serious injury to the brain and permanent consequences. The boy is now recovering, following surgery.Car Accidents
Bus Driver Settles His Claim For 5 Million Dollars While Jury Deliberates in Richmond Circuit Court.
A bus driver settled his personal injury claim for 5 millions dollars while the jury was deliberating during a trial in Richmond Circuit Court. Terry Shoemaker, age 56, was driving a group of high school seniors to Disney World when he was involved in a terrible accident with a tractor trailer, causing Shoemaker to lose his lower left leg and foot. The defense argued contributory negligence. However, plaintiff’s counsel successfully moved the Court to exclude the defense’s accident reconstruction expert. Shoemaker’s past and future medical expenses totaled $457,000 and his lost earnings and lost earnings capacity totaled $350,000. Today, Shoemaker still drives buses with the aid of an artificial leg but his ability to walk is limited on certain terrain. During trial, the jury saw a video of Shoemaker on crutches escorting his daughter down the aisle at her wedding with others there to catch him if he fell.
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Car Accidents
- Cell Phone May Have Caused Accident
- It appears likely that the Virginia General District Court limits will increase from $15,000 to $25,000
Premises Liability - Slip and Fall
- Walmart Customer Accused of Shoplifting Wins $282,000
- False Imprisonment, Malicious Prosecution, and Defamation
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