House Bill 3296 and Senate Bill 1142 passed the 2009 Virginia General Assembly. Effective July 1, 2009, they amend Va. Code Ann. §37.2 and §54.1.
These amendments constitute extensive revisions to the Virginia Health Care Decisions Act. These include, but are not limited to, appointment and authority of agents, determination of incapacity and restored capacity, and other advance directive provisions.
House Bill 1799 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §2.2-3705.3.
The amendment adds the Virginia Fraud and Abuse Whistle Blower Protection Act. A “whistle blower” is a state employee who reports or testifies about fraud or abuse.
The act prohibits employers from retaliating or otherwise discriminating against a whistle blower. State employers also are required to post notices of the protections.
Progressively, the Act creates a Reward Fund. Whistle blowers who disclose information of fraud or abuse saving at least $10,000.00 are entitled to a monetary award of 1% of the cost savings (up to a total reward of $5,000.00).
Senate Bill 843 failed to pass the 2009 Virginia General Assembly. It was defeated by the wealthy powerful healthcare industry, including the Virginia Hospital and Healthcare Association (“VHHA”), which represents the one hundred leading hospitals and other healthcare institutions in Virginia.
Va. Code Ann. §8.01-581.15, the so-called “medical malpractice cap,” limits the amount that any victim patient actually can recover from an offending healthcare provider, regardless how much appropriately is awarded by a jury or judge at trial. Virginia’s cap has been fixed at $2,000,000.00 since July 1, 2008.
Virginia’s medical malpractice cap is protectionist special interest legislation of healthcare providers, which no other citizen of Virginia enjoys. It inequitably limits the fair compensation awarded by juries and judges to victim patients who have been injured most profoundly by nursing home abuse and other medical malpractice.
The VHHA and other healthcare providers successfully lobbied against increasing the current inequitable limit of victim compensation for nursing home abuse and other medical malpractice. In fact, if the VHHA and others in the health industry had their way, the amount recoverable by victim patients would be decreased regardless how disabling and otherwise severe the injuries inflicted upon them.
Indeed, as a foil to Senate Bill 843, health industry proponents sought passage of their own special interest legislation, House Joint Resolution 658. That would have commissioned a sub-committee to study the supposed “current and impending severe shortage” of medical doctors ostensibly due to “the effect of excessive malpractice insurance premiums, malpractice laws and caps…”.
Today the University of Virginia (“UVA”) School of Law in Charlottesville, Virginia, conducts First-Year Oral Arguments in its traditional Moot Court Competition. Avery T. “Sandy” Waterman, Jr., Esq. has been invited and is participating as a Judge.
Competition ever is stiff and winning always an honor. Senator Edward M. “Ted” Kennedy is one of the noted UVA Competition victors.
This year’s Competition features three issues. Mr. Waterman will judge the Medical Arbitration issue (medical arbitration agreements, powers of attorney and spousal agency), since he routinely handles medical malpractice cases.
Mr. Waterman participated in the Moot Court Competition at UVA while a student. He also represented the Law School in regional competition with other law schools.
House Bill 2057 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §8.01-52.1 and §8.01-581.20:1.
Prior to amendment, the statute rendered certain so-called “gestures expressing sympathy or general sense of benevolence” inadmissible against a healthcare provider in cases of nursing home abuse and other medical malpractice. The amendment expands that to include “commiseration, condolence, compassion . . . together with apologies.”
At common law and in court rules, such admissions of liability or other statements against interest by a wrongdoer could be introduced in cases of nursing home abuse and other medical malpractice. Hence, the statute and its amendment is protectionist legislation enjoyed by healthcare providers and no other citizens of Virginia.
Studies have shown that healthcare providers guilty of nursing home abuse and other medical malpractice who admit liability to their patients after-the-fact are less likely to be sued for their wrongdoing and resulting damages. Thus, this special interest legislation essentially lets all offending healthcare providers admit liability with impunity toward avoiding being sued, but then to duplicitously deny liability to unknown jurors and to gag the knowing victims at trial if still sued.
Senate Bill 1275 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-399.
That statute codifies the so-called “physician-patient” privilege. That privilege renders confidential from disclosure communications between patients and physicians in the course of treatment for brain injuries and other personal injuries.
Before the amendment, overly aggressive physicians asserted that the privilege was theirs to waive, and disclosed confidential information of their patients to help defense-oriented interests, such as other healthcare providers committing medical malpractice, vehicle accident offenders, defective product manufacturers, defective premises owners, sexual abuse perpetrators and other criminals. But the statutory amendment is clear that the patient alone will control whether any privilege is waived and confidential communication is disclosed.
Senate Bill 1154 passed Virginia General Assembly in 2009. Effective July 1, 2009, It amends Va. Code Ann. §8.01-413.
Prior to the amendment, healthcare providers routintely were charging a flat fee of $10.00 plus $0.50-$1.00 per page for providing their patients their account statements. That obviously cost victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes who simply were trying to get their bills paid.
After the amendment, healthcare providers must provide all patients an itemized listing of charges and account balance at no cost. Indeed, a victim patient will be entitled to request free printouts up to three times every twelve months.
For many patients the cost savings will be multiplied across numerous healthcare providers. Most victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes have to consult the variety of healthcare providers.
On March 24, 2009, Gloucester Circuit Court denied an Amended Motion to Dismiss, which asserted that an Amended Complaint seeking installment and other payments was time-barred upon the statues of limitation for breach of contract and fraud. The case is Altizer v. Altizer, No. CL08-584.
The Gloucester Circuit Court also overruled on Amended Demurrer to the Amended Complaint. Among other things, Defendant has asserted that the suit failed to state a claim on a valid enforceable contract.
In Virginia, the statute of limitation for a fraud is two years from the time when a reasonable person should have discovered it. But when exactly the statute begins to run depends on whether there were multiple occurrences.
“A cause of action for breach of a contract or duty accrues on the date of breach. Va. Code Ann. §8.01-230. Virginia recognizes that multiple breaches or occurrences can give rise to separate causes of action.” Park v. Alcon Surgical, Inc., 1993 U.S. App. LEXIS 8419, * 9 (4th Cir. 1993).
“Adopting [Plaintiff’s] contention,” the Virginia Supreme Court observed, “the trial court ruled that ‘each [tortious] discharge was a separate actionable event’ for which [Plaintiff] was entitled to seek recovery ‘during the 5 years preceding the filing of suit’. We agree.” Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235, 239 (1987)(repeated trespass). “If the wrongful act is of a permanent nature and one that produces all the damage which can ever result from it, then the entire damages must be recovered in one action, and the statute of limitations begins to run from the date of the wrongful act. Conversely, when wrongful acts are not continuous but occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action. In the latter situation, a plaintiff’s right of recovery . . . is limited by the statute of the damages sustained during the five years preceding the institution of the suit.” Id. (emphasis added)( brackets omitted).
The Virginia Supreme Court recently embraced Hampton Roads in Am. Physical Therapy Ass’n v. Fed’n of State Bds. of Physical Therapy [“APTA”], 271 Va. 481, 484-485 (2006). In reversing and remanding a trial court that incorrectly had applied a single unitary statute of limitation period to discrete occurrences, the Virginia Supreme Court in APTA reiterated “if the wrongful acts are not continuous and ‘occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action’.” Id. at 484.
“Since the statute of limitations is an affirmative defense, [Defendant] has the burden of proving facts that bar [Plaintiff’s] claim.” Park, supra, 1993 U.S. App. LEXIS 8419, * 11. When there is conflict over when a plaintiff should have discovered that the defendant committed fraud, the defensive pleading must be denied. See, Bd. of Dirs. of the Lessner Pointe Condominium on the Chesapeake Bay Ass’n, Inc. v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 422, * 27-28 (Virginia Beach Jun. 18, 2002).
In Virginia, the statute of limitation for a breach of written contract is five years and of oral contract is three years. But when exactly the statute starts to run depends on whether there are multiple breaches.
Over half a century ago, the Supreme Court of Virginia declared, “It is well settled that in the absence of [an acceleration] provision [obligations payable in installments] are payable as they are written, and the time of payment is not accelerated by the happening of other events not specifically agreed upon.” Holcomb v. Webley, 185 Va. 150, 156 (1946). Correspondingly, the applicable statute of limitation runs from the time each individual installment payment matures and falls due according to its terms. Id. at 158. Hence, the Virginia Supreme Court in Holcomb overruled a plea of the statute of limitations as to each individual installment payment falling due within the pertinent limitation period preceding the filing of suit, reversing and remanding the trial court’s decision to the contrary. Id. at 159.
Prior Virginia Supreme Court decisions and subsequent Virginia Circuit Court decisions embody Holcomb. “Courts generally have agreed that for [breach of contract] claims based on an installment contract, a cause of action accrues, and the statute of limitations begins to run, when each installment becomes due. See, 15 Richard A. Lord & Samuel Williston, Williston on Contracts §45:20 (4th Ed. 2000).” Gilliam v. Gilliam, 2003 Va. Cir. LEXIS 173, * 3 (Fairfax Aug. 14, 2003).
“Virginia follows this general rule. See, Ten Braak v. Waffle Shops, Inc., 542 F.2d 919, 924 n.6 (4th Cir. 1976)(‘We note that Virginia does follow the majority rule recognizing contracts for installment payments are divisible, thereby permitting separate actions to be maintained to recover installment as they fall due.’ (citation omitted)); Jones v. Morris Plan Bank of Portsmouth, 168 Va. 284, 191 S.E. 608 (1937)(stating that Virginia does follow the majority rule recognizing that contracts for installment payments are divisible, thereby permitting separate actions to maintain to recover installment payments as they fall due); Williams v. Matthews, 103 Va. 180, 48 S.E. 861 (1904)(holding that the statute of limitations on claim to recover five unpaid installments of stock subscription land from dates on which unpaid installments were due).” Gilliam, 2003 Va. Cir. LEXIS 173, * 3-4.
Thus, in the Virginia domestic law case of Gilliam, where one spouse promised to pay the other monthly installment payments over twenty years, it was “a divisible installment contract, and the statute of limitations for each payment due under the Note began to run when each installment became due.” Id. at * 4. “As a result,” concluded Gilliam, “the statute of limitations has not yet run for any installments or other payments due from [five years prior to suit filing] to the present date, which include any unpaid principal and interest”. Id.
Continue reading " Virginia Contracts: Statute of Limitation – a Lawyer’s Installment " »
House Bill 2035 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-419.
That statute routinely is introduced unto evidence in cases of vehicle accidents, nursing home abuse, other medical malpractice, product liability, premises liability and other cases involving wrongful death, brain injury and other personal injuries. Its actuarial table of life expectancy helps a jury or judge quantify the duration of a victim’s damages.
Virginia citizens generally living longer translates into higher life expectancy figures. That means victims of wrongful death, brain injury and other personal injury generally will suffer longer and deserve greater damage awards.
Senate Bill 39 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §46.2-373.
The new amendment increases the threshold at which motor vehicle accidents are subject to written reports by the police. The vehicle damage threshold moves from $1,000.00 to $1,500.00 to be reportable.
From a personal injury standpoint, the amended statute stands to create more “he said, she said” disputes after-the-fact, because no independent officer will be taking statements or otherwise recording facts independently. Hence, the onus will be on victim’s of such vehicle accidents to identify witnesses themselves, which may prove a daunting if not impossible task given the accident circumstances and their personal injuries.
House Bill 1876 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §46.2-1078.1.
Toward avoiding vehicle accidents, the new amendment prohibits operating a motor vehicle while using any hand held personal communication device to enter or read a text message. However, it exempts GPS, reporting an emergency, or reading caller identification information.
The new law will carry a traffic fine of $20.00 for first-time offenders and $50.00 for repeat offenders. More importantly, violating it while involved in a vehicle accident will constitute negligence per se.
Pre-trial mediation has enjoyed such success and popularity that increasingly Virginia circuit courts are requiring litigants to submit to it shortly before trial. In Newport News, Hampton, York County and other venues in Hampton Roads, parties must mediate vehicle accidents, medical malpractice, and many other cases.
The format of court-facilitated mediation is the same as that of private mediation. The main difference is that the court provides the mediator, who always is a retired Virginia circuit court judge, at its own expense – a real saving to the parties.
Across Virginia, the success rate of court-facilitated mediation apparently is around 70%. On the Peninsula, some of the more popular mediators boast success rates of 85%+.
Federal courts in Virginia also are mandating mediation in personal injury, employment, and other civil cases. Federal magistrates, current and senior, routinely serve as mediators there.
Circuit court mediators tend not to be as successful in resolving vehicle accident, medical malpractice, and other personal injury or wrongful death cases involving substantial injuries and damages; which the parties themselves commonly take to private mediation, except in “no offer” cases. But court-facilitated mediation shines in resolving the small and moderate size vehicle accident cases, with them usually settling within an hour or two (or not at all).
Continue reading " Virginia Mediation: Court-Facilitated – a Lawyer’s Requirement " »
Mediation is a dispute resolution process as an alternative to trial. It is similar to arbitration, but significantly is voluntary and non-binding.
Over the past decade in Virginia, mediation has gained in popularity. Competing private companies comprised principally by many retired judges and secondarily by some practicing lawyers sprout yearly.
Given the delays, expenses and risks of trial and appeal, lawyers increasingly are resorting to mediation after discovery in substantial nursing home, other medical malpractice, vehicle accident, product or premises defect, sexual abuse and other personal injury cases. Of course, mediation costs are not trifling: mediators command from a low of $200.00 to more than $500.00 per hour for all time expended on the case.
Typical mediation protocol is lawyers submit confidential concise case summaries and possibly limited materials the mediator and briefly confer with the mediator shortly before the parties and they are convened in a law office. At the mediation session itself, the mediator provides a brief overview of the process; all present sign a confidential mediation agreement; each side may present an abbreviated opening/closing-type statement; the parties retire to separate rooms; and the mediator then runs “shuttle diplomacy” between the two camps, pointing out strengths and weaknesses to each, giving personal opinion and valuations, and trying to bring the parties together on some common if not middle ground.
The injection of the neutral mediator into the adversial and off-times acrimonious or distrustful dynamic between the parties and their lawyers provides a critical modicum of objectivity and confidence. Hence, cases of wrongful death, brain injuries, and other significant personal injury with a seemingly insurmountable gulf between the parties often is bridged by a skillful proactive mediator.
In 1986, Virginia codified the Uniform Arbitration Act. Va. Code Ann. §8.01-581.01, et seq. The 16-section Act presumptively governs arbitration agreements in Virginia absent clear contractual provisions to the contrary.
Arbitration is a binding dispute resolution procedure whereby a “judge” agreed upon by the parties decides a controversy based on a summary hearing with relaxed evidentiary rules; and generally is a cheaper and faster alternative to litigation. However, it sacrifices the parties’ Constitutional right to jury trial and comprehensive pre-trial discovery; so parties should not enter an arbitration agreement lightly.
Courts generally favor and enforce arbitration agreements and awards. The Act enumerates few bases for vacating, modifying and/or appealing an arbitration award.
Arbitration agreements are prevalent in certain commercial settings, e.g., securities, architecture, etc. To the extent that arbitration agreements control an entire industry, so that a consumer has no real free choice to contract or deal otherwise, it could be argued that such arbitration agreements collectively and individually are unconstitutional as an abridgement the right to jury trial or, at the least, are unconscionable.
Lawsuits for wrongful death, brain injury, and other personal injuries contain an ad damnum, i.e., the dollar amount of damages sought by the plaintiff victim. Unlike some other states, Virginia allows a plaintiff’s lawyer to mention the ad damnum to jurors during trial.
By statute, a plaintiff’s lawyer in state court is entitled to mention the ad damnum (or, alternatively, a lesser amount sought at trial) in both opening statement and closing argument in every case. “Notwithstanding any other provision of law, any party in any civil action may inform the jury of the amount of damages sought by the plaintiff in the opening statement or closing argument, or both. The plaintiff may request an amount which is less than the ad damnum in the motion for judgment.” Va. Code Ann. §8.01-379.1.
Conspicuously, however, the Virginia Supreme Court has held that statutory right does not extend to mentioning the ad damnum in voir dire, i.e., the examination of prospective jurors in the jury selection process. Mentioning the ad damnum during voir dire rest within the sound discretion of the trial court. Speet v. Bacaj, 237 Va. 290, 293 (1989).
Not surprisingly, circuit courts in Virginia are divided on mentioning the ad damnum during voir dire. Hence, to avoid potential mistrial, a savvy personal injury lawyer needs to determine the prevailing local practice.
Also, a prudent personal injury lawyer must be mindful that the Virginia statutory right does not apply in federal courts in Virginia. Mentioning the ad damnum in even opening statement and/or closing argument is discretionary with a federal judge.
Virginia Supreme Court Rules 4:8 and 4:9 specify time deadlines – usually 21 but sometimes 28 days – for a party to object or to answer and produce. Thus, a failure to object on time maybe deemed a waiver of the objection, particularly in medical malpractice cases where counsel tend be more picayune.
Plaintiffs and Defendants alike have suffered waivers where they failed to object to Interrogatories and/or Responses for Production on time. See, e.g., Waterman v. Halverson, No. 26466-RW, Order at 2 (Newport News Sep. 21, 1999); Keeble v. Webb, No. L98-714, Order (Norfolk May 14, 1999); and Passmore v. Sentara Hosp.- Norfolk, No. L96-1641, Order (Norfolk Jun. 17, 1997). Passmore, a medical malpractice action, declares “by not filing objections to Plaintiff’s Request for Production of Documents within twenty-one (21) days after that discovery pleading was served, this Court is of the opinion that Sentara Hospitals – Norfolk has waived any objections….” See also, Garner v. Sentara Gen. Hosp., No. CL00-1107, Order at 2 (Norfolk Feb. 12, 2001); and Jennings v. O’Shanick, No. LT2097-3, Order at 1 (Richmond Nov. 12, 1991).
Principles of equitable estoppel apply to all areas of Virginia law. Virginia’s Premarital Agreement Act (“Act”), Va. Code Ann. § 20-147, et. seq., is no exception.
Under the Act, a spouse need not sign the agreement at the same time as the other spouse, or even before suit is filed. In Wilson v. Wilson, 2004 Va. App. LEXIS 17, *2-4 (2004), husband alone signed the agreement and delivered it to wife on February 25, 1999; filed a bill of complaint more than two years later on December 31, 2001, alleging no agreement; and was met with a cross-bill asserting the agreement. Husband unsuccessfully contended that “the agreement was invalid because wife signed it only after husband filed his bill of complaint.” Id. at 5. Wilson upheld the commissioner’s finding that “the agreement was a valid, enforceable contract,” observing “no requirement that the execution of the agreement by wife be contemporaneous with that of husband.” Id. at 3-5.
“The principle of equitable estoppel applies to antenuptial agreements.” Miller v. Miller, 2007 Va. App. LEXIS 340, *9 (2007). “Elements necessary to establish equitable estopppel, absent a showing of fraud and deception, are a representation, reliance, a change of position, and detriment.” Id. at *10. “[I]t is a well established principle in Virginia jurisprudence that marital agreements are, when all is said and done, contracts which must be interpreted and enforced in accordance with the general rules of contract law. McCall v. McCall, 43 Va. Cir. 296, 301 (Rockingham Sep. 4, 1997). “The Courts in Virginia have long held that the doctrine of estoppel or equitable estoppel is available in all proceedings including those relating to property settlement agreements . . . .” Id. “In fact the Premarital Agreement Act itself provides [and] does not abolish all of the other equitable defenses, such as laches or estopppel that are available to litigants in a court of equity.” Id. McCall applied the “equitable estoppel defense” where the “wife relied to her clear detriment upon the implied representation of the [husband]” Id. at 302.
Today begins the annual convention of the Virginia Trial Lawyer’s Association (“VTLA”) in Williamsburg, Virginia. Avery T. “Sandy” Waterman, Jr., Esq. is one of its Williamsburg Society members and will be attending.
VTLA is an association of trial lawyers from throughout Virginia, many of whom practice vehicle accident, medical malpractice, premises liability, and other personal injury litigation. The Association meets once a year, rotating sites with The Homestead in Hot Springs, Virginia, and The Greenbrier in White Sulphur Springs, West Virginia.
The annual convention spans a four-day weekend early each Spring. Members enjoy the wonderful surroundings amid days of continuing legal education (“CLE”).
CLE offerings cover personal injuries such as wrongful death, brain injuries, limb paralysis, and skin burns. Mr. Waterman soon will post new learning from it.
Defendants routinely oppose motions for leave to amend in wrongful death, brain injury and other cases against them. But Virginia courts routinely grant leave, consistent with the liberal mandate of Virginia Supreme Court Rule 1:8.
“Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added). Fifty years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).
Virginia Circuit Courts routinely grant leave to amend to further justice. E.g., Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.
“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. In Mortarino, the circuit court properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.
In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61.
Continue reading " Virginia Amendment: Va. Sup. Ct. Rule 1:8 – a Lawyer’s Motion " »
Virginia defendants may cite Pulte Home, Inc. v. Parex, 265 Va. 518 (2003) for allegedly impermissible conclusory pleading, in hopes of a quick summary dismissal without addressing the merits of a suit. But Pulte Home usually is readily distinguishable on its extreme facts.
In Pulte Home, the plaintiff’s “allegation merely parroted the language of Code §8.2-313, which sets fourth several legal bases for the creation of express warranties, and amounted to no more than a legal conclusion.” 265 Va. at 523 (italics in original). Subsequently, the Virginia Supreme Court rejected a defendant attempting to rely on Pulte Home when taken out of its narrow context. “Here , unlike the pleading in Pulte Home, [plaintiff’s] pleading alleged [facts], rather than merely stating the legal bases.” Hubbard v. Dresser, 271, Va. 117, 123 (2006).
Even if arguendo plaintiffs have not pleaded enough facts, that should not be fatal. Plaintiffs should be granted leave to amend to plead additional facts in support of their theory of liability if they can legitimately. E.g., Altizer v. County of Tazewell, 2008 Va. Cir. LEXIS 13, * 2-5 (Tazewell Jan. 22, 2008)(leave to amend to plead additional facts granted sua sponte).
This is the last of three posts covering duties of care for protection under Virginia law against criminal conduct of third-parties causing wrongful death, brain injury, and other personal injuries. Virginia recognizes (gratuitously) assumed duties of care.
The Virginia Supreme Court recently reaffirmed that one can assume a duty of care when otherwise none would exist. “As the plaintiffs correctly point out, and the defendants do not dispute, we have cited with approval the legal principal that ‘[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all’.” Didato v. Strehler, 262 Va. 617, 628 (2001)(emphasis added)(and cases cited therein). Significantly, Didato held that even if plaintiffs were unable to establish the prevailing medical standard of care (duty) required the defendant doctors to act, i.e., to notify; the defendants having undertaken in fact to notify properly constituted that they “assumed the duty”. Id. at 629.
This is the second in a three-post series covering Virginia legal duties of care to protect against third-party criminal acts resulting in wrongful death, brain injury, and other personal injuries. In Taboada v. Daly Seven, Inc., 271 Va. 313, 327-328 (2006) on reh. 273 Va. 269 (2007), the Virginia Supreme Court held circuit court erred in sustaining a demurrer to an amended motion for judgment predicated on the duty and responsibility of an innkeeper to a “guest” (versus “business invitee”) for injuries sustained in a criminal assault by a third party on the innkeeper’s premises, where the innkeeper was on notice of its guests being in general danger of injury from prior similar criminal acts, making the act in question “reasonably foreseeable” (even though there was no warning in particular about it).
On an “issue of first impression,” the Virginia Supreme Court in Taboada found that innkeeper and guest presented a special relationship with an elevated “duty of ‘utmost care and diligence’ to protect the guest against reasonably foreseeable injury from the criminal conduct of a third party.” 271 Va. at 327. Taboada first observed that a common carrier’s duty of care to passengers was justified “because the passenger entrusts their safety to the carrier,” which his superior knowledge and ability about conditions and dangers. “This imbalance of knowledge and control warrants imposition of a duty on a common carrier ‘to protect its passengers against violence or disorderly conduct on the part of its own agents, or other passengers or strangers, when such violence or misconduct may be reasonably expected and prevented”. Id. at 325.
Taboada then likened common carrier passengers to innkeeper guests to impose the same duty of care.“[T]he guest of an innkeeper entrusts his safety to the innkeeper and has little ability to control his environment. The guest relies upon the innkeeper to make the property safe and the innkeeper’s knowledge of the neighborhood in taking the reasonably necessary precautions to do so. In this regard, it is reasonable for the law to impose upon the innkeeper, as a common carrier, a duty to take reasonable precautions to protect his guests against any injury caused by the criminal conduct on the part of other guests or strangers if the danger of injury by such conduct is known to the innkeeper or reasonably foreseeable.” Id. at 325-326. The Virginia Supreme Court in Taboada delineated that the requisite “notice of a specific danger” equated to the “concept of a reasonably foreseeable danger,” not the heightened degree of foreseeability if an “imminent probability of harm”. Id. at 327 (emphasis added). The plaintiff’s allegations of repeated prior criminal incidents on-premises over a protracted period satisfied the requirement of “notice that its guests were in danger of injury caused by similar criminal acts of third parties”. Id.
Generally, under Virginia law one does not owe another a duty to protect against the criminal acts of another. However, there are special relationships between parties that create duties and consequent liability for wrongful death, brain injury and other personal injuries; as this three-post series explains.
“The general rule applies unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection’.” Marshall v. Winston, 239 Va. 315, 318 (1990). “One who takes charge of a third person whom he knows or should know, to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Id. Also, the Virginia Supreme Court in Marshall held where “some specific harm could be anticipated to [an identifiable] individual,” a public official has a “special duty owed to a special identifiable person,” violation of which “will give rise to civil liability”. Id. at 319.
Holles v. Sunrise Terrace, Inc., 257 Va. 131, 136 (1999)(emphasis added) observed that a special relationship only “provides a right of protection to a plaintiff by a defendant from the criminal acts of third persons that can be reasonably foreseen or anticipated”. Holles also observed that since the defendant was not even the landlord of the victim, “there was no right of protection inherent in their relationship separate and apart from any duties imposed by . . . contract”. Id. at 137.
Significantly, the Virginia Supreme Court in Holles additionally observed: “We have recognized a special relationship between a defendant and a plaintiff in cases involving a common carrier, and its passenger a business proprietor and its invitee, and an innkeeper and its guest.” Id. at 136. The relationship between an assistant principal and his captive students is more closely akin to these special relationships than to a jailer and the general public at large (as in Marshall) or to a limited management Company and a center resident (as in Holles). Moreover, in Holles, the Virginia Supreme Court emphasized that the aforesaid enumerated ones “are not exclusive examples of a special relationship”. Id. at 136 (emphasis added).
This concludes the five-part series on Virginia sovereign immunity pleaded in the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It covers the gross negligence exception, which the victim Plaintiff also was alleged.
In a 2003 school board employee case, the Virginia Supreme Court reversed and remanded the trial court’s judgment that a student plaintiff’s allegation for gross negligence against his football coach was factually insufficient as a matter of law. In Koffman, “gross negligence” was defined as “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” 265 Va. at 15. “Because reasonable persons could disagree on this issue” of alleged gross negligence in the tackling demonstration, the Virginia Supreme Court ruled in Koffman that “a jury issue was present”. Id. at 16.
Even Green v. Ingram, 269 Va. 281, 291-292 (2005), relied upon by the Assistant Principal in Gagnon, found plaintiff raised a jury question on the sovereign immunity issue of gross negligence, noting that the difference between gross negligence and ordinary negligence (versus recklessness willfulness or wantonness) simply was “one of degree” (versus a “matter of kind”). doing absolutely nothing at all after unequivocally assuring that he would alert security for the impending altercation about which he warned and his protection was sought presents a prima facie case of gross negligence to be decided by a jury.
The Assistant Principal in Gagnon claims that “Banks v. Sellers [ 224 Va. 168 (1984)] concerned facts almost identical to the facts alleged in this case”. But the brain injury victim in Gagnon asserts that Banks actually is distinguishable on multiple grounds.
First, Banks was handed down before the seminal opinions of the Virginia Supreme Court in Koffman, Friday-Spivey, Heider, and Lentz, when in general the then-evolving law of sovereign immunity still was not settled completely, when in particular the focus was on the judgment and discretion of the general position versus on the specific wrongful act as it is now. Second, Banks involved the “principal,” not an “assistant principal” as in the matter sub judice. Third, Banks only alleged simple negligence, not gross negligence as in the matter sub judice. Fourth, Banks involved a sharply divided Court, with three dissents and a “concur in result” as the swing vote; times in general and schools in particular unfortunately have changed materially for the worse in the 27 years since Banks was decided, school administration of necessity now routinely involves physical safety measures metal detectors, on-premises security, etc. as in the matter sub judice; and Taboada v. Daly Seven, Inc., 271 Va. 313 (2006) on reh. 273 Va. 269 (2007) calls into question the continuing viability of Banks even on its own facts.
Continue reading " Virginia Sovereign Immunity: Gross Negligence – a Lawyer’s Exception " »
This is the fourth in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It concludes the ministerial act exception to Virginia sovereign immunity.
There are four additional sovereign immunity cases evincing that an individual employee like Defendant, Travis Burns, still is liable for “simple negligence in the performance of a ministerial act”. See, Exhibit A, Jennings v. Hart, No. 3:08CV00028, Memorandum and Order (W.D. Va. Mar. 17, 2009)(Virginia law); Hughes v. Lake Taylor City Hosp., 54 Va. Cir. 239 (Norfolk Dec. 13, 2000); Exhibit B, Fender v. Cendana, No. 96-6844, Op. Letter and Order (Albemarle Jan. 28, 1998); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle Sep. 4, 1991). They are dispositive of Gagnon.
In Jennings this year, sheriff department employees denied medical care to an inmate who ultimately died. Memorandum Op. at 1-3. United States District Court properly focused on the particular act in question (rather than the actor’s general position), principally citing James, and denied the motion to dismiss.
“The doctrine of sovereign immunity applies to acts that are discretionary, but not ministerial, in nature. * * * * The fact that the provision of medical care to Jennings initially involved the exercise of some judgment and discretion, however, does not necessarily mean that the Defendants should be entitled to sovereign immunity. Every act involves the exercise of at least some amount of discretion. See, Memorandum Op. at 5 (underlining added)(italics in original). Judge Moon in Jennings delineated, “Whether a matter is truly committed to the discretion of a government employee is therefore a question of degree and requires a analysis of the circumstances of a particular situation. * * * [W]ell before Jennings was taken to the hospital, the circumstances were such that the Defendants lacked the discretion to keep her at the jail and deny her the opportunity to be seen by a neurologist or other medical professional. Id. at 6. (emphasis added).
In Hughes in 2000, nurses and a therapist misclassified a patient as “DNR” versus “full code” status and failed to arrange her emergency transport as ordered, causing death. 54 Va. Cir. at 239. Norfolk Circuit Court correctly focused on the particular act in question (instead of the actor’s general positions), citing principally James, and overruled their special plea. Id. at 242-244.
Continue reading " Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (III) " »
This is the third in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It continues the ministerial act exception to Virginia sovereign immunity.
Heider and Friday-Spivey have articulated and promoted the ministerial act exception to sovereign immunity, such that it increasingly has gained traction in the circuit courts throughout the Commonwealth. Not surprisingly, much of their progeny are cases about the ministerial act of driving. E.g., Lake, supra (law enforcement officer driving to suspected homicide scene in Prince George); Baker, supra (game warden driving on patrol for potential law breakers in Fauquier); Ferro, supra (social worker driving transport of an upset teenager in Prince William); Howard, supra (dump truck operator driving route in Richmond); Daddio, supra (fire fighter driving to station for fire call in Loudoun); and Diaz, supra (unspecified employee driving in Norfolk). However, various other cases exemplify the breadth of the ministerial act doctrine, including notably in circumstances apparently presenting more arguable judgment and discretion than the matter sub judice. E.g., Ford, supra (Commonwealth doctor leaving gauze in wound); Gray, supra (Commonwealth nurse placing line in wrong blood vessel); Habib, supra (Commonwealth transportation inspectors failing to correct defective roadway); MFC, supra (Commonwealth special agent destroying explosives); and Yassa, supra (City zoning administrator approving plot plan). In Gagnon, the brain injury victim asserts that Defendant Assistant Principal Burns failing to call the security officers as he needed and assured patently is a ministerial act.
In Ford, a 2002 malpractice case, the patient alleged that the defendant Commonwealth doctor negligently left infectious gauze in his hip would by “failing to fully explore the wound to remove foreign objects during dressing changes; by failing to suspect and search for a foreign body when the plaintiff showed signs of infection; and by failing to identify the hip wound as the site of infection”. 58 Va. Cir. at 429. Rappahannock County Circuit Court properly focused on the particular act in question (rather than the actor’s general position), citing James, Messina, and Heider; and overruled the plea in bar.
“While it may be said that providing health care services necessarily involves the exercise of some discretion, such discretion may be so inconsequential as to be of little significance when considering a grant of immunity to the health care provider.” Judge Horne continued in Ford, “the procedure that gave rise to the instant action involves a routine medical procedure. For purposes of the analysis, the Court determines based on the experience of Dr. Danisa, that this was a ministerial act not requiring the exercise of judgment and discretion.” Id. at 331-432.
In Gray, a 1996 malpractice case, Commonwealth nurses allegedly inserted a medication line into the wrongful blood vessel. Richmond Circuit Court properly focused on the particular act in question (instead of the actors’ general positions), considering James and citing Heider.
Continue reading " Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (II) " »
In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, the brain injury victim is contesting the Assistant Principal’s Plea of Sovereign Immunity. One ground for opposition is that the Defendant’s alleged wrongful act is simply ministerial, which continues the five-part series.
Following James v. Jane, 221 Va. 43, 53 (1980) and Messina v. Burden, 228 Va. 301, 313, the Virginia Supreme Court in Lentz v. Morris, 236 Va. 78, 82 (1984)(emphasis added), focused the inquiry on “whether the alleged wrongful act involved the exercise of judgment and discretion” or simply was a ministerial one. Subsequently in First Va., the wrongful act was a Deputy Clerk’s indexing error. The Virginia Supreme Court reversed circuit court sustaining a demurrer, because “the negligence underlying the bank’s claim was malfeasance of a ministerial duty and ther cloak of sovereign immunity does not cover such torts.” 225 Va. at 77.
Again citing James, the Virginia Supreme Court in Heider again focused on the wrongful act and elaborated that some situations present only a “ministerial obligation,” while other instances involve “acts of judgment and discretion;” such that defendant’s claim of sovereign immunity must be scrutinized on the particular facts of the case. “The holding and principle announced fifty years ago in Wynn [v. Grandy, 170 Va. 590 (1938)] remain viable today. While every person driving a car must make myriad decisions, in ordinary driving situations the duty of due care is a ministerial obligation. The defense of sovereign immunity applies only to acts of judgment and discretion which are necessary to the performance of the governmental function itself.In some instances, the operation of an automobile may fall into this category, such as the discretionary judgment involvement in vehicular pursuit by a law enforcement officer. However, under the circumstances of this case, the simple operation of an automobile did not involve special risks arising from the governmental activity, or the exercise of judgment or discretion about the proper means of effectuating the governmental purpose of the driver’s employer. Thus, on the showing here, the trial court properly held that Heider was not entitled to the defense of sovereign immunity.” 241 Va. at 145 (citations omitted). In Heider, a deputy sheriff driving while serving judicial process had collided with a motorcyclist.
The Virginia Supreme Court reaffirmed Heider in Friday-Spivey in 2004, focusing on the wrongful act yet again. In Friday-Spivey, a fire truck operator unsuccessfully sought sovereign immunity for personal injuries caused in responding to rescue a child locked in a car. The defendant unpersuasively cited “as examples of discretion and judgment his determination of the route to be taken and the maneuvering of the 40,000 pound pumper truck through traffic [and] the inherent difficulty and special skills required in operating a specialized piece of equipment”. Id. at 388. “Despite a natural inclination to classify the report of a child in a locked car as an ‘emergency,’ the facts of the case do not support the conclusion that Collier’s driving involved the exercise of judgment and discretion beyond that required for ordinary driving in routine traffic situations. * * * * The special skill and training required to operate a fire truck under these circumstances is not the exercise per se of judgment and discretion for purposes of sovereign immunity.” Id. at 390. The defendant’s “driving was a ministerial act requiring no significant judgment and discretion beyond that of ordinary driving in routine traffic.” Id. Thus, the Virginia Supreme Court concluded in Friday-Spivey that the fire truck operator “did not exercise judgment and discretion beyond that necessary in a ordinary driving situation – a ministerial act. As such, he is not entitled to sovereign immunity for his alleged negligence.” Id. (reversing grant of plea in bar and remanding for further proceedings).
In Virginia, the Commonwealth, counties, cities, towns, school boards, agencies, and sometimes even their employees enjoy sovereign immunity from the wrongful deaths, brain injuries and other personal injuries they cause. Currently an Assistant Principal is claiming sovereign immunity for brain injuries suffered by a student who was attacked at Gloucester High School after the Assistant Principal allegedly was warned of the impending attack, assured he would notify security personnel on premises, and did nothing instead. See, Gregory J. Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court.
This is the first in a five-part series on exceptions to Virginia sovereign immunity. The series will be followed by a related post on duties of school board employees and others.
Virginia law is clear that even if a governmental entity is immune, its employees individually still are liable for simple negligence in the performance of a ministerial act. E.g., Friday-Spivey v. Collier, 268 Va. 384, 388-391 (2004); Heider v. Clemons, 241 Va. 143, 145 (1991); First Va. Bank-Colonial v. Baker, 225 Va. 72, 78 (1983); Lake v. Mitchell, 2008 Va. Cir. LEXIS 118, * 1, 7-8 & 12, (Prince George May 23, 2008)(relied on by Defendant at bar at discovery hearing); Baker v. Miller, 74 Va. Cir. 98, 99-100 (Fauquier Aug. 7, 2007); Ferro v. Shifflett, 72 Va. Cir. 298, 302-303 (Prince William Nov. 29, 2006); Howard v. Streater, 71 Va. Cir. 61 (Richmond Apr. 24, 2006); Ford v. Commonwealth, 58 Va. Cir. 428, 429-431 (Rappahannock Apr. 3, 2002); Daddio v. Ashley, 43 Va. Cir. 283, 285 (Loudon Sep. 3, 1997); Gray v. Commonwealth, 40 Va. Cir. 419, 421-422 (Richmond Oct. 24, 1996); Diaz v. Mendoza, 46 Va. Cir. 491, 493 (Norfolk Aug. 16, 1995); Habib v. Blanchard, 25 Va. Cir. 451, 453-455 (Fairfax Nov. 13, 1991); MFC Partnership v. Foster, 6 Va. Cir. 349, 356-357 (Lee Jul. 16, 1986); and Yassa v. Moore, 3 Va. Cir. 189, 191-192 (Alexandria May 2, 1984). Additionally, it is clear that governmental employees also still are liable for gross negligence in the performance of any act, including one of judgment and discretion. E.g., B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F. Supp. 560, 574 (E.D. Va. 1993) (Virginia law)(school board employee); Koffman v. Garnett, 265 Va. 12, 15 (2003)(school board employee); Verry v. Barry, 72 Va. Cir. 318, 321 (Fairfax Jul. 27, 2006); Kern v. Allee, 2006 Va. Cir. LEXIS 19, * 6-7 (Nelson Feb. 8, 2006)(school board employee); Daddio, supra, 43 Va. Cir. at 286; and Hawkins v. Pinkerton’s, Inc., 42 Va. Cir. 316, 319 (Petersburg May 27, 1997)(cited by Defendant). Cf., Altizer v. County of Tazewell, Va., 2008 Va. Cir. LEXIS 13, * 3-5 (Nelson Feb. 8, 2008).
Plaintiffs in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, are the family of a student who suffered brain injuries. Defendant Assistant Principal additionally seeks to interpose Va Code Ann. §8.01-47.
§8.01-47 immunizes a “principal…who, in good faith with reasonable cause and without malice, acts to report, investigate or cause any investigation” of certain school activity vis-à-vis the “making of such report, investigation or disclosure”. §8.01-47 must be strictly construed because it is in derogation of common law. Morris, supra.
But Gagnon is not an action for slander, libel, invasion of privacy, etc. for “making of such a report, investigation or disclosure,” as contemplated by §8.01-47. §8.01-47 is not applicable to an action for physical personal injuries for not making an investigation and taking action, which is the facts of Gagnon.
