Virginia Injury Attorney Blog

Halloween! It is a time for fun, particularly for young children. It also is a time for safety, particularly with young children.

Parental vigilance assures that young trick-o-treaters do not become crime victims. Older children playing serious pranks, unsavory residents giving tampered snacks, and other unexpected mischief unfortunately are ghoulish specters.

But vehicle accidents loom as greater haunts. Adult supervision, well-fitting attire and lighting devices help protect young kids darting into traffic, tripping on roadways, etc.

Also, costumes should be flame resistant, especially when young ones will be around fireworks, candles, fires, and other combustibles. If a store-bought costume proves not to be flame resistant, a burn victim may have a defective products claim against the manufacturer and seller.

Finally, alcohol, drugs, and other intoxicants do not mix well with youngsters needing supervision. All too often substance abuse transforms good celebration into wrongful death.

On October 29, 2010, Mr. Waterman escorts his youngest daughter, Elizabeth T. Waterman, to the black-tie Gala Reception and Banquet of The John Marshall Foundation in Richmond, Virginia. There its 3rd John Marshall Medal in Law is awarded to the Honorable Harry I. Carrico, former Chief Justice and current Senior Justice of the Supreme Court of Virginia.

The John Marshall Foundation sponsors educational and public interest programs and activities, as well as supports site preservation, related to Virginian John Marshall, the first Chief Justice of the Supreme Court of the United States. The Foundation is on the web at johnmarshallfoundation.org.

Coincidentally, October 29th is Mr. Waterman’s 53rd birthday. His daughter and he round out their celebration during October 30th-31st, attending Family Weekend at Virginia Tech, where his youngest son, Christian T. Waterman, is a freshman.

Virginia’s Child Restraints law, Va. Code Ann. 46.2-1095(A), protects children under 8 years old in vehicle accidents. It requires all drivers to ensure that children 7 years of age or younger be provided with and properly secured in a child restraint device – a so-called “safety seat” – approved by the United States Department of Transportation. That safety seat must be placed in the rear passenger seat; or if there is no back seat, in the front passenger seat only if it does not have an operational side airbag.

Section 46.2-1095(B) of Virginia’s Child Restraint law also protects older minors in vehicle accidents. It requires all drivers to ensure that children over 7 and under 18 years of age are provided with and properly secured by an appropriate safety belt system consisting of lap belts, shoulder harnesses, combinations thereof, or similar devices.

The Journal of the Virginia Trial Lawyers Association for Fall 2010 features “Virginia’s new amendment to UIM statute will benefit clients”. Effective July 1, 2010, an amendment to Virginia’s Uninsured Motorist Coverage statute, Va. Code Ann.§38.2-2206(L), gives underinsured motorist (“UIM”) policy providers much-needed financial incentive to do the right thing for vehicle accident victims.

Historically, UIM carriers have refused to negotiate with and pay vehicle accident victims reasonably without forcing them to trial. Now, after the primary liability carrier has tendered its policy limits, a resistant UIM carrier automatically assumes full responsibility for the attorney’s fees and all other costs of defending the case thereafter.

On post-trial motion in the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, Virginia, the Defendant Assistant Principal unsuccessfully sought reversal of the jury’s finding of contributory negligence against him. Defendant Burns relied on a trio of VEPCO. Kelly v. VEPCO, 238 Va. 32 (1989); Smith v. VEPCO, 204 Va. 128 (1963); and VEPCO v. Wright, 170 Va. 442 (1938).

But those VEPCO cases uniquely were suspectible to judgment on contributory negligence being rendered as a matter of law by the Court. That is because the danger of electricity is a matter of common knowledge to all and especially because there were no material facts in dispute.

Those VEPCO cases were readily distinguishable. E.g., Bedford v. Zimmerman, 262 Va. 81 (2001); Love v. Schmidt, 239 Va. 357 (1990)(reversed and final judgment); and Cromer v. Johnson Village, L.L.C., 68 Va. Cir. 442 (Sep. 2, 2005 Charlottesville). Contrary to Defendant Burns’ incredible assertion that there was “no conflict in the evidence” in Gagnon; the material facts were hotly disputed at trial, the jury clearly found the brain injury Plaintiff’s account most credible, and a court is not free to substitute its judgment instead under the circumstances.

For example, the contemporaneous witness statements of Charles Buchanan and Defendant James Newsome himself along with the trial testimony of Buchanan, Ronnie Miller and Plaintiff show the brain injury victim simply going about his business at lunch, declaring a misunderstanding, refusing to fight, not fighting, and not even swearing. That does not constitute negligence as a matter of law in Gagnon.

For waiver at trial, defense counsel has cited Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 168 (1993) and Hilton v. Fayen, 196 Va. 860, 867 (1955). But Hilton simply holds that “a party cannot complain of an instruction given at his instance,” and that parties cannot question a verdict where they “asked for and have induced the court to give an instruction upon a given theory of the law,” id. at 866-867; and Wright holds that a party clearly maintaining a litigation position as a matter of substance does not waive it by not objecting to adverse jury instruction as a matter of “form”. 245 Va. at 168.

Moreover, Va. Code Ann. 8.01-384 was amended materially in 1970, 1977 and 1992; after Hilton and before Wright. 8.01-384(A) provides in pertinent part “it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action the court therefore;” and that: “No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again to preserve his right to appeal, challenge, or more for reconsideration of, a ruling, order, or action of the court.”

The progeny of Wright and 8.01-384(A) are legion. Where appellate courts have found no waiver, they have affirmed and rendered final judgment, e.g., WJLA-TV v. Levin, 264 Va. 140 (2002); Rozario v. Commonwealth, 50 Va. App. 142 (2007); Croxton v. Commonwealth, 2005 Va. App. LEXIS 166 (2005); and Princiotto v. Gorrell, 42 Va. App. 253 (2004); reversed and rendered final judgment, e.g., Nationwide Mutual Ins. Co. v. Housing Opportunities Made Equal, Inc., 259 Va. 8 (2000); Gen. Ins. of Roanoke, Inc. v. Page, 250 Va. 409 (1995); The Pinkerton Tobacco Co. v. Melton, 246 Va. 356 (1993); and Kingrey v. Hill, 245 Va. 76 (1993); or reversed and remanded. E.g., McMinn v. Rounds, 267 Va. 277 (2004); King v. Commonwealth, 264 Va. 576 (2002); Chawla v. Burgerbusters, Inc., 255 Va. 616 (1998); Stuarts Draft Shopping Ctr., L.P. v. S-D Associates, 251 Va. 483 (1996); Luckett v. Jennings, 246 Va. 303 (1993); McManus v. Neuschulz, 2002 Va. App. LEXIS 695 (2002); Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (2001); Brown v. Commonwealth, 23 Va. App. (1996), aff’d on reh’g en banc, 25 Va. App. 171 (1997); and Griffin v. Sprouse, 18 Va. App. 859, rev’d on other grounds 250 Va. 46 (1995).

During October 14-17, 2010, Mr. Waterman attends the Fall Retreat of the Southern Trial Lawyers Association (“STLA”). This year its legal conference is in Charleston, South Carolina at the grand Charleston Place Hotel.

Membership in STLA is by nomination and approval of its Board of Directors. Mr. Waterman is 1 of 30-plus Virginia members and has been a member over a decade.

STLA’s mission is to promote fellowship, learning, and networking among trial lawyers throughout 13 states. They are Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

STLA is on web at southerntriallawyers.com. Membership, history, event, and other current information is posted.

On October 13, 2010, the Daily Press headlined “Judge upholds verdict” and subtitled “Defendants are liable for $5 million in damages to student”. It covers Mr. Waterman’s jury award in the brain injury trial of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

The Daily Press article recounted how at hearing in Gagnon on October 4, 2010, the Judge: (1) denied Defendant Burns’ post-trial motions; (2) upheld the jury awards of $1,250,000.00 against Assistant Principal Burns, $3,250,000.00 against James S. Newsome, Jr., and $500,000.00 against Christine D. Newsome, with more than $1,100,000.00 in pre-judgment interest on those principal amounts collectively; (3) awarded an additional $4,857.90 in Court costs against all Defendants jointly; and (4) ruled that to appeal Defendant Burns must post a bond of $1,700,000.00 and James Newsome must post a bond of $4,000,000.00. The Gloucester County School Board has met in closed session, presumably at least in part about how to proceed in this brain injury case.

The Defendant Assistant Principal opposed the imposition of joint and several liability against him at post-trial motions hearing in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. But in so doing, Defendant Burns misstated the applicable negligence law.

He cited Finley, Inc. v. Waddell, 207 Va. 602 (1996) and Panther Coal Co. v. Looney, 185 Va. 758 (1946) ostensibly for the proposition that all tortfeasors acting independently versus in concert only are liable separately for brain injury. But Defendant Burns failed to disclose in Gagnon that Finley and Panther are “nuisance,” not “negligence,” cases.

Finley actually distinguishes between “nuisance” and “negligence”. “The torts of nuisance and negligence are distinct and differ in their nature and consequences. And the rules which have been formulated by the courts for determining joint liability for nuisance are not the same as those applicable to negligence. Joint liability for negligence may be imposed even though there is no concert of action between the joint tortfeasors and even though it is impossible to determine in what proportions each contributed to the injury. But in nuisance cases, joint liability depends upon whether there is concert of action between the joint contributors, unless the independent act of the one sought to be held is sufficient to cause the whole loss.” 207 Va. at 610-611.

Panther too delineates the same special “nuisance,” not “negligence,” formulation. 185 Va. at 770. To the same effect is Pillis v. Nash, 2 Va. Cir. 377, 380-381 (Jul. 16, 1973 Richmond)(quoting Finley).

Conversely, Gagnon is a “negligence” case of brain injury. Hence Defendant Burns’ citation of “nuisance” law is irrelevant and misleading.

Sullivan v. Robertson Drug Co., Inc., 273 Va. 84 (2007), a contribution action, reaffirms the application of joint and several liability in “negligence” cases like Gagnon. “If separate and independent acts of negligence of two parties directly cause a single indivisible injury to a third person, either or both wrongdoers are responsible for the whole injury. Thus, in determining the liability of a person whose concurrent negligence results in such an injury, comparative degrees of negligence shall not be considered and both wrongdoers are equally liable irrespective whether one may have contributed in greater degree to the injury.” Id. at 92.

Moreover, Sullivan concluded that inviting the jury to apportion damages between Defendants is erroneous. “We also conclude that the circuit court erred in giving Instruction O. This instruction was erroneous because it directed the jury to apportion damages based on the joint tortfeasors’ relative degrees of negligence. By improperly directing the jury to compare the negligence of the wrongdoers, Instruction O violated the established principle that comparative degrees of negligence are not to be considered in determining the liability of persons whose concurrent negligence results in an injury. Id. at 93.

In October, 2010, Mr. Waterman was recognized by The American Trial Lawyers Association (“ATLA”) as one of the Top 100 Trial Lawyers in Virginia. He is part of ATLA’s inaugural class, as this is the first year that lawyers were selected by it.

ATLA and its entire membership of the Top 100 Trial Lawyers nationally is on the web at theatla.com. This year, ATLA is hosting continuing legal education conferences in Orlando, Las Vegas, and Napa.

On October 5, 2010, WAVY-TV Channel 10 featured on its evening news a special brain injury presentation at Carver Elementary School and Crittenden Middle School in Newport News that day. Mr. Waterman and the Virginia Trial Lawyers Association (“VTLA”) co-sponsored a pair of so-called Bike Helmet Programs, which gave the estimated 500 fifth and sixth graders in attendance free helmets for bicycling, skate-boarding, etc.

The main speakers at Carver and Crittenden were Dr. Paul Aravich of Eastern Virginia Medical School and Officer A.J. Matthews of the Newport News Police Department. VTLA, Mr. Waterman, Dr. Aravich and Officer Matthews emphasized that prevention – notably, always wearing a helmet – was the best protection against brain injury for children.

Dailypress.com had publicized the brain injury program shortly before the presentation. It headlined “Newport News students to learn about brains, get means to protect them,” recognizing Mr. Waterman as a co-donor with VTLA.

Afterward on October 5th wavy.com, the online publication of WAVY-TV 10, likewise covered the brain injury presentation. It headlined “Brain safety program for students” and subtitled “Some Newport News students get free helmets”.

On October 4, 2010, post-trial motions were heard in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. Notably, the 7 issues raised by the Defendant Assistant Principal did not include any dispute about the amount of the $6,100,000.00+ jury verdict.

In Gagnon, the Judge summarily denied the Defendant Assistant Principal’s Motion for Reconsideration of Plea in Bar and Motion for Entry of Judgment in Favor of Defendant Burns Notwithstanding Verdict, upholding the jury verdict in favor of Plaintiff against all Defendants. After extended oral argument, the Judge also denied Plaintiff's Motion for Judgment of Joint and Several Liability against Joint Tortfeasor Defendants, holding that the jury award for the brain injury victim against each Defendant was separate.

Also after argument, the Judge in Gagnon granted in part and denied in part Plaintiff's Motion for Recovery of Costs, awarding $4,856.90 to the brain injury victim. Those awarded costs included a filing fee of $202.00, all trial subpoena service fees of $411.00, court reporter fees of $813.76 for de bene esse deposition of out-of-state witnesses, and (progressively) additional court reporter fees of $3,430.14 for trial appearance.

Additionally, the Gagnon Judge ordered that to appeal Assistant Principal William Robert Travis Burns and James S. Newsome, Jr. have to post bonds of $1,700,000.00 and $4,000,000.00, respectively. But the Judge declined to order an appeal bond for Christine D. Newsome, since she filed a Chapter 7 Petition for Bankruptcy in the Eastern District of Virginia on October 1, 2010, for discharge of her debt to the brain injury victim.

Details remain in the Gagnon brain injury case about bond requirements, order drafting, etc. So there will be another hearing on November 9, 2010.