Virginia: Brain Injury – a Lawyer’s Retrial
On April 20, 2012, the Virginia Supreme Court opined “we reverse in part and remand the case to the circuit court for a new trial limited to Gagnon’s gross negligence claim against Burns” in Mr. Waterman’s brain injury appeal, Burns v. Gagnon, 2012 Va. LEXIS 93, *35 (Apr. 20, 2012). It held that “the circuit court erred in refusing to instruct the jury on gross negligence” vis-à-vis sovereign immunity under common law, as had been requested by Mr. Waterman. Id. at *28.
“Upon receiving Diaz’ report [that ‘Gagnon was going to get into a fight sometime that day’], Burns wrote down Gagnon’s name, and said he would ‘alert security,’ that ‘he would look into it,’ and that he would ‘take care of it’, noted the Burns/Gagnon crime victim opinion. “In our view, the fact that Burns did not respond to Diaz’ report – or at least did not respond in time to stop the fight – could possibly lead a jury to conclude that he acted in ‘utter disregard of prudence amounting to a complete neglect of [Gagnon’s] safety,’ and thus was grossly negligent,” concluded the Supreme Court of Virginia. Id. (emphasis added).
As a legal predicate, the Virginia Supreme Court found that “Burns owed a duty to supervise and care for Gagnon” and that Burns is “liable if he failed to ‘discharge his…duties as a reasonable prudent person would under the circumstances’.” Id. at *16 (emphasis added). “By law, Gagnon’s parents had to send Gagnon to school, where it was the responsibility of Burns and other school officials to supervise and ensure that ‘students could…have an education in an atmosphere conducive to learning, free of disruption, and threat to person,’” observed the Burns/Gagnon brain injury opinion. Id. (emphasis added).
Also, the Virginia Supreme Court rejected Burns’ attempts to exclude the pivotal testimony of Shannon Diaz against him, which was taken in the initial brain injury suit against Burns. Id. at *28-35. Burns/Gagnon held that Diaz was unavailable for trial in person; that his de bene esse deposition was taken in a previous “action involving the same subject matter” and “between the same parties”; and that Diaz’ affidavit clearly was used for “the sole purpose of refreshing his recollection,” and Diaz’ statements to which Burns objected “were either not hearsay or [were] admissible under a well-established exception to the rule against hearsay”. Id.
Additionally, the Virginia Supreme Court found that Burns did not have any statutory immunity for Gagnon’s brain injuries. Burns/Gagnon explained that Va. Code Ann. §8.01-220.1:2(A) applies only to “teachers,” not “principals”; and that Va. Code Ann. §8.01-220.1:2(B) applies to someone’s “good faith reporting,” not someone who “failed to respond to such a report.” Id. at *19-23.
Burns/Gagnon did not reach Gagnon’s cross-appeal on joint and several liability because of retrial on Gagnon’s gross negligence claim. Id. at *35. Finally, Justice Mims cogently dissented as to sovereign immunity under common law in the brain injury appeal opinion. Id. at *36-37.