Customer can sue for negligent supervision

Customer Can Sue for Negligent Supervision

By Deborah Elkins
Published: November 8, 2011

Tags: Junius P. Fulton III, Negligence, Norfolk Circuit Court, Tucker Griffin Barnes, Virginia Circuit Courts
 
A Lowe’s customer who alleges she suffered a brain injury when a Lowe’s employee climbed a ladder to retrieve an item and dropped a box on plaintiff customer can sue Lowe’s for negligent training and negligent supervision of its employee, as the Norfolk Circuit Court distinguishes this case from the Virginia Supreme Court decision in C&P Tel. Co. v. Dowdy.

The Supreme Court of Virginia has addressed negligent supervision in the employment context only once, in C&P Tel. Co. v. Dowdy, 235 Va. 55 (1988). There, the court held that in Virginia, there is no duty of reasonable care imposed on an employer in the supervision of its employees under the circumstances there, in which an employee alleged stress he suffered was aggravated by negligent supervision of coworkers. Relying on Dowdy, Virginia circuit courts have consistently declined to recognize a distinct tort of negligent supervision. A number of Virginia courts have similarly declined to recognize a cause of action for negligent training.

Plaintiff argues the present case can be distinguished from Dowdy. Plaintiff also correctly notes that although the number of cases declining to find either a cause of action for negligent supervision or for negligent training is itself persuasive, those cases are not binding on this court. Plaintiff argues the court in Dowdy did not hold there is no duty to supervise an employee – it merely held no duty existed under those circumstances.

The court agrees the circumstances in Dowdy are distinguishable from those at hand. First, in Dowdy, the claim was the employer and plaintiff’s supervisors negligently supervised the plaintiff.

Dowdy did not address whether an employee can be held liable to a third party for negligent supervision of an employee. Here, the claim is that Lowe’s failed to supervise an employee engaged in dangerous activity such that it harmed a third party invitee – not the employee himself. Further, it may be argued the court in Dowdy was really declining to carve out an exception to the tactile tort rule for recovery of emotional distress. Dowdy was attempting to recover for negligent infliction of emotional distress under a theory that his employer had a duty to supervise him. There the court found the conduct was not so wrongful or egregious to allow Dowdy to recover for emotional distress resulting from a non-tactile tort where not physical contact was made by defendant. Here, Hernandez is suing over a tactile injury to her person.

This court would not be alone in permitting a case to proceed on a theory of negligent supervision.

Plaintiff argues the circumstances of this case involve an employer who directs its employees to engage in activity that foreseeably creates a danger of harm to others. Lowe’s directs its employees to climb ladders to reach heavy items on high shelves in the aisles where its customers shop. It is foreseeable that without using ordinary care and skill in directing the employee to engage in such activity, serious and foreseeable harm may befall its customers. The harm alleged to have occurred to plaintiff in this case is probably the most foreseeable harm that could have resulted – a box the employee dropped fell on plaintiff. Lowe’s can directly supervise its employees working in its retail stores. In this case, ordinary care and skill may require a duty of supervision when Lowe’s directs an employee to engage in this dangerous activity.

In conclusion, the Supreme Court of Virginia has not yet recognized a cause of action for negligent supervision or for negligent training. Nor has it completely ruled out such a cause of action under Virginia law. Although only two courts have allowed a case to proceed on such a theory, I am wary of simply following the majority of circuit courts in reliance on Dowdy’s limited ruling. The facts alleged now are quite distinguishable from those in Dowdy and plaintiff’s case may present one for the correct application of the theory of negligent supervision. With respect to negligent training, however, the court will sustain the demurrer with leave to amend.

Hernandez v. Lowe’s Home Centers (Fulton) No. CL 10-8412, Aug. 1, 2011; Norfolk Cir.Ct.; Edward E. Scher, Stephen M. Smith, Jeffrey F. Brooks, Joseph M. Moore for the parties. VLW 011-8-200, 6 pp.

RELATED ARTICLES (VLW 011-8-200)

• 011-8-200 – Hernandez v. Lowe’s Home Centers

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

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County hit with $31.5M lawsuit over school bus incident

$31.5 million suit filed in school bus abuse case

By: Chris Dumond
Published: November 23, 2011

Tag:  Tucker Griffin Barnes  

APPOMATTOX --
 

An Appomattox County boy and his mother filed a $31.5 million lawsuit against the county, the school board and several employees in the wake of a child abuse case.

Last week’s filing comes on the heels of a similar $20 million lawsuit filed against Bedford County Public Schools last month. Both cases involve allegations of abuse against disabled children bused out of their home districts to special-education schools in Lynchburg.

An attorney for Roxanne Haskins and her 10-year-old son filed the lawsuit on Nov. 15. It names Appomattox County, the Appomattox County School Board, Superintendent Dorinda Grasty, Transportation Supervisor Matt Lair and former bus driver Nancy Davis.

The lawsuit claims the boy had been diagnosed with attention deficit/hyperactivity disorder and was selected to attend the Rivermont School in Lynchburg beginning in March. Centra Health operates the school for children with emotional, behavioral and learning difficulties.

The suit continues to allege Haskins’ son was bullied by two older boys almost immediately and the bullying continued over weeks and months, even after Haskins notified Davis and Lair directly. Specifically, on May 5, the suit alleges the two repeatedly assaulted the boy, punching and strangling him and burning him with a cigarette lighter.

Davis, 64, was charged with felony child neglect after an Appomattox County deputy investigated the claims. The older boys, both 15 at the time, were convicted of assault and battery in juvenile and domestic relations court.

Davis was set for a jury trial Monday, which was delayed when the judge had to dismiss so many school division employees that the jury could not be seated.

Judge Marvin Dunkum, who viewed the video in a July preliminary hearing, described it as “just plain, disgusting behavior.”

The video shows Haskins’ son screaming “stop,” and “no,” while the older boys can be seen striking him and cursing him repeatedly. At one point, Davis tells the older boys to leave him alone and separates the children. Later she tells an older boy to sit with Haskins’ son and “make him quiet.”

“These little kids are going to find out they can’t play with the big boys,” she can be heard saying.

In addition to claims of negligence and infliction of emotional distress, the suit claims Grasty, Lair and the school board violated the boy’s civil rights. It claims those who supervised and employed Davis should have investigated Haskins’ complaints and ensured Davis was trained properly to safeguard the children.

The suit notes Davis should have been given an aide as supervisors were fully aware the children on the bus had a history of behavioral problems. Davis’ lawyer, Joseph Sanzone, claimed in an earlier hearing that Appomattox County is the only local division not to provide an aide.

The boy asks for an award of $5 million from the county and $6 million from each of the other defendants for a total of $29 million. Haskins asks for $500,000 from each defendant for a total of $2.5 million.

Lawyers representing the county, school board and its employees declined comment Wednesday. Haskins’ lawyer, Anthony Tacconi of Glen Allen, could not be reached for comment.

The lawsuit in Lynchburg against Bedford County Public Schools was filed last month after a bus driver and aide were captured on video striking a different disabled child on a bus in 2009. The autistic boy was being transported to another school.

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

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Associate Attorney Wanted

Charlottesville craigslist > jobs > legal/paralegal jobs

Associate Attorney (Charlottesville)

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Date: 2011-11-27, 4:14PM EST
Reply to: mgriffin@TGBlaw.com

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ASSOCIATE ATTORNEY POSITION: Tucker Griffin Barnes is seeking a litigation associate to represent clients charged with criminal and traffic offenses, as well as represent clients in domestic relations and other civil litigation matters. Candidates applying for this position must be licensed in Virginia and have one to five years of litigation experience. Please email your resume and cover letter to MGriffin@TGBLaw.com (Mike Griffin, Business Manager, Tucker Griffin Barnes P.C., Charlottesville, VA.)

• Location: Charlottesville
• Compensation: Include compensation requirements in cover letter.
• Principals only. Recruiters, please don't contact this job poster.
• Please, no phone calls about this job!
• Please do not contact job poster about other services, products or commercial interests.

Posting ID: 2723310840

Father can sue lab for 'wrongful birth'

Father can sue lab for ‘wrongful birth’

By Paul Fletcher
Published: November 17, 2011

Tags: Tucker Griffin Barnes, Federal Courts, Judge Norman K. Moon, Medical Malpractice
 


The father of a girl born with a blood disorder can bring a negligence claim against the lab that told him and his wife that the child would not have the disease.

The parents both were unaffected carriers of a genetic defect; there was a one in four chance that any child of theirs would inherit both defective genes, resulting in a condition called Cooley’s anemia. People who suffer from this condition lack a blood protein that maintains iron levels in the body; they must go through frequent blood transfusions.

The wife became pregnant, and the couple underwent genetic testing. They agreed they would have an abortion if the child was affected. But the lab advised the couple that the unborn child would be an unaffected carrier.

After their daughter was born, they discovered she had Cooley’s anemia. At the age of one month, she had her first blood transfusion.

The couple sued in state court, and the defendant, LabCorp, removed the case to federal court in Charlottesville. In Khadim v. Laboratory Corporation of America (VLW 011-3-604), U.S. District Judge Norman K. Moon heard LabCorp’s arguments that the father could not bring a claim. He also considered whether LabCorp was a “health care provider” subject to the damages limits in the Virginia Medical Malpractice Act.

The Supreme Court of Virginia first recognized a negligence claim for “wrongful birth” in 1982 in Naccash v. Burger, 223 Va. 406. The claim allowed damages for emotional distress, creating an exception to the general rule that physical injury is necessary for a distress claim to succeed.

LabCorp sought dismissal of the father’s claim here, arguing among other things, that the man was not their “patient.” Moon observed that the Virginia high court did not limit Naccash to the claims of the mother, using plural terms instead, such as the “parents,” “them” and “they.”

He also looked to a 2001 Supreme Court case, Didato v. Strehler, 262 Va. 617, that had a similar factual pattern: A child was born with a blood condition comparable to that of the girl here. The couple sued, stating they would not have had a baby had they known. Responding to the defense argument that the parents were not “patients,” the high court found a cause of action separate from the doctor-patient relationship, Moon wrote.

In Khadim, Moon said, LabCorp tested genetic material from both parents, even asking for additional samples in an effort to get the most accurate result. He let the man’s claim proceed.

Moon also considered cross-motions of the parties on the issue of whether LabCorp is a “health care provider” under the Virginia Medical Malpractice Act. If so, the company would have the ability to take advantage of the act’s limits on med-mal damages.

The judge said that the act applies: The VMMA covers corporations that employ licensed health care providers and primarily render health care services. He found that definition applies. Also, LabCorp qualified for the act’s protections because it was an independent contractor working for a physician who ordered the genetic testing.

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

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Charlottesville, Virginia

434-973-7474

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Parkway driver wins breathalyzer challenge

Parkway driver wins breathalyzer challenge

November 14th, 2011 · No Comments , Tucker Griffin Barnes,  DUI/TRAFFIC/CRIMINAL

A driver who admitted drinking before watching a race at the Martinsville speedway and who blew a .12 beat a charge of DUI on the Blue Ridge Parkway because the government could not prove the accuracy of the Intox EC/IR II breathalyzer used to test him.

Traffic lawyers with questions about breathalyzer machines have seen some success in state courts in recent years, and the state legislature wrestled with proving breathalyzer reliability in the wake of Melendez-Diaz.

Lawyers looking to challenge the Intox EC/IR II, a newer model in use in state and federal courts, may want to review U.S. v. Foster, a Nov. 4 decision by Roanoke U.S. District Judge Michael F. Urbanski.

David Foster was pulled for speeding on April 3, 2011, after a park ranger’s laser gun clocked him traveling at 50 miles per hour in a 35-mile zone. Foster admitted to the ranger that he and his passenger had been “pre-gaming” before the race, but Foster said he had nothing to drink since the race started.

Foster had no trouble pulling into a parking space but his performance on field sobriety tests was a “mixed bag,” Urbanski said. It was clear he had been drinking, not clear he was impaired.

Urbanski faulted the government for not laying a proper foundation under federal evidence rules for admission of a certificate of instrument accuracy for the Intox EC/IR II breathalyzer. He rejected as insufficient a certificate of instrument accuracy signed by Melissa Kennedy, section supervisor for the Virginia Department of Forensic Science, who certified the machine’s performance as of March 10, 2011.

There was no declaration from the DFS records custodian, or another qualified person, verifying the authenticity of the certificate of accuracy, Urbanski wrote.

The trooper who performed the breathalyzer test could testify about how he administered the test, but he could not vouch for the accuracy of the machine, according to Urbanski. The certificate showing .12 grams per 210 liters of breath could come in, but questions about the accuracy of the machine on the night in question affected the weight of the evidence, the court said.

Foster admitted to drinking earlier in the day. The ranger noted Foster had watery, bloodshot eyes and an odor of alcohol, and he showed some signs of intoxication on field sobriety tests. But there was no evidence to establish how much Foster had to drink and when; his driving was not erratic. He was oriented, focused and able to follow the ranger’s instructions and able to maintain his balance on the dexterity tests.

Calling it “a close case,” Urbanski said the government did not meet its high burden of proof.

By Deborah Elkins

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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No FMLA leave for gambling jaunt

No FMLA leave for Gambling Jaunt

By Deborah Elkins
Published: November 11, 2011

Tags: Civil Procedure, Judge Dennis Dohnal, Tucker Griffin Barnes P.C.

A Verizon employee who was granted intermittent leave under the Family & Medical Leave Act for his depression, migraines and suicidal ideation, cannot sue Verizon for violation of the FMLA for terminating him after verifying that he spent several days of his intermittent leave gambling at an Atlantic City casino, after he had called in sick; the Richmond U.S. District Court Magistrate Judge grants summary judgment for Verizon.

In a preliminary matter raised by plaintiff, he has objected to use of his own deposition transcript in support of defendant’s motion for summary judgment without the court also considering his errata sheet, which was not yet due at the time or oral argument.

The questionable nature of plaintiff’s newly formulated testimony vis-à-vis an errata sheet gives the court pause. There presently exists a split of authority as to how a court should reconcile such conflicting testimony, and disagreement even persists among federal courts sitting in the court’s own state of Virginia.

One series of cases suggests the scope of changes permitted pursuant to Rule 30(e) is essentially boundless. Where such an approach is followed, the opposing party may nevertheless impeach a witness with any contradictory, unpolished statements. That is to say, the conflicting statement is not replaced, and the deponent is instead left with both the original testimony and the errata sheet. The other approach taken by some courts is to simply strike any changes attempting to alter the substance of the deponent’s testimony.

Under certain circumstances, the substantive use of an errata sheet to change the deposition answers is analogous to a “sham” declaration designed solely to defeat summary judgment, especially where such material is submitted after briefing and oral argument on the related motion. The court will take no position on the present state of disagreement among the courts on the issue because, as this court perceives it, neither approach would permit the use of a “sham” errata sheet whose sole apparent purpose is to create a genuine issue of material fact intended to preclude the granting of dispositive relief.

Here, however, it is not entirely clear in any event that plaintiff’s errata sheet contains any material evidence whatsoever. Plaintiff has simply emphasized several of his statements given during the deposition to the effect that he believes his use of FMLA leave had some causal connection to any number of other suspected reasons for his termination. Plaintiff’s stated belief that wrongdoing occurred provides no evidentiary basis to defeat summary judgment. Such an effort is apparently done to undermine plaintiff’s several prior statements by which he theorized defendant terminated his employment for non-FMLA related reasons. While the court will not strike the statements contained in the errata sheet, it also will not permit plaintiff to create a genuine issue of material fact where none previously existed.

The court finds, in essence, that neither the FMLA nor common sense can authorize an employee to, with impunity, enjoy what amounts to a vacation while telling his employer he is sick and incapacitated.

Even if plaintiff’s admitted gambling addiction were related in some way to his qualifying medical conditions, the FMLA would not shield him from personal responsibility while acting upon his addiction. Even assuming that “rest and relaxation” constitute approved FMLA leave, it is indisputable that plaintiff’s August 2009 hiatus went well beyond the scope of such an approved absence. Calling in sick to gamble was an abuse of plaintiff’s approved intermittent leave and, by extension, an abuse of the FMLA.

Summary judgment for employer.

Campbell v. Verizon Va. Inc. (Dohnal) No. 3:11cv2, Sept. 13, 2011; USDC at Richmond, Va. VLW 011-3-522, 23 pp.

• 011-3-522 – Campbell v. Verizon Va. Inc. 

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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Announcing Immediate Job Opening for Real Estate Paralegal

Tucker Griffin Barnes Seeking Real Estate Paralegal (Lake Monticello)


Immediate opening for experienced Real Estate Paralegal at our Lake Monticello Branch office (Located across from Food Lion.) Candidate must be able to demonstrate a current, in-depth background in real estate settlements, from opening a file, working with the lender and realtors, to recording the deed. Experience with Landtech software a plus. Benefits include medical, dental, vision, disability, 401K and mileage reimbursement when recording.

Qualified candidate should email resume with cover letter and salary requirement to MGriffin@TGBlaw.com, ATTN: Mike Griffin, Business Manager, Tucker Griffin Barnes P.C., Attorneys at Law, Charlottesville, VA.

Location: Lake Monticello
Compensation: Include annual salary requirement in cover letter.
Principals only. Recruiters please don't contact this job poster.
Please, no phone calls about this job!
Please do not contact job poster about other services, products or commercial interests.

Customer Can Sue for Negligent Supervision

Customer Can Sue for Negligent Supervision

By Deborah Elkins
Published: November 8, 2011

Tags: Junius P. Fulton III, Negligence, Norfolk Circuit Court, Tucker Griffin Barnes
 
A Lowe’s customer who alleges she suffered a brain injury when a Lowe’s employee climbed a ladder to retrieve an item and dropped a box on plaintiff customer can sue Lowe’s for negligent training and negligent supervision of its employee, as the Norfolk Circuit Court distinguishes this case from the Virginia Supreme Court decision in C&P Tel. Co. v. Dowdy.

The Supreme Court of Virginia has addressed negligent supervision in the employment context only once, in C&P Tel. Co. v. Dowdy, 235 Va. 55 (1988). There, the court held that in Virginia, there is no duty of reasonable care imposed on an employer in the supervision of its employees under the circumstances there, in which an employee alleged stress he suffered was aggravated by negligent supervision of coworkers. Relying on Dowdy, Virginia circuit courts have consistently declined to recognize a distinct tort of negligent supervision. A number of Virginia courts have similarly declined to recognize a cause of action for negligent training.

Plaintiff argues the present case can be distinguished from Dowdy. Plaintiff also correctly notes that although the number of cases declining to find either a cause of action for negligent supervision or for negligent training is itself persuasive, those cases are not binding on this court. Plaintiff argues the court in Dowdy did not hold there is no duty to supervise an employee – it merely held no duty existed under those circumstances.

The court agrees the circumstances in Dowdy are distinguishable from those at hand. First, in Dowdy, the claim was the employer and plaintiff’s supervisors negligently supervised the plaintiff.

Dowdy did not address whether an employee can be held liable to a third party for negligent supervision of an employee. Here, the claim is that Lowe’s failed to supervise an employee engaged in dangerous activity such that it harmed a third party invitee – not the employee himself. Further, it may be argued the court in Dowdy was really declining to carve out an exception to the tactile tort rule for recovery of emotional distress. Dowdy was attempting to recover for negligent infliction of emotional distress under a theory that his employer had a duty to supervise him. There the court found the conduct was not so wrongful or egregious to allow Dowdy to recover for emotional distress resulting from a non-tactile tort where not physical contact was made by defendant. Here, Hernandez is suing over a tactile injury to her person.

This court would not be alone in permitting a case to proceed on a theory of negligent supervision.

Plaintiff argues the circumstances of this case involve an employer who directs its employees to engage in activity that foreseeably creates a danger of harm to others. Lowe’s directs its employees to climb ladders to reach heavy items on high shelves in the aisles where its customers shop. It is foreseeable that without using ordinary care and skill in directing the employee to engage in such activity, serious and foreseeable harm may befall its customers. The harm alleged to have occurred to plaintiff in this case is probably the most foreseeable harm that could have resulted – a box the employee dropped fell on plaintiff. Lowe’s can directly supervise its employees working in its retail stores. In this case, ordinary care and skill may require a duty of supervision when Lowe’s directs an employee to engage in this dangerous activity.

In conclusion, the Supreme Court of Virginia has not yet recognized a cause of action for negligent supervision or for negligent training. Nor has it completely ruled out such a cause of action under Virginia law. Although only two courts have allowed a case to proceed on such a theory, I am wary of simply following the majority of circuit courts in reliance on Dowdy’s limited ruling. The facts alleged now are quite distinguishable from those in Dowdy and plaintiff’s case may present one for the correct application of the theory of negligent supervision. With respect to negligent training, however, the court will sustain the demurrer with leave to amend.

Hernandez v. Lowe’s Home Centers (Fulton) No. CL 10-8412, Aug. 1, 2011; Norfolk Cir.Ct.; Edward E. Scher, Stephen M. Smith, Jeffrey F. Brooks, Joseph M. Moore for the parties. VLW 011-8-200, 6 pp.

RELATED ARTICLES (VLW 011-8-200)

• 011-8-200 – Hernandez v. Lowe’s Home Centers

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Inquire@TGBlaw.com

http://www.tgblaw.com/

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