by KPMLAW | Nov 19, 2018 | KPMBlog, News, Profiles, Uncategorized
by Rachel L. Stewart, Esq. Edited by Brian A. Cafritz, Esq. There is possibly no clearer evidence of how an accident happened than that of video. While many retail and restaurants utilize video to deter theft or other possible criminal activity in their establishments, the retention of store video footage is often the source of many fights in litigation. Plaintiff’s counsel often attempt to use an establishment’s surveillance video in support of their case, and if it is not preserved, argue that the failure to preserve such evidence justifies spoliation instructions to the jury. Below we discuss how to protect yourselves from such claims and how our knowledge and experience with such issues and applicable law can help you. If your establishment utilizes video surveillance cameras, it is important to establish a procedure for securing such video if an incident occurs in your store or restaurant. While a camera may not have actually been located in the vicinity of the area where an incident occurred, plaintiff’s often believe there was a camera due to observation of fake or dummy cameras and will later make a claim that the retailer or restaurant failed to preserve such evidence. Accordingly, when an incident occurs, if no camera actually captured the incident, a record should be made that video surveillance of the incident was not captured, and if a fake or dummy camera is located near the incident, it should also be noted to avoid potential claims of destruction or failure to preserve. This is especially helpful if the plaintiff does not file a lawsuit for several years given the applicable statute of...
by KPMLAW | Nov 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Andy Webb Edited by Gary Reinhardt, Esq. Conventional legal wisdom holds that an owner of a wild animal is strictly liable for injuries caused by that animal. Stated another way, “A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, his land or chattels, although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm.” Section 507 of the Restatement (Second) of Torts. This rule stems from the idea that, despite taking reasonable and proper precautions, the owner of a wild animal is “exposing the community to the risk of a very dangerous thing” by owning the wild animal and by “engaging in an activity that subjects those in the vicinity, including those who come onto his property to an abnormal risk . . . [t]he possessor of a wild animal is strictly liable for physical harm done to the person of another.” W. Prosser & W. Keeton, Torts (5th ed. 1984). Despite this “[v]enerable common law principle[],” a decades-old Virginia Supreme Court case instructs Virginia courts to take a more nuanced and case-by-case analysis when examining liability stemming from the ownership of a wild animal. The Court examined the issue of keeping wild animals, and injuries caused therefrom, in Panorama Resort v. Nichols. 165 Va. 289, 182 S.E. 235 (1935). Panorama Resort was a hotel and resort on Skyline Drive in Page County, Virginia. The resort kept three bears caged on its property and “encouraged [the resort’s] guests and the general public to feed soft...
by KPMLAW | Nov 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Brian A. Cafritz Security in a retail establishment is a double-edged sword. Stores have to balance the best way to protect its customers and property from wrongdoers, but at the same time, not be too aggressive in executing that plan. One common means of offering security is to hire off-duty police officers. Frequently, off duty police officers will wear their state issued uniforms, badges, and firearms while working at the stores. Their “official” presence in the store sometimes blurs the line of whether their conduct is imputed to the store. In the recent case of Chris Blevins v. Cabela’s Wholesale, Inc., (Case No. 1:18CV00002), Judge James Jones of the Western District of Virginia examined the potential liability the store may face for the conduct of the off-duty officers. In Blevins, a customer shopping in a Cabela’s store was suspected of shoplifting by two security guards. Both guards were off-duty Bristol, Virginia police officers who wore their uniforms, badges and firearms while patrolling the store. There was no-off duty employment agreement between Cabela’s and the City of Bristol. Plaintiff alleged in his Complaint that while working at Cabela’s, the officers were subject to Cabela’s instruction, management and control, and they were to follow Cabela’s orders as to whether or not to detain suspected shoplifters or ban them from the store. As Blevins shopped in the store, the guards began following him. The guards notified Cabela’s plain-clothed asset protection employee that they believed Blevins had concealed ammunition. As Blevins walked outside the store, the officers grabbed him, advised him that he was under arrest for shoplifting, and instructed him...
by KPMLAW | Sep 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Brian Cafritz, Esq. Businesses can control many factors on their property, but they cannot control the weather or alter the laws of physics. Water freezes at 32°F. Ice is slippery. Everybody knows the basic facts of the physical properties of water and ice. Among attorneys, there’s another equally well-known fact: Whenever a plaintiff slips and falls on ice—whether it is in a parking lot, a sidewalk, near a spigot or fountain or anywhere else—she will almost always argue that the defendant should have known of the condition because it was foreseeable that water would turn to ice and create a slip hazard. The Fourth Circuit Court of Appeals, however, has just ruled that knowing water freezes is not enough to establish foreseeability. In the case of Thomas v. Omni Hotels, 2018 U.S. App. LEXIS 21459 *; 2018 WL 3689248 (4th Cir. August 2, 2018), an Omni Hotel guest slipped and fell on a 22° Fahrenheit day after ice had formed on the floor near a semi-enclosed fountain. The Plaintiff argued that the ice must have formed from water blown out of the fountain by the wind. At the trial court level, the US District Court granted defendant’s summary judgment motion, and held that the Plaintiff had failed to create a genuine dispute of material fact as to whether Omni had actual or constructive notice of icy conditions or water escaping from the fountain. On appeal, the Fourth Circuit affirmed the District Court’s dismissal. Despite the higher duty of care placed upon an innkeeper, Virginia law still required the Plaintiff to show actual or constructive knowledge of the unsafe condition. In this case, there...
by KPMLAW | Sep 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Joe Smith, Esq. Edited by Rachel Riordan, Esq. It is common for claimants to request workers’ compensation benefits after being involved in motor vehicle accidents. As in all claims, the motor vehicle accident must “arise out of” the employment to be found compensable. Motor vehicle accidents that happen on public roadways may be found to arise out of the employment subject to the “actual risk test.” Mktg. Profiles, Inc. v. Hill, 17 Va. App. 431, 434-35, 437 S.E.2d 727, 729-730 (1993). Under the actual risk test, it is the claimant’s burden to prove that the accident arose from an actual risk caused by his presence on the street. Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 730, 607 S.E.2d 730, 732 (2005) (citation omitted). So what happens if a claimant is injured in a motor vehicle accident after falling asleep at the wheel? This question was recently considered by the Full Commission in Norris v. ETEC Mechanical Corporation, JCN: VA00001317384 (June 25, 2018). In Norris, the claimant was involved in a motor vehicle accident while driving home in a company vehicle at the end of the day. He was 200 yards from his home when he ran off the road and struck a tree. He suffered severe injuries to multiple body parts as a result of the accident. It was undisputed that the claimant ran off the road because he fell asleep at the wheel. It was also undisputed that he was in the course of his employment because the employer provided the means of transportation to and from his home. The claimant testified that...
by KPMLAW | Sep 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by SK Stahling, Esq. Edited by Bill Pfund, Esq. You may remember that KPM’s own Bill Pfund authored this article in March 2017 discussing Virginia’s Equine Liability Act, § 3.2-6200 et seq. At that time, very few Virginia courts had analyzed the breadth or scope of the Act. Earlier this summer, Rockbridge Circuit Court applied the Act in Paz v. Layman and determined that the scope of immunity may not be as broad as the General Assembly intended. To recap, the Virginia Equine Liability Act says that no person shall be liable for an injury to or the death of another resulting from the intrinsic dangers of equine activities and that no participant shall have a claim against another person for injury or death of the participant resulting from these intrinsic dangers. The Act goes on to define those things which are included “equine activity” – this list includes “rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor,” which could arguably include horse-drawn carriage rides. Important to the most recent opinion, the Act further defines an “equine activity sponsor” as “any person or his agent who, for profit or not for profit, sponsors, organizes, or provides the facilities for an equine activity . . . and operators, instructors, and promoters of equine facilities, including stables, clubhouses, ponyride strings, fairs, and arenas where the activity is held.” In Paz v. Layman, the plaintiffs allege personal injury as a result of a carriage trip gone haywire. Allegedly, an employee of the Virginia Horse & Carriage Co., which...
