by KPMLAW | Jun 15, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Helen Jhun, Esq. Edited by Bill Pfund, Esq. As the weather warms, schools across Virginia recess for summer. Families throughout the state look forward to a few months of rest, relaxation, and recreation. Along with the fun that comes with recreational activities, there are also specific risks when participating in these activities, especially when children are involved. This article will address some of specific issues that arise in defending these types of claims. Contributory Negligence and Assumption of Risk for Minors Under Virginia law, the defenses of contributory negligence and assumption of risk are complete bars to recovery. However, the considerations differ when the plaintiff is a child. A child under seven years of age is incapable of being contributorily negligent. Atlantic C.L.C. Co. v. Clements , 184 Va. 656, 664-665, 36 S.E. 553, 557 (1946). A child between 7 and 14 is presumed to be incapable of negligence. However, this is a rebuttable presumption, and such a child can be contributorily negligent upon evidence that 1) the child had the capacity to understand the nature and perils associated with his conduct based upon his age, intelligence and experience and that 2) the child’s conduct did not conform to the standard of a reasonable person of the same age, intelligence and experience. Va. Elec. & Power Co. v. Dungee 258 Va. 235, 520 S.E.,2d 164 (1999). A child between the ages of fourteen and eighteen is held to the degree of care which persons of the same age, experience, intelligence, discretion and knowledge would exercise under the circumstances. Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189...
by KPMLAW | Jun 12, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Rachel Riordan, Esq. Edited by Claire Carr, Esq. Animal attack cases are not uncommon events and animal bites often raise interesting compensability questions in workers’ compensation cases. According to the Humane Society of the United States, there are approximately 78.2 million owned dogs in the country and about 40 percent of all households have at least one dog or cat. The United States Department of Agriculture estimates there are over 4,000 bee species in the country and bee allergies are becoming more prevalent. The animal encounter cases from the Virginia Workers’ Compensation Commission include horses, snakes, spiders, ticks, and even a compensable cat attack! When evaluating animal bite cases, it is important to remember that Virginia is an “actual risk” state and not a “positional risk” state. In other words, the mere happening of an accident in the workplace is not compensable unless certain criteria are met. Most significantly, the accident must “arise out of” the employment. There must be a causal connection between the conditions under which the work is required to be performed and the resulting injury. With respect to animal bites, the Virginia Workers’ Compensation Act requires that the injury be fairly traced to the circumstances or environment of the claimant’s employment. Milton v. Gibson Lumber Co., VWC File No. 224-32-58 (Sept. 22, 2006). The employment must expose the claimant to a greater risk than the general public. For example, benefits were awarded in Fuller v. Randolph M. Bailey t/a Wet Pets, 67 O.I.C. 35 (1988), where the employee was working in a pet store and was bitten by a spider, and in Phelps...
by KPMLAW | May 12, 2017 | KPMBlog, News, Profiles, Uncategorized
Pictured Above from left to right… Lee Appleton, Nick Marrone, Joe Smith and Andy Webb. KPM is thrilled to welcome four new attorneys who bring to KPM a wealth of energy and experience. Joe Smith joins the Worker’s Compensation Practice Group in Richmond, while Nick Marrone joins the group in Fairfax serving both Virginia and Maryland. Lee Appleton has joined our General Liability team, and Andy Webb has joined KPM’s Coverage & Fraud division. Please join us in welcoming these great additions to the KPM family....
by KPMLAW | May 11, 2017 | KPMBlog, News, Profiles, Uncategorized
We are delighted to announce that Brian Cafritz, managing partner of KPM’s Retail & Restaurant Litigation Group and Claire Carr, managing partner of KPM’s Workers’ Compensation Practice Group have been selected to the 2017 Virginia Super Lawyers list. Additionally, Rachel Riordan, a partner with KPM, and Andrew Willis, an associate, have both been named to the 2017 list of Virginia Rising Stars! Super Lawyers recognizes no more than five percent of attorneys in the state. Please join us in congratulating our colleagues on this fine...
by KPMLAW | May 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. One of the most common workers’ compensation fact patterns is an employee sustaining any injury in a stairwell or on steps. A recent decision from the Full Commission acts as a primer on adjusting some of the most common step cases in Virginia. The Deputy Commissioner and the Full Commission in Vickers v. E & M Management, LLC, JCN VA00001141682 (March 17, 2017) provide us with some useful practice pointers. In Vickers, the claimant worked as a maintenance supervisor for his employer, and while visiting an apartment complex to perform an inspection, fell as he was descending some stairs. He described the stairway as having risers which were short and a tread which was narrow with a 1½ inch lip that “interfered with descending the steps.” He claimed to have almost fallen down the steps on two previous occasions because they were so narrow. The claimant testified that even with his heel backed all the way against the riser, his foot still hung over the step so that he had to turn his foot a little to the side in order to place his foot on the steps to descend them. On the day of the accident, the claimant had descended three steps when the heel of his right foot hit the front toe of his left foot, causing him to spin around and fall down the remaining twenty steps to the bottom. He testified in his deposition that his left foot had been sticking out over the edge of the step because his feet were so long, but...
by KPMLAW | May 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Author by Chris Bergin, Esq. Edited by Brian A. Cafritz, Esq. A common risk for retails is that one of its products is defective and causes an accident. For example, if a consumer buys a product from a retailer and the product causes a fire, the retailer is sued for personal injuries or property damage due to the breach of the UCC Implied Warranties. Taking this scenario one step further, could a firefighter or emergency responder who is injured by the fire or product recover against the retailer as well? Since at least 1968, the Commonwealth of Virginia has recognized and followed a common law doctrine called the “Fireman’s Rule.” The Fireman’s Rule holds that police officers, firefighters, and other public officials who are engaged in a high-risk activities as a result of their public duties, are not permitted to recover for a defendant’s simple negligence. Thus, for example, if a store or a restaurant negligently causes a fire on its property, it cannot be held civilly liable for any injury or death caused to firefighters who responded to the scene. At first blush, the Fireman’s Rule seems counterintuitive, or even cruel. However, it rests upon the sound legal doctrine of assumption of risk, which is strongly adhered to in Virginia. When a firefighter, for example, responds to an alarm, she is necessarily aware that a fire is in progress and that fire-related hazards are likely to exist. Yet her duty to respond to the fire still exists, in spite of this known danger. The firefighter is duty-bound to respond to the emergency, regardless of whether the emergency was...
