Author: Brian Cafritz, Esq. By law, most states require restaurants or retailers to provide suitable restrooms for its guests. But which guest is permitted to use which restroom is becoming an issue that restaurants and retailers must ask themselves to avoid legal action related to discrimination or privacy violations. If your guest is transgender, what obligation does the restaurant or retailer have to provide a facility for that guest? What duty does the business have to protect its other guests from what may be an invasion of privacy? What should the business’ employees do when speaking to the transgender guest to resolve any confusion? While the issues of transgender equality, anti-discrimination, and privacy are currently focused on state-run government properties, public restrooms found in Retail and Restaurant establishments must take notice. Absent legislative enactment, what is a restaurant or retailer to do? The easy answer for restaurants and retailers is that single occupancy restrooms are preferred and should be made gender neutral. Indeed, this is legislated in some jurisdictions already (See the District of Columbia). For buildings that only have multiple occupancy restrooms, they can often be easily retrofitted for more privacy. Urinary dividers and/or stall doors and walls can be extended from ceiling to floor. Regardless of the physical layout of the restroom, employees of restaurants and retailers should be trained on handling this sensitive issue. The best practice is to allow guests to use restrooms of their sexual identification, rather than biologic gender. Employees should not openly prevent guests from using a restroom consistent with the guest’s sexual identity. Moreover, under no circumstances, should the employee take...
Author: Helen Jhun, Esq. Editor: Janeen Koch, Esq. The issues of negligence and liability in two-vehicle rear-end motor vehicle accidents are generally straight forward. Under long established Virginia law, there is a rebuttable presumption of negligence against a driver who rear-ends a lawfully stopped vehicle. Edlow v. Arnold, 243 Va. 345, 415 S.E.2d 436 (1992), Garnot v. Johnson, 239 Va. 81, 387 S.E.2d 473 (1990). However, defending multiple vehicle rear-end accidents is unique. The issue of causation and assigning the negligence and liability to the different vehicles involved is often in dispute. Specifically, the defenses of third party negligence and contributory negligence are often asserted in rebutting the presumption of negligence against the rear-ending vehicle in “chain reaction” accidents. In the case of Maroulis v. Elliott, 207 Va. 503, 151 S.E.2d 339 (1966), the Supreme Court of Virginia discusses the issues of third party negligence and superseding causation as defenses in a multiple vehicle rear-end accident. In the Maroulis case, Defendant Maroulis was the fourth vehicle in a seven vehicle caravan. The lead car swerved left to avoid another vehicle, driving toward him in the wrong direction. The vehicle driving in the wrong direction collided head on with the second vehicle in the caravan. The third vehicle in the caravan swerved and braked, avoiding a collision with the second vehicle. Maroulis then collided with the third vehicle, and then plowed into the second vehicle. At trial, Maroulis asserted the defense of unforeseeable, intervening negligence, arguing that the negligence of the car driving in the wrong direction cut off his own negligence. The trial jury found against Maroulis. On appeal,...
Chip Kalbaugh, Esq., President Welcome 2016! KPM LAW celebrated the holidays with a team building event to benefit tuition-free Saint Andrew’s Episcopal School in Richmond. The school, alma mater to Shareholder and Partner Francie Belton Georges, provides kindergarten through fifth grade students a private, Christian-based education and is part of the church’s mission to serve Richmond-area families with limited resources. Assembling the firm’s Richmond attorneys and staff just before Christmas, Georges led the team in exercises that required collaboration, creativity, and good sportsmanship, and ultimately resulted in the construction of six brand new bicycles that were donated to St. Andrew’s school physical education program. With KPM’s donation, the school has grown its bicycle fleet from 12 to 18… enough for an entire class to participate on two wheels and aid the school in it’s intent to teach every child – including those without the resources to own a bike or a safe place to ride one – to ride a bike. Having built this firm one hand-picked attorney at a time over the last 25 years, we have had the opportunity to cultivate a group of people whom we respect not only for their professional strengths, but who we genuinely like. It’s exercises like this that remind me we’ve built a firm of more than good attorneys; These are good people, doing good things, and having a good time together. Wishing you all that and more in...
Author: Chris Bergin, Esq. Editor: Brian Cafritz, Esq. In today’s specialized society, hiring independent contractors is a necessity. As demonstrated in the recent September 2015 Virginia circuit court decision, Cherry v. Palace on Plume St., how one executes the master-servant relationship is a key issue that directly impacts one’s liability. The widely accepted general rule is that employers are vicariously liable for the torts of their employees, but not for the torts of their independent contractors. In today’s environment where road rage, random violence, and binge drinking are commonplace, business owners have a greater burden to provide a safe haven for its patrons. Using independent contractors to perform security service allows the premises owner the benefit of security services, but greatly limits his risk of liability for any torts the independent contractor might commit while performing those services—assault, battery, false imprisonment, and negligence, to name a few. Hiring an independent contractor, however, is not a panacea. A business can still be held vicariously liable for the torts of its independent contractors when certain factors exist. Those factors include scenarios where the independent contractor was hired to conduct work that was: (1) unlawful, (2) a nuisance, (3) inherently dangerous, or (4) likely to produce injury “in the natural course of events,” unless special precautions were taken. Fortunately, the Supreme Court of Virginia has held that security guard work generally does not fall into any of these categories. See Broaddus v. Standard Drug Co., 211 Va. 645, 179 S.E.2d 497 (1971). Yet another boon for the restaurant and retail owner. However, the court may find that the contractor’s negligence is imputed...
Managing Partner of KPM LAW’s Coverage & Fraud division, Gary Reinhardt considers Coverage implications following a Biohazard on an insured’s premises in this episode of...
The issues of negligence and liability in two-vehicle rear-end motor vehicle accidents are generally straight forward. Under long established Virginia law, there is a rebuttable presumption of negligence against a driver who rear-ends a lawfully stopped vehicle. Edlow v. Arnold, 243 Va. 345, 415 S.E.2d 436 (1992), Garnot v. Johnson, 239 Va. 81, 387 S.E.2d 473 (1990). However, defending multiple vehicle rear-end accidents is unique. The issue of causation and assigning the negligence and liability to the different vehicles involved is often in dispute. Specifically, the defenses of third party negligence and contributory negligence are often asserted in rebutting the presumption of negligence against the rear-ending vehicle in “chain reaction” accidents. In the case of Maroulis v. Elliott, 207 Va. 503, 151 S.E.2d 339 (1966), the Supreme Court of Virginia discusses the issues of third party negligence and superseding causation as defenses in a multiple vehicle rear-end accident. In the Maroulis case, Defendant Maroulis was the fourth vehicle in a seven vehicle caravan. The lead car swerved left to avoid another vehicle, driving toward him in the wrong direction. The vehicle driving in the wrong direction collided head on with the second vehicle in the caravan. The third vehicle in the caravan swerved and braked, avoiding a collision with the second vehicle. Maroulis then collided with the third vehicle, and then plowed into the second vehicle. At trial, Maroulis asserted the defense of unforeseeable, intervening negligence, arguing that the negligence of the car driving in the wrong direction cut off his own negligence. The trial jury found against Maroulis. On appeal, the Supreme Court upheld the jury’s finding, ruling...
What should an employer do when an employee announces plans to retire on a definite date? Get the employee a gold watch? Plan a luncheon? Maybe the best answer, at least from a workers’ compensation perspective, is to bid him adieu, immediately. A nightmarish situation can develop if an employee announces his retirement to be effective on a definite date in the future, and then gets injured on the job. This factual scenario was recently addressed by the Supreme Court of Virginia in McKeller v. Northrop Grumman Shipbuilding, Inc. , 2015 Va. Lexis 14. In McKellar, on April 1, 2010 the Claimant advised his employer that he was retiring effective May 1, 2010. On April 15, 2010 the Claimant sustained a compensable injury by accident. The Claimant was placed on restricted duty through the end of April. He retired on May 1, 2010. However, sometime after his retirement the Claimant was found to be totally disabled. The Claimant then filed a claim with the Virginia Workers’ Compensation Commission, seeking temporary total disability benefits. The Deputy Commissioner awarded compensation and medical benefits, finding that although the Claimant was retired his total incapacity entitled him to benefits. The Full Commission, in a 2-1 decision, affirmed the award of medical benefits but reversed the award of compensation, reasoning that the wage loss would have occurred regardless of his compensable injury. The Court of Appeals affirmed the decision from the Commission, concluding that the Claimant’s retirement, not his injury, caused his loss of compensation because the record was devoid of evidence that the Claimant sought or held income-producing employment after his retirement and...
When Kalbaugh, Pfund & Messersmith, PC started in January of 1990 with just two lawyers in a small Richmond office, using rented desks and borrowed computers, we never could have imagined the level of support the corporate and insurance defense world would show us over the next 25 years. Growth to four strategically located offices made us the first defense firm with statewide presence while a progressive atmosphere allowed us to attract top level legal talent. Aside from protecting your good name and corporate brand in the court systems every day, in time, we expanded our services to include litigation and claims management on a national and regional basis. It’s been a remarkable 25-year journey that has led KPM LAW to the place it is today – a firm with an unparalleled commitment to the field and a belief system that drives success for our clients, and continued growth for our dedicated...
Drones are in the air and in the news. This technology currently outpaces many of our standard coverage forms. Gary Reinhardt, Esq. and Managing Partner of KPM LAW’s Coverage & Fraud Department discusses the main concerns insurers are facing when interpreting coverage for this expanding technology. For instance, standard homeowners’ and CGL policies contain an auto and aircraft exclusion. This prevents coverage for the ownership, maintenance, use or entrustment to others of any aircraft owned, operated by, rented by or loaned to an insured. This exclusion even applies if the allegations pertain to improper or negligent supervision. Is a drone really an aircraft? ISO, for instance, recently defined “aircraft” although the endorsement is not common. This definition says that an aircraft is anything not used for carrying passengers or cargo, except for model or hobby aircraft. This exception in the definition may avoid the aircraft exclusion for the homeowner using a drone; just as an “occurrence” with a model or hobby aircraft might result in coverage. However, if the drone is camera-equipped and used in a manner that invades the privacy of someone or results in “personal injury” (as opposed to “bodily injury”), a more difficult discussion arises. Intentional act exclusions and the implications of privacy invasion must be studied to determine coverage for the homeowner. A commercially used drone may not fall within the exception as the drone may not fit the categorization of “model” or “hobby.” Because of this, many carriers are drafting specific drone insurance. Others are trying to fit drone liability issues into the CGL by drafting endorsements. These policies and endorsements address the auto/aircraft...
The Board of Directors of NRRDA (National Retail and Restaurant Defense Association) created the Brian Cafritz Presidential Award to honor Brian’s “dedication, integrity and efforts in guiding the creation of NRRDA.” The award was presented for the first time in Austin, Texas on February 13, 2015 to Brian, and will be presented annually to honor outstanding and exceptional service to NRRDA. Brian joined KPM LAW in 1993 and serves as Managing Partner of the firm’s Restaurant and Retail division. He is heavily invested in this sector and defends the brand of many Fortune 500 companies as well as managing their regional litigation. NRRDA was founded in 2007 creating an industry-wide network and educational community for professionals dedicated to the defense of claims in the Retail and Restaurant industry. Brian was one of NRRDA’s primary founders and was elected its inaugural President, ultimately serving two terms. Under Brian’s leadership NRRDA grew to over 500 members across the nation and is widely recognized as the industry leader. Since completing his term as NRRDA’s president, Brian continues to sit on the Past Presidents Committee, the Board of Directors, and other committees. “What Brian has done with NRRDA is nothing short of phenomenal,” said KPM LAW’s President Chip Kalbaugh. “Having the vision to help create this influential organization, and the drive to see it through, defines Brian’s character and client dedication. Brian is a worthy standard bearer of NRRDA, and this sector, and KPM LAW is pleased to continue our support as one of its flagship firms.”...
