TT&H eNotes: Liability – April 2018

TT&H LAWYERS IN COURT

R. Bradley Peiffer wins arbitration action stemming from alleged improper maintenance of automobile.

In an action concerning damage to a truck’s engine, TT&H Attorney R. Bradley Peiffer won a defense verdict at arbitration for an automobile repair shop. After Plaintiff brought his truck to Defendant shop, Defendant pulled spark plugs and discovered a failed helicoil. Defendant advised Plaintiff new cylinder heads were needed for the truck to operate properly. Plaintiff ignored this advice and demanded reinstallation of the removed spark plugs. Plaintiff continued to drive the vehicle, neglecting the recommended repair. Two days later, Plaintiff returned to Defendant-repair shop with engine problems, at which time he was again advised of the need for new cylinder heads. Plaintiff again failed to heed the advice. Four days later, Plaintiff brought his truck to another shop, where an engine replacement was performed.

Plaintiff filed an action against Defendant-repair shop alleging negligence for the reinstallation of the spark plugs during his initial visit. At arbitration, Attorney Peiffer obtained a defense verdict.

Questions about this case can be directed towards R. Bradley Peiffer, at (717) 237-7106 or bpeiffer@tthlaw.com.

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TT&H SPEAKING OUT

On March 13, 2018, TT&H Attorney Collin Shannon spoke at the Portsmouth Claims Association meeting in Portsmouth, VA on insurance fraud. For additional information, please contact Collin Shannon, at (202) 945-9504 or cshannon@tthlaw.com.

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CLIENT ADVISORY

VIRGINIA CLIENT ADVISORY

Virginia 2018 Legislative Preview

Virginia’s legislative body, the General Assembly, began this year’s legislative session on January 10, 2018. Over 2000 bills have been introduced between the two houses of the General Assembly. The year 2018 has been a relatively slow year for legislation directly affecting the property and casualty insurance industry. The following bills are of particular interest to those in the property and casualty insurance industry.

Senate Bill 246

This bill amends Va. Code § 38.2-1817, removing the exemption for those persons awarded the designation of Chartered Property and Casualty Underwriter from the examination requirements for a property and casualty insurance license or a personal lines license. It will grandfather qualified licensees as long as their licenses are not terminated. The measure also (i) requires licensed resident public adjuster entities to meet the same bonding requirements ($50,000) as public adjuster entities and (ii) adds manager, member, or partner to those individuals that may be considered a designated licensed producer for an agency. In effect, this bill increases the entry requirements for new adjusters and agencies, while also broadening the class of people who are eligible for licensing if they comply.

Senate Bill 542

This bill amends a number of code sections concerning domestic surplus line insurers. It establishes criteria for the licensing by the State Corporation Commission of domestic surplus line insurers. The bill provides that policies issued by a domestic surplus line insurer are subject to the same taxes and maintenance assessments levied upon surplus line policies issued by eligible non-admitted insurers, if the Commonwealth is the home state of the insured. Policies issued by a domestic surplus line insurers are not subject to protections provided by the Virginia Property and Casualty Insurance Guaranty Association.

The bill exempts policies issued by a domestic surplus line insurers from all statutory requirements relating to insurance rating plans, policy forms, policy cancellation and nonrenewal, and premium charged to the insured in the same manner and to the same extent as a non-admitted insurer domiciled in another state. The measure provides that a domestic surplus line insurer is only authorized to write the types of insurance in the Commonwealth that a surplus line broker may procure with a non-admitted insurer approved by the Commission.

Questions about this advisory can be directed to Collin Shannon, at (202) 945-9504 or cshannon@tthlaw.com.

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SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Cagey v. Commw. of Pa., Dept. of Transp.

• Pennsylvania Supreme Court
• No. 36 WAP 2016
• Decided: February 21, 2018

Penn DOT’s immunity waived when dangerous “ boxing glove” guardrails are affixed to Commonwealth realty.

Background

After encountering snow and ice on a State highway, Mrs. Cagey lost control of her car, spun off the road, and hit a guardrail. The guardrail penetrated the side of the vehicle and caused her serious injuries. Her husband claimed loss of consortium. The Cageys claimed, among other matters, that the guardrail was erected within an area that vehicles should have been able to traverse safely and that the guardrail was not “crashworthy” due to its “boxing glove” like end where the guardrail terminated and curved away from the travelled portion of the roadway. Penn DOT filed a motion for judgment on the pleadings arguing that it was immune from suit as the cause of action did not fall within an enumerated exceptions to sovereign Immunity. The Trial Court granted Penn DOT’s motion. The Cageys appealed to Commonwealth Court which affirmed.. The Supreme Court then granted the Cageys’ Petition for Allocatur.

Holding

The Supreme Court used the “plain language of the statute” in interpreting its meaning and held that in order for the “real estate exception” to sovereign immunity to apply three requirements must be met: (1)the injury must have resulted from a “dangerous condition”; (2) the “dangerous condition must be a condition “of Commonwealth agency real estate”; and (3) the damages must be recoverable under common law as “if the injury were caused by a person not having available the defense of sovereign immunity.” The Court held that the Cageys had alleged sufficient facts to meet the requirements and reversed the entry of judgment on the pleadings. In doing so, the Court rejected Penn DOT’s argument that the erection of the guardrail must make travel “on the roadway” dangerous.

The concurring opinion of Justice Wecht suggested that the Supreme Court should revisit its decision in cases where an injury occurs when a guardrail has not been erected. According to Justice Wecht, to hold otherwise “creates a perverse incentive for the Commonwealth to forgo the installation of guardrails entirely . . . even when they are obviously necessary to highway safety.”

Questions about this case can be directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

Danganan v. Guardian Prot. Servs.

• Pennsylvania Supreme Court
• No. 36 WAP 2017
• Decided: February 21, 2018

Supreme Court holds non-PA resident was permitted to bring UTPCPL claims against PA businesses based on out-of-state transactions.

Background

Plaintiff Danaganan contracted with Guardian Protection Services, a Pennsylvania-headquartered company, to install a home security system in his Washington, D.C. home. After Danaganan moved and cancelled his contract, Guardian continued to charge him based upon provisions of the contract. Danaganan brought a class-action claim against Guardian in the Philadelphia Court of Common Pleas, asserting claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) and the case was removed to the Federal District Court for the Western District of Pennsylvania. The Western District held that the UTPCPL did not apply to the transaction because it involved an out-of-state Plaintiff in a transaction that occurred out of state. Plaintiff appealed to the Third Circuit, which sought certification to the Pennsylvania Supreme Court to resolve questions about the scope of application of the UTPCPL.

Holding

The Pennsylvania Supreme Court holds that the UTPCPL applies to non-resident Plaintiffs in claims against Pennsylvania businesses, even if the transaction occurred outside of Pennsylvania. The Supreme Court holds that “the plain language definitions of ‘person’, ‘trade’ and ‘commerce’ evidence no geographic limitation or residency requirement. The Supreme Court concludes that the UTPCPL’s underlying purpose as remedial legislation and its liberal interpretation demonstrate that the law is intended to protect non-residents.

Questions about this case can be directed to Eric Horst, at (215) 564-2928 ext. 8506, or ehorst@tthlaw.com.

Commonwealth v. Mangel

• Pennsylvania Superior Court
• 2018 Pa. Super. 57
• Decided: March 15, 2018

Pennsylvania Superior Court rules that social media posts are inadmissible unless direct or circumstantial evidence is presented to corroborate the identity of the author of the communication.

Background

In this criminal case, the Commonwealth sought to introduce screenshots of certain pages of a Defendant’s Facebook account consisting of undated chat messages and a photograph. At a hearing to authenticate the evidence, the Commonwealth presented the testimony of computer forensics expert, Detective Styn. Detective Styn testified that the screenshots provided by the Commonwealth “should be the same” as the Facebook account she found for Defendant because both accounts bore Defendant’s name, hometown and high school. The Trial Court found that this evidence was insufficient to authenticate that Defendant was the author of the Facebook communications.

Holding

On appeal, the Superior Court upheld the Trial Court’s ruling on the basis that the Commonwealth presented no direct or circumstantial evidence substantiating that Defendant created the Facebook account, authored the chat messages, or posted the photograph. The mere fact that an electronic communication appears to originate from a certain person’s social media account is generally insufficient to authenticate that person as the author. In forming its conclusion, the Court relied on past cases that decided issues of electronic authentication, such as Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. Ct. 2011) (authentication of cell phone text messages); In the Interest of F.P., 878 A.2d 91, 96 (Pa. Super. Ct. 2005) (instant messages); and United States v. Brown, 834 F.3d 403 (3d Cir. 2016) (Facebook chat logs). According to the Court, the proponent of social media evidence must present direct or circumstantial evidence to corroborate the identity of the author of the communication, such as testimony from the person who sent or received the communication, or contextual clues revealing the identity of the sender.

Questions about this case can be directed to Jolee Bovender, at (717) 255-7626 or jmbovender@tthlaw.com.

Melkir Capital, LP v. Erie Ins. Exch.

• Pennsylvania Superior Court
• No. 302 WDA 2017
• Decided: March 7, 2018

Summary judgment for insurer in declaratory judgment action vacated, with Trial Court to consider whether area adjacent to parking lot where sinkhole occurred could be considered a “walk” that triggers coverage.

Background

Plaintiff’s property, insured by Erie, suffered a sinkhole in an area adjacent to the property’s parking lot. Plaintiff filed a claim with Erie to recover for losses, which was denied. Plaintiff filed a complaint in declaratory judgment, seeking to determine whether its policy covered this sinkhole losses. Both parties filed motions for summary judgment. Plaintiff argued that the area adjacent to the parking lot where the collapse occurred was essentially a “walk” which was covered by the Extensions of Coverage section of the policy. That provision permitted coverage for loss to “fences, walks, unattached outbuildings, tennis courts, and inground swimming pools . . . .” Erie responded that the term “walk” suggested an area defined as an area for walking, rather than the grassy area adjacent to the parking lot where the sinkhole occurred that was not specifically meant for walking. The Trial Court granted Erie’s Motion. Plaintiff appealed and specifically asked the Superior Court to consider whether “walks” or “walkways” as it defined the location of the sinkhole, was covered by the policy.

Holding

The Superior Court vacated the Trial Court’s Order and remanded the case to require the Trial Court to determine in the first instance if the sinkhole formed in a “walk” as contemplated under the Extension of Coverage provision, and if so, whether the policy covered such a loss.

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or jmorrison@tthlaw.com.

Kodenkandeth v. McNabb

• Pennsylvania Superior Court
• No. 377 WDA 2017
• Decided: February 27, 2018

Pennsylvania Superior Court upholds summary judgment in favor of Defendants in retail theft case involving claims of false imprisonment, negligence and constitutional rights.

Background

Plaintiff was grocery shopping at Defendant’s store, Shop ‘n Save, when a security officer observed him placing some groceries in his cart and others inside a reusable shopping bag. While checking out, Plaintiff only paid for the items in his shopping cart and not those in the reusable bag. The security guard restrained Plaintiff on suspicion of retail theft. Plaintiff was placed under arrest by the police, cited for retail theft, and released. Plaintiff was convicted of retail theft before the magisterial district judge, but the case was later dismissed when the security officer failed to appear at the hearing. Plaintiff then filed a complaint against the owner of the grocery store, McNabb, and the owners of the building and land upon which the store is situated, the Sorbaras. The security guard’s employer, YVSS, was later added as an Additional Defendant.

The Complaint lodged claims of false imprisonment, negligence, and violations of Plaintiff’s constitutional rights. Defendants filed Motions for summary judgment, all of which were granted. On appeal, Plaintiff argued that the Sorbaras were not landlords out of possession, and thus liable for his injuries, and also argued that McNabb and YVSS were not entitled to immunity pursuant to the Retail Theft Act. This Act provides that a merchant who has probable cause to believe a person has committed retail theft may detain such person for a reasonable time and in a reasonable manner. Finally, Plaintiff contended that Defendants were state actors for purposes of his constitutional claims.

Holding

The Court upheld the Trial Court’s entry of summary judgment for each Defendant. First, the Court held that the Sorbaras were landlords out of possession, and, as such, not liable. The Court further found that McNabb and YVSS were entitled to immunity under the Retail Theft Act because they qualified as “merchants.” The Court also upheld the Trial Court’s finding that the security guard had probable cause for the detention and that it was reasonable in both manner and time. Finally, the Court found that the Defendants were not state actors for purposes of the constitutional claims.

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or jdenicola@tthlaw.com.

Hung v. Parkway Corp.

• Pennsylvania Superior Court
• No. 3728 EDA 2016
• Decided: February 21, 2018

Superior Court affirms summary Judgment for Defendant under hills and ridges doctrine where general slippery conditions prevailed in the area.

Background

Plaintiff left her home around 7:00 a.m. to go to work and arrived at the corner of Arch and 8th Streets at around 8:00 a.m., where she fell on an ice-covered sidewalk. The undisputed evidence revealed that the ambient temperature had been just below or around freezing in the hours before and during Plaintiff’s fall, with prior and ongoing light precipitation in the form of rain/freezing rain. Plaintiff was carrying an umbrella at the time. Although there was no ice or snow along Plaintiff’s route, or on the street surface, there was ice on exposed surfaces in some parts of the City. Plaintiff fell on a smooth, mirror-like ice, not on an accumulated hill or ridge of snow and ice.

The Trial Court concluded that Plaintiff could not recover because the circumstances constituted “general icy conditions” for purposes of the hills and ridges doctrine.

Holding

On appeal, Plaintiff claimed disputed issues of fact concerning whether there were generally slippery conditions and whether the Court erred in determining that her claim was barred by the doctrine of hills and ridges. The Superior Court, in affirming the summary judgment, noted that the “hills and ridges” doctrine protects an owner from liability for generally slippery conditions resulting from ice and snow if the owner has not permitted the ice and snow to accumulate unreasonably into ridges and elevations. The Court further noted that it would have been unreasonable to expect the landowner to alleviate the icy conditions given the undisputed facts about the temperature and precipitation conditions prevailing in the community before and at the time of the Plaintiff’s fall.

Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.

MARYLAND CASE SUMMARIES

Johnson v. State of Maryland

• Maryland Court of Appeals
• September Term 2017, No. 6
• Decided: February 21, 2018

Data from a GPS device retained by Defendant’s employer as a business record is admissible without the need for expert testimony.

Background

Ms. K was in her car and was struck by a MTA bus. MTA police officer Johnson responded and instructed her to not drive her vehicle. Instead, he drove Ms. K to her home. Ms. K reported that Officer Johnson raped her in her home; her DNA was subsequently found on Officer Johnson’s penis. At the officer’s criminal trial, the State introduced into evidence a report from a GPS tracking device that MTA police officers carry detailing Officer Johnson’s location and movements on the night of the incident to corroborate Ms. K’s testimony about the sequence of events. The report and data contained therein are maintained by the MTA police as business records and introduced during the testimony from a member of the MTA police. After his conviction, Officer Johnson appealed arguing that the GPS data was not admissible without expert testimony. The Court of Special Appeals affirmed the conviction and the Court of Appeals granted Officer Johnson’s writ of certiorari.

Holding

The Court of Appeals held that the GPS data from a business record was admissible without the need for expert testimony to explain the operation of and science underlying GPS devices. The Court reasoned that expert testimony is admissible if the court determines that the testimony will assist the trier of fact to understand the evidence or determine a fact in issue. The general public relies on GPS devices and is aware about the information that the device conveys as well as its limitations, much like commonly used devices such as clocks, scales, and thermometers. Courts regularly admit business records through witnesses, without experts about things such as computer generated reports about electronic ankle monitoring, employee card access, hotel key cards, and troll transponders. The business records associated with these devices are reliable and admissible.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 or rcollins@tthlaw.com.

Harvey v. City Homes, Inc.

• Maryland Court of Special Appeals
• September Term, 2013, No. 1232
• Decided: March 7, 2018

The mere reference in a release to a case caption of a Complaint does not limit the subject matter of a general release of all mankind to that action.

Background

William Harvey sued City Homes and Barry Mankowitz (collectively, City Homes), in the Circuit Court for Baltimore City, alleging that he sustained injuries from ingesting lead-based paint at an apartment owned and managed by City Homes. City Homes filed a third-party complaint against Everton Realty, Berman Investment, Mid-Atlantic Realty Management, Inc., Steven L. Berman, and Jack W. Stallof (collectively, Everton). City Homes alleged that Harvey was exposed to lead paint while residing at a property owned and managed by Everton, and denied that Harvey was exposed to lead paint at City Homes’ property. In fact, when Harvey was a child he and his mother brought suit against Everton for lead paint exposure. The suit settled and Harvey signed a Release. Everton filed a motion to dismiss based on the argument that the suit was barred by the release. City Homes also moved to dismiss. Both motions were granted and Harvey appealed.

Holding

On appeal, the issue was whether the Circuit Court erred by granting the Defendants’ motions to dismiss on the basis that Harvey’s claims against Everton and/or City Homes were prohibited by the 1999 Release. The Court of Special Appeals agreed that Harvey suffered a single injury for which he alleged that Everton and City Homes were both liable. The Court explained that under the broad language of the Release, City Homes is released as a joint tortfeasor alleged to be liable for the same indivisible injury in a subsequent action. Therefore, it held that the Circuit Court’s decision to dismiss Everton and City Homes was proper.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.

NEW JERSEY CASE SUMMARIES

Lee v. Brown

• New Jersey Supreme Court
• 2018 N.J. Lexis 237
• Decided: February 21, 2018

Absolute immunity applies to a municipality and its employees where the critical causative conduct is a failure to enforce the law.

Background

On June 30, 2010, a tragic fire occurred in the City of Paterson, which consumed a multi-unit home owned by Florence Brown. The fire claimed the lives of four residents and injured several others who were trying to escape. On January 9, 2010, the Paterson Fire Department responded to the Brown multi-unit home to investigate a smoking boiler. The Fire Department found improper wiring in the electrical panels in the basement and notified the City’s electrical department for further investigation. The next day, the City’s electrical inspector, Robert Bierals, inspected the panels and determine the wiring did not comply with the building code. Defendant Bierals photographed the wiring, told Defendant Brown the wiring was extremely dangerous, and issued a Notice of Violation and Order to Terminate. On April 23, 2010, the Defendant City sent a Notice and Order of Penalty to Defendant Brown.

On May 20, 2010, Defendant Bierals returned to the property to re-inspect the wiring. Defendant Brown told Defendant Bierals that the wiring was not addressed. Defendant Bierals then told Defendant Brown to hire an electrician and have the wiring repaired within two weeks. Following the visit, rather than contacting his direct supervisor about the code violation (which he testified constituted an imminent danger) and recommending a shut-off, Defendant Bierals contacted Francine Ragucci, an employee of the City Community Improvement Department, showing her the photographs and telling her something had to be done. Defendant Bierals explained that he did not contact his supervisor about the Brown home because of a conflict between the two in the past relating to a recommended shut-off.

After the filing of litigation against them, Defendants City and Bierals moved on multiple occasions for summary judgment on the ground of immunity. The Trial Court found, and the Appellate Division affirmed, that Defendant Beirals’ actions constituted enforcement of the law and, as such, he was only entitled to qualified immunity. Defendants City and Bierals appealed.

Holding

The Supreme Court reversed the Appellate Court’s decision, citing Bombace v. City of Newark, 125 N.J. 361, 593 A.2d 335, which stated “[the] application of the absolute immunity under the N.J. Tort Claims Act is determined by whether the critical causative conduct by government employees consists of non-action or the failure to act with respect to the enforcement of the law.” The critical causative conduct in this case was Bierals’ failure to contact his direct supervisor and secure an emergency power shut-off or to seek relief in court, not any affirmative action to enforce the law. The fire was alleged to have been caused by the faulty wiring on the electrical panels – not the result of any corrective action taken by Bierals. The Court further noted that the victims of the fire had at least a principal wrongdoer from whom to seek redress.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmamounas@tthlaw.com.

Estate of Yearby v. Middlesex County

• New Jersey Superior Court, Appellate Division
• No. A-2477-16T2
• Decided: February 27, 2018

In medical malpractice action, affidavit of merit was out of time and no exceptional circumstances were found, despite argument of substantial compliance by new Plaintiff counsel.

Background

Defendant nurses appealed a Trial Court order reinstating the counts against them in the Estate’s action claiming malpractice. Estate sued public entities and their employees after a mentally ill man died strapped in a “restraint chair” in a correctional facility after he was arrested for assault. The deceased was under the care of the nurses while in the restraint chair. The nurses were dismissed with prejudice from the action based on Plaintiffs’ failure to file a timely affidavit of merit (AOM). Plaintiffs’ substitute counsel moved to restore the dismissed counts based on the doctrine of “substantial compliance” due to “extraordinary circumstances”, and the Trial Court granted the motion. The nurses argued the Trial Court erred in finding that plaintiffs established grounds to warrant relief from the time restrictions in N.J.S.A. 2A:53A-27. Defendant nurses received an AOM 107 days after the maximum period to file an AOM.

Holding

Trial Court was found to have erred in finding “substantial compliance” because the record revealed that Plaintiffs’ original counsel took no steps to comply with the mandatory time frame, provided no explanation for his failure and did not even respond to the nurses’ motion to dismiss. Additionally, Plaintiffs’ substitute counsel waited nearly two months to take any action to address the problem and an undisputed pattern of inattentiveness showed that there was no basis for an “extraordinary circumstances” exception. Of note, this decision has been approved for publication.

Questions about this case can be directed to Mark Sander, at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

Ames v. Lipschultz

• New Jersey Superior Court, Appellate Division
• No. A-0290-16T1
• Decided: February 16, 2018

Superior Court affirms Trial Court’s entry of summary judgment on basis that Plaintiff failed to produce expert testimony that Defendant deviated from the standard of care.

Background

Plaintiff Ames, injured his right shoulder while in the course and scope of his employment as a UPS driver. After the incident, Ames was under the care of Defendant, Dr. Lipschultz. Ames underwent surgery to repair the rotator cuff tear and during the rehabilitation process at Defendant Rehab Excellence Center, Ames, on Rehab’s instructions, lifted weights in excess of the weight limitations and beyond the range of motion restrictions. Ames underwent an additional surgery on the right shoulder as he complained of stiffness. Ames commenced a professional negligence action against Rehab alleging that the aggressive treatment was the cause of the injuries.

The Trial Court granted Rehab’s summary judgment motion and concluded that Ames failed to produce an expert report opining that Rehab’s deviation from the standard of care was the proximate case of the injuries suffered. The Trial Court noted that merely having an expert who opines that Rehab deviated from the standard of care is not enough to prove Ames’ theory. Testimony of treating physician or expert who connects the deviation of Rehab exceeding weight and range of motion restrictions to Ames’ injuries is required.

Holding

The Superior Court affirmed the Trial Court’s granting of Rehab’s motion for summary judgment. Despite Ames producing an expert report from Dr. Pepe, the Court held that the absence of an explanation by Dr. Pepe of how, and in what manner, the overly aggressive physical therapy caused Ames’ injuries left an irreparable void in Ames’ case. Absent that opinion, the Court noted Ames could not prove the essential elements of his case.

Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or mbishop@tthlaw.com.

DC CASE SUMMARY

Casey v. McDonald’s Corp.

• United States Court of Appeals for the District of Columbia
• No. 16-7124
• Decided: January 26, 2018

Businesses that serve visibly intoxicated customers who later cause injuries may be held liable without a showing of foreseeability.

Background

Plaintiffs, the parents of a man killed during a drunken altercation outside a McDonald’s, filed suit against a number of parties, including the two bars that served him, and the McDonald’s outside of which he died. The issues before the Court were whether the two bars who served Ward, the man who killed the Plaintiff’s son, could be held liable under a negligence per se argument, and whether McDonald’s owed any duties to the Plaintiff’s son. The District Court originally dismissed the claims against the bars and McDonald’s for failure to state facts to support proximate cause. The Court pointed to a trio of prior cases which indicate that pursuant to DC public policy, a bar or restaurant may be liable for injuries caused by a drunk person after he leaves the bar if he was visibly intoxicated when served, a lower standard than is typical for DC tort cases involving intervening criminal acts.

Holding

The Court overruled the District Court and permitted the action against the bars to proceed. The Court did not, however address the level of visible impairment which puts bars on notice of their duty not to serve a patron. As for the claimed duties owed by McDonald’s, the Court found that the Plaintiff had failed to prove the existence of any national standards which required any of the duties they alleged. As such, the Court agreed with the District Court’s determination that McDonald’s was entitled to summary judgment.

Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or cshannon@tthlaw.com.

VIRGINIA CASE SUMMARY

The Robert and Bertha Robinson Family, LLC v. Allen

• Virginia Supreme Court
• No. 161640
• Decided: March 1, 2018

A losing counterclaim filed in the General District Courts is not automatically appealed to the Circuit Court because the losing complaint is appealed.

Background

This case began as a landlord-tenant dispute between The Robert and Bertha Robinson Family (landlord) and the tenants. The tenants had a five year written lease, and then remained for an additional four years before moving out. The landlord filed suit claiming that the written lease required double rent for hold-over tenants, and that the tenants also owed money to repair the apartment back to pre-lease condition. Tenants in turn filed a counterclaim for their safety deposit. The Court ruled against both parties, so the landlord filed an appeal to the Circuit Court. Tenants did not file an appeal, and asserted that their counterclaim was appealed when the landlord appealed by “piggybacking” onto the landlord’s appeal.

Holding

The Court ruled against the tenants. It noted that the right of appeal is statutory, and thus, unless otherwise stated in the Virginia Code, no party has an automatic right to de novo review. The Court rejected the notion that a defendant that is satisfied in its victorious claim could lose its judgment by being involuntarily dragged into an appeal by a losing co-defendant. The Court further noted that the same code section requires an appeal bond, and to allow involuntary appeal would create appeal where parties could avoid posting an appeal bond. The Court also found that the tenants’ counterclaim did not arise out of the landlord’s appeal, such that their proffered interpretation did not make sense. Lastly, the Court held that de novo review refers to the nature of review, not the scope, and therefore the Circuit Court did not need to review a claim not properly before it in order to properly consider the landlord’s appeal.

Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or cshannon@tthlaw.com.