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Civil Practice – Nonsuit – New Allegations – Tort/Negligence – Slip & Fall – Handicap Ramp Condition

Where plaintiff nonsuited his original case in which he alleged that defendant restaurant was “negligent in failing to recognize the danger that then and there existed, in failing to repair and/or maintain” a handicap ramp in good repair, and in failing to notify plaintiff business invitee of this danger, but in his subsequent motion for judgment, filed after the statute of limitations had run on the original cause, plaintiff alleged a claim for per se negligence based on the lack of building permit for and improper construction of the handicap ramp, the second motion for judgment improperly alleges a new cause of action, and the suit is dismissed.

The Virginia Supreme Court’s recent decision in Vines v. Branch, 8 VLR 3375, is instructive on the issue of what constitutes a new cause of action. In Vines, the court held it to be a fair test in determining whether a new cause of action is alleged in an amendment, to inquire if a recovery had upon the original complaint would be a bar to any recovery under the amended complaint, or if the same evidence would support both, or if the same measure of damages is applicable.

In the case at bar, the operative facts required to prove the new allegations are different from those necessary to prove the negligence alleged in the original suit. That is, the evidence required to support the original allegations of negligence would not be sufficient to support the claims in the second suit.

Most, or all, of the new allegations fairly could be characterized as claims of negligence per se. In order to sustain an action for negligence per se, a plaintiff of course first must plead and prove a violation of law. It is clear that no such allegation was made in the original for judgment, and thus equally clear that the negligence per se allegations continued in the plaintiff’s second motion for judgment constitute a new cause of action, commenced more than two years following the plaintiff’s injuries.

Evidence about, e.g., city code requirements, the permitting process and the inspecting process would have had no relevance to the claims asserted in the nonsuited action. Such evidence, however, would be essential if the plaintiff were to try to prove the allegations in the case at bar.

Plaintiff failed to allege, in his original action, the facts upon which he now premises his claim for relief based upon negligent construction and violation of the city code. He could not, as the authorities make clear, have attempted to prove such a claim or cause of action in the original action. Likewise, he could not have amended his original motion for judgment to include these new claims once the statute of limitations had run. He cannot raise these claims in a new action following nonsuit.

Because the new allegations of the amended motion for judgment effectively plead a new cause of action barred by the statute of limitations of Code § 8.01-243, I grant the defendant’s motion to dismiss those allegations.

Ely v. Shirley’s Barbeque Inc. (Weckstein) No. CL92000934, Mar. 22, 1993; Roanoke City Cir.Ct.; Robert M.D. Turk, Gordon H. Shapiro for the parties. VLW 093-8-145, 5 pp.

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