Claim from 1880 case is still viable

A White Stone man who was shot in the eye while standing in his girlfriend’s front yard can sue the man he claims shot him – and the alleged shooter’s two friends who were in the car with him.

To keep the two friends in court, Virginia Beach lawyer Christopher D. Supino dusted off a theory of liability approved by the Supreme Court of Virginia in 1880 – a civil “aiding and abetting” claim.

While a civil conspiracy claim also survived demurrer, the aiding and abetting count has one less element to prove, Supino noted. Conspiracy requires a plan ahead of time, while aiding and abetting merely requires that all the parties were together at the time a tort was committed, in this instance battery.

According to Supino, all the parties in the case, Selph v. Elbourn (VLW 009-8-240) had been members of a car racing club. The plaintiff, Selph, had a falling out with the others and left the club.

One night, he was at his girlfriend’s house, standing in the yard, talking, according to Supino’s complaint.

The three defendants – Elbourn, Abbott and Jeffries – rode by in a car owned by Jeffries and driven by Elbourn. Abbott shot at Selph with a BB gun, hitting him in the right eye, according to the complaint.

Selph filed a lawsuit seeking $1 million in compensatory damages and $350,000, the statutory maximum, in punitives. The 12-count complaint features a number of legal theories against all three defendants, including battery, aiding and abetting battery and conspiracy.

Supino claimed aiding and abetting by pleading, among other things, that the two friends provided the car and gun and that they goaded, encouraged and teased Abbott into shooting Selph, the plaintiff.

The defendants sought to knock out the aiding and abetting claim with a demurrer, but Supino pulled out the 1880 decision in Daingerfield v. Thompson, 74 Va. 136.

In that case, the Supreme Court found liability against a man named Daingerfield who had encouraged one Harrison to “give a salute” to, or get the attention of, Thompson, a third man inside a restaurant.
Harrison shot into the building, hitting Thompson in the foot. His leg later was amputated.

He sued, and the high court found Daingerfield liable, stating, “[A]ny person who is present at the commission of a trespass, encouraging and inciting the same by words, gestures, looks or signs, or who in any way or by any means, countenances or approves the same, is in law deemed to be an aider and abettor and liable as principal.”

Even though that case is 129 years old, it was good enough for Lancaster County Circuit Judge Harry T. Taliaferro III, who let the aiding-and-abetting claim proceed.

The conspiracy claim also survived demurrer, Taliferro said, writing that under the standard of notice pleading, Supino had pled enough to keep the claim alive.

While the plaintiff’s claim remain viable, the next activity in the case will shift to a declaratory judgment action filed by State Farm, which insured the alleged shooter, Abbott. There will be a hearing in the dec action in February, Supino said, and the parties in the liability case will know then whether there is coverage.

Richmond lawyer Jay O. Millman represents Abbott, while Lauren Hutcheson is counsel for Elbourn. Michael AtLee of Hampton is the attorney for Jeffries. None of these lawyers could be reached by press time.