Voluntary Dismissal Allowed, With Condition

Funeral Attendee Not VFW Agent

By Deborah Elkins
Published: May 14, 2013
Tags: Judge Chadwick S. Dotson, Tort, Virginia Circuit Courts, Wise County Circuit Court

Plaintiffs have not shown that an individual defendant was acting as an agent of the local or national Veterans of Foreign Wars organizations when he attended funerals, and the Wise County Circuit Court dismisses plaintiffs’ complaint on defendants’ plea in bar. The party asserting a plea in bar bears the burden of proof on the [...]

Officers Have Immunity from Suit

By Deborah Elkins
Published: May 14, 2013
Tags: Judge James P. Jones, Negligence, Norfolk Circuit Court, Virginia Circuit Courts

Defendant police officers have satisfied the four-part test for sovereign immunity and the Norfolk Circuit Court grants their special plea in bar filed in response to plaintiff’s negligence suit. Virginia applies the test from James v. Jane, 221 Va. 43 (1980), in order to determine whether a government actor is entitled to sovereign immunity. This [...]

Plaintiff May Amend for ‘Gross Negligence’

By Deborah Elkins
Published: May 10, 2013
Tags: Judge Junius P. Fulton III, Negligence, Norfolk Circuit Court, Virginia Circuit Courts

In litigation arising from an officer’s automobile collision with another vehicle, the Norfolk Circuit Court will allow plaintiff to amend the complaint to allege gross negligence. Gross negligence means something more than lack of ordinary care. The court defines gross negligence as a degree of negligence which shows an utter disregard of prudence amounting to [...]

Missed Diagnosis Claim Not ‘Gross Negligence’

By Deborah Elkins
Published: May 10, 2013
Tags: Judge Mary Jane Hall, Medical Malpractice, Norfolk Circuit Court, Virginia Circuit Courts

A Norfolk Circuit Court sustains a demurrer to a gross negligence claim filed by the estate of a woman who allegedly died as a result of the defendant resident physician’s failure to diagnose the woman’s ectopic pregnancy; the Norfolk Circuit Court sustains defendant physician’s demurrer to the gross negligence claim, but overrules the special plea [...]

Wrongful Death Suit Remanded

By Deborah Elkins
Published: May 8, 2013
Tags: Civil Procedure, Judge James P. Jones, U.S. District Court - Western District

A Big Stone Gap U.S. District Court remands to state court plaintiff administrator’s wrongful death suit against a health and rehabilitation center. Because plaintiff is a citizen of Virginia, it is now clear that there is no longer complete diversity between plaintiff and each defendant in this case and thus this court no longer has [...]

Discovery Ordered for Tax Records

By Deborah Elkins
Published: May 8, 2013
Tags: Judge James P. Jones, Tort, U.S. District Court - Western District

In plaintiff mining company’s fraud action against defendant, from whom plaintiff purchased a surface coal mine and quarry in Dickenson County in 2010, the Big Stone Gap U.S. District Court denies defendant’s objections to the magistrate judge’s discovery order requiring defendant to produce copies of tax records and accounting of the expenditure of the $5 [...]

Defamation Claim Works Without ‘Exact Words’

By Deborah Elkins
Published: May 8, 2013
Tags: Judge Norman K. Moon, Tort, U.S. District Court - Western District

A former cashier for Wal-Mart may sue for malicious prosecution based on her claim that her actions in applying “price match” discounts conformed to Wal-Mart’s policies and practices at the Lexington store and Wal-Mart had no basis for reporting her alleged embezzlement to police; the Lynchburg U.S. District Court also says plaintiff’s defamation claim under [...]

No Res Ipsa Loquitur Claim for Elevator Drop

By Deborah Elkins
Published: May 8, 2013
Tags: Judge Henry Coke Morgan Jr., Tort, U.S. District Court - Eastern District

A Norfolk U.S. District Court dismisses a negligence claim filed by a woman who was injured when she stepped into an elevator on the 12th floor of the tower at One Commerce Place in Norfolk, and was injured when the elevator suddenly and violently dropped a number of floors; this court will not extend Virginia [...]

Parents Have no Claim for CPS Inquiry

By Deborah Elkins
Published: May 8, 2013
Tags: Judge Henry Coke Morgan Jr., Tort, U.S. District Court - Eastern District

The parents of a 14-month-old daughter who did not promptly seek medical attention when the child suffered a second-degree burn to her shin as her father held her and her twin sister while riding an all-terrain vehicle, lose their suit alleging malicious prosecution and due process violations arising from their investigation by child protective services [...]