The Supreme Court of Virginia dropped the other shoe today in the second of two wrongful death cases involving charities that it heard in October. As we reported here last week, the court reinstated by unpublished order a dismissal by a judge who concluded that the plaintiff had not shown the gross negligence required to get a tort case against a charity to a jury.
Today’s case, Zapata v. Community Alternatives Inc., Record No. 072477, involved the death of a 51-year-old man who had the development of a 5-year-old at a summer camp in the Blue Ridge Mountains. The man’s estate sued the camp and the residential care agency where he lived in Norfolk, alleging that the agency and the camp failed to monitor his medication and treatment at the camp.
The trial judge dismissed the case on the pleadings after finding that an allegation of simple negligence was not a basis for recovery against a charity. The plaintiff contended that the judge should have considered an allegation of gross negligence and allowed the case to proceed on that basis. The Supreme Court agreed, with Justice Cynthia D. Kinser dissenting, just as she did in Halsey v. Grafton Schools, Record No. 080023.
The court also decided by unpublished order two employment cases, one involving a covenant not to compete and the second an allegation by two employees that they had been fired because they reported the allegedly criminal activity of their supervisor.
In the non-competition case, KBH Corp. v. David R. McGeorge Car Co. Inc., Record No. 080371, the court agreed with the trial court that a covenant was unenforceable because it was overbroad. The agreement barred the employee from working in the activities of any similar business, not just that directly compete with the former employer, the court said.
In the wrongful termination case, Schmidt v. Triple Canopy Inc., Record No. 072556, the Supreme Court said the trial judge erred in instructing a jury that the panel must find for the employer if it had any basis other than the supervisor’s alleged misconduct for firing them. A plaintiff is not required to prove that an improper motive was sole the reason for termination, the court said. Another instruction that correctly stated the law did not cure the error in the other one, the court said.
By Alan Cooper