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Common pleading tactic under fire

Peter Vieth//April 20, 2011

Common pleading tactic under fire

Peter Vieth//April 20, 2011//

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A plaintiff’s lawyer handling a car-wreck case sometimes will plead reckless conduct by the defendant to fend off a contributory negligence defense or to sow the seeds for a possible punitive damages claim.

This common pleading tactic may be in jeopardy following a new ruling from Fairfax Circuit Court.
Circuit Judge Jonathan C. Thacher this month dismissed two lawsuits based on allegations of “recklessness.” The suits both alleged the defendant acted “consciously in disregard of other persons’ rights,” but offered few details. Both cases arose from what Thacher called “garden-variety automobile accidents.” The opinion is Sheymov v. Thomasson (VLW 011-8-071).

Neither lawsuit contained a demand for punitive damages. Neither suggested defenses of contributory negligence or sovereign immunity. Both suits alleged relatively routine driver negligence – rear-ending another car in one, running a red light in the other.

Thacher consolidated the demurrers in the two cases because the issues were the same: whether Virginia recognizes a common law claim of “recklessness” and whether the pleaded facts could support such a claim.

Thacher held the pleadings were sufficient to state claims “for willful and wanton conduct,” rejecting distinctions based on different terminology for reckless conduct.

Nevertheless, Thacher found no facts to support such a claim.

“The Virginia Supreme Court has recognized a very high factual standard to plead willful and wanton conduct,” he wrote.

Thacher relied primarily on a 1997 Supreme Court case involving a tailgating motorist and a 2008 Supreme Court opinion addressing pleading standards for inverse condemnation.

Plaintiffs’ lawyer Roger T. Creager of Richmond noted the 1997 case, Harris v. Harman, did not address pleading standards but, instead, involved the proof necessary to support a jury instruction for willful and wanton conduct.

Creager said he fears Thacher’s opinion will erode Virginia’s liberal notice pleading standard. “If the plaintiff alleges the defendant was not only negligent, but also willfully and wantonly negligent because he acted in conscious disregard of others, that should be sufficient pleading,” Creager said.

Creager said in many cases it’s impossible to know the defendant’s state of mind before filing a complaint and undertaking discovery. He suggested Thacher’s standard for pleading is not on solid ground.

“None of the cases cited by the judge require at the pleading stage that the plaintiff include allegations of the type the judge is requiring here,” he said.

Creager said allegations of willful and wanton conduct can serve several purposes. He pointed to case law establishing that a defendant’s willful and wanton conduct will defeat a defense of contributory negligence, at least in the absence of willful and wanton conduct by the plaintiff.

“That’s one of the very important reasons you want to put willful and wanton negligence in play,” he said.

Another plaintiffs’ lawyer, John D. Ayers of Fredericksburg, viewed allegations of recklessness as a way to overcome a defendant’s sovereign immunity. “I’m guessing that’s why he fought this so hard,” he said.

Other lawyers who read Thacher’s opinion questioned its impact, essentially agreeing with the proposition that a factual basis is required to add the elevated claims of negligence. “You still need to have the factual support for the pleadings,” said Thomas J. Curcio of Alexandria.

“You have to allege more than just the magic language – you have to allege the facts,” said Howard C. McElroy of Abingdon.

John D. McGavin of Fairfax brought the demurrer in one of the cases decided by Thacher. He thought Douglas B. Wessel of Reston, the lawyer for the two plaintiffs, was hoping to lay the groundwork for a claim for punitive damages. Even if there were no instruction on punitives, McGavin said he feared Wessel might use the reckless language to inflame a jury and urge a verdict that sets an example for the community.

“You can’t assume it’s in there by accident,” McGavin said.

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