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Return to Sender? Norfolk judge says no

Deborah Elkins//December 19, 2011

Return to Sender? Norfolk judge says no

Deborah Elkins//December 19, 2011

A Norfolk Circuit judge isn’t taking any chances on having a personal injury case land back in his lap.

Judge Everett A. Martin Jr. had a fairly routine premises liability case before him last month. Plaintiff Daniel Moran was thinking of buying a house owned by Fannie Mae. He got the lock-box combination from the listing agent and entered the house on Sept. 14, 2009.

His complaint said he “entered a dark, unlit staircase to the basement that, unknown to him, was missing all of the stairs except for the top three.” Ouch. It sounds like the old cartoon warning, “That last step’s a doozy.” Moran was severely injured when he fell six to eight feet to the concrete basement floor below.

When Moran sued Fannie Mae, J.S.B. Realty and two brokers, Fannie Mae argued contributory negligence in its memorandum in support of demurrer.

Granting a demurrer on contrib? Not a chance, the court said in Moran v. Fed. Nat’l Mtge. Ass’n.

Martin rejected the 1916 and 1945 Virginia Supreme Court cases cited by Fannie Mae to support its request for dismissal. He didn’t think the high court, as currently constituted, would rule the same way.

To be sure, Virginia’s substantive law on contributory negligence has not changed, Martin said, “but the appellate reception of pre-trial dismissals of negligence actions is now quite frosty.”

“The Supreme Court has often criticized actions by circuit courts that ‘short-circuit’ litigation. Motions to strike are disfavored in negligence actions,” Martin wrote.

“As tempting as it might be to find contributory negligence as a matter of law on the face of this amended complaint, if I were to do so I would probably be remiss if I did not also instruct the Clerk to stamp ‘REVERSE ME!’ in large orange letters on the cover of the file he sends to Richmond,” Martin said.

He let the negligence case go forward against the owner. The court dismissed claims against the realty company and its brokers for failure to state a duty owed.
By Deborah Elkins

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