Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiff’s decedent was killed when she fell through an open or unsecured door on a moving party bus, a defense motion craving oyer of an inspection certificate for the bus is denying because plaintiff’s negligence claim does not arise from the certificate.
A demurrer filed by the company that inspected the bus is sustained. By making the required inspection of the bus’s two front doors, it did not assume a duty to inspect the entire bus, including the door through which the decedent fell.
Facts
Defendants, Michael and Shannon Wheeler, owned and operated a party bus. Plaintiff’s decedent was riding in the bus. As the bus came up a freeway ramp, decedent suffered fatal injuries when she fell out of a door, which was either open or unsecured. The bus passed a state inspection performed by NTB, another defendant in this case, about five months before the accident.
NTB has filed a motion craving oyer of the inspection certificate. NTB has demurred to plaintiff’s negligence claim. The court now issues its rulings.
Oyer
“NTB ‘craves oyer of the Virginia State Police Inspection Certification,’ arguing that ‘Plaintiff refers to and relies on this document’ in paragraph 16 of the FAC [first amended complaint]. ‘[A] motion to crave oyer is a request of the Court to require that a document sued upon, or a collateral document which is necessary to the Plaintiff’s claim, be treated as though it were part of the Plaintiff’s pleadings. … The motion should be granted only where the missing document is essential to the claim.’ …
“The document that is the subject of NTB’s motion craving oyer does not form the basis for Plaintiff’s claim; it is merely evidence that NTB conducted the inspection described by Plaintiff. Plaintiff does not assert a claim arising out that document; his claim is for negligence. For this reason, the Virginia State Inspection certificate is not the proper subject of a motion craving oyer and the motion is DENIED.”
Demurrer
Defendants had filed a special plea in bar regarding the location of the door through which decedent fell. They have since stipulated as to the door’s location.
NTB has demurred to plaintiff’s negligence claim. Plaintiff alleges that when NTB undertook to conduct a state inspection of the party bus, it assumed a duty to inspect the entire bus, including all of the doors.
“NTB argues that a Virginia State Inspection does not involve or require the inspection of a vehicle’s rear or side doors and that the controlling regulations require only a limited inspection of the two front doors.
“The FAC does not allege that the NTB inspector failed to perform anything that the Virginia regulations require respecting a Virginia State Inspection. With no allegation that NTB had been asked to do anything more than a Virginia State Inspection, NTB argues that it could not have negligently failed to discover any condition regarding the rear door, because it never had a duty to do anything with that portion of the vehicle. …
“The Court is persuaded by the arguments raised in support of the demurrer that a Virginia Inspection Station has no duty to expand its inspection beyond that which the regulations require. The facts advanced by plaintiff in his memorandum that NTB undertook a duty to inspect the entire Party Bus including parts of the vehicle that the regulations did not require it to inspect, do not appear in the FAC.
“The allegations in the FAC do not state a cause of action for negligence against NTB because they fail to allege facts to support a conclusion that NTB breached a legal duty owed to Decedent.
“The Court SUSTAINS the demurrer and grants Plaintiff leave to amend to include any additional facts that would support the conclusion that NTB undertook or assumed a duty. Any amended pleading must be filed within 30 days of the date of this opinion letter.”
Lott, et al. v. Wheeler, et al., Case No. CL19-5985, Oct. 9, 2020, Norfolk City Cir. Ct. (Hall). William F. O’Mara Jr., Brennan Delaney, Richard J. Cromwell, Joseph L. Wilson for the parties. VLW 020-8-123, 5 pp.
