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his is the fourth in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It concludes the ministerial act exception to Virginia sovereign immunity. There are four additional sovereign immunity cases evincing that...

his is the third in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It continues the ministerial act exception to Virginia sovereign immunity. Heider and Friday-Spivey have articulated and promoted the ministerial act exception...

In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, the brain injury victim is contesting the Assistant Principal’s Plea of Sovereign Immunity. One ground for opposition is that the Defendant’s alleged wrongful act is simply ministerial, which continues...

In Virginia, the Commonwealth, counties, cities, towns, school boards, agencies, and sometimes even their employees enjoy sovereign immunity from the wrongful deaths, brain injuries and other personal injuries they cause. Currently an Assistant Principal is claiming sovereign immunity for brain injuries suffered by a student who was...

Plaintiffs in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, are the family of a student who suffered brain injuries. Defendant Assistant Principal additionally seeks to interpose Va Code Ann. §8.01-47. §8.01-47 immunizes a “principal…who, in good faith...

Defendant Assistant Principal also seeks to interpose Va. Code Ann. §15.2-248 in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. But that statute’s "presentment requirement likewise is inapplicable to that brain injury suit on a few independent grounds. The analysis of §15.2-1248 is analogous...

In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, inter alia Defendant Assistant Principal seeks to interpose Va. Code Ann. §15.2-209. But the statute’s “notice” requirement is inapplicable to this brain injury case on several independent grounds. §15.2-209 was passed in the...

Sometimes an unscrupulous adversary lulls another into a false sense of security and inaction, and then seeks to capitalize on technicalities implicated thereby, such as time deadlines missed by the unsuspecting victim. Fortunately Virginia courts are empowered to resolve such injustices based on equity instead...

The General Assembly enacted the Statute of Frauds, making certain oral contracts unenforceable. It explicitly required a contract be “in writing and signed by the party to be charged” in enumerated cases. Va. Code Ann. § 11-2. For well over a century however, the Commonwealth’s Courts have...

On February 23, 2009, Gloucester Circuit Court ruled that a Plaintiff brain injury victim was entitled to all school records concerning his attack, despite Gloucester High School keeping them solely in the files of his attacker, another student named Co-Defendant with its Assistant Principal. The case is Gregory...

Newport News Circuit Court ruled on discovery matters in a patient fall suit, Shakshober v. Riverside Hospital, Inc., alleging medical malpractice and resulting brain injury. That was at contradictory hearing on February 9, 2009. The primary sweep of the impending Discovery Order was disgorging from Riverside materials and...

Virginia defense counsel can file a Motion to Strike various aspects of a lawsuit in vehicle accident, sexual abuse, product liability, premises liability, and all other personal injury cases. Such Motions may strike at particular claims, exhibits, etc. A Motion to Strike “requires the trial court to...

Virginia defense lawyers can demur that a lawsuit fails to state a legally cognizable claim in vehicle accident, wrongful death, brain injury, and all other personal injury cases. Although a Demurrer does not admit purely legal conclusions, it does admit all pleaded facts, and inferences therefrom;...

Virginia defense attorneys can interpose a wide variety of potentially dispositive issues on Special Plea in Bar in vehicle accident, brain injury, wrongful death, and all other personal injury cases. On Plea, the asserting party bears the burden of proof on the issue raised. E.g., Geographic Network...

Virginia jurisprudence holds that an owner may be liable for “negligent entrustment” by permitting an unfit driver to use his vehicle if it causes a vehicle accident. “The correct test of liability is whether the owner knew, or had reasonable cause to know, that he was...

Some parents and others allow underage children to drive the family car. But by Virginia statute, that exposes them to personal liability for vehicle accidents. Va. Code Ann. §8.01-64 reaches any owner who allows and any other person who furnishes a minor who is under 16 years old...

Under Virginia common law, motor vehicle operators are liable for all wrongful death, personal injury, and property damages caused by their negligence. Under Virginia statute, they also are liable for exemplary (or punitive) damages for malicious or willful or wanton conduct showing a conscious disregard for...

Car accidents occur constantly. But many crash-related wrongful deaths and brain injuries can be avoided by wearing seatbelts. In September, 2008, the National Highway Transportation Safety Administration (“NHTSA”) noted for passenger vehicle accidents: “Research has found that lap/shoulder seat belts, when used reduce the risk of fatal injury...

Healthcare providers uniformly have resisted production of factual patient care records they claim ostensibly are “quality care” and/or “peer review” papers. But they uniformly have lost under Va. Code Ann. §8.01-413 in pending but unserved medical malpracticecases. Mary Immaculate (thrice), Riverside (twice), Sentara (once), and Carilion (once)...

Some healthcare providers strenuously deny the applicability of Va. Code Ann. §8.01-413(B & C) while suit for medical malpractice is pending. But tellingly, others have admitted its applicability, even with suit unserved. After Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), Riverside thrice admitted the applicability of §8.01-413(B)...

Despite refusing to comply with Va. Code Ann. §8.01-413(B) in medical malpractice, wrongful death, vehicle accident, and other personal injury cases, some healthcare providers try to avoid enforcement by companion §8.01-413(C). Their threshold argument that statutory enforcement under §8.01-413(C) constitutes impermissible litigation discovery is unfounded. Va. S....

Another defense tactic in medical malpractice case is attempting to fabricate a distinction between “paper” and “electronic” records. But Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the landmark case of Avery T. “Sandy” Waterman, Jr., Esq., also upheld the admissibility of such electronic database materials, extensive...

Historically in medical malpractice cases, the defense enjoyed knee-jerk success with convincing Courts to treat so-called “sentinel event reports” differently than other “incident reports”. But that has changed this decade, and stands to erode further in the face ofRiverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006),...

Following the landmark case of Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), handled by Avery T. “Sandy” Waterman, Jr., Esq., healthcare providers routinely are being forced to provide their incident reports and other investigative materials for medical malpractice cases. Toward stemming the changing judicial tide, some...

“The protection provided by § 8.01-581.17 is a qualified privilege similar to the privilege afforded by Rules of Court 4:1(b)(3),” observed Justice Lemons in Stevens v. Lemmie, 40 Va. Cir. 499, 512 (Petersburg 1996)(Lemons, J.)(emphasis added), a medical malpractice case. The limited privilege for certain “committee” communications pertains only “unless...