Virginia: Brain Injury – a Lawyer’s Error

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“Invited error” is a specific waiver issue in Gagnon v. Burns, No. 110767 c/q No. 110754 in the Virginia Supreme Court in Richmond, Virginia. The brain injury victim argues that the opposition is estopped on appeal from complaining about the legal consequence the damage instructions and the verdict form he desired at trial; that he cannot be permitted to “approbate and reprobate – to invite error…and then to take advantage of the situation created by his own wrong.” Garlock Sealing Techs., Inc. v. Little, 270 Va. 381, 387-388 (2005)(upholding “joint and several liability” where the judge permitted the jury to apportion damages).

Analogously to the Gagnon crime victim case, at trial in Garlock Sealing, the defense “convinced the circuit court to permit the jury to apportion fault” for purposes of damages apportionment. Id. at 387. On appeal, Garlock Sealing complained it was error to apply “principles of joint and several liability” to require that it pay plaintiff for damages apportioned to insolvents, but the Virginia Supreme Court refused to consider its contentions: “We will not permit Garlock Sealing to obtain an apportionment of liability…and then complain about the method [consequences] of apportionment.” Id. at 387-388.

“The [United States] Supreme Court has held that the principle of joint and several liability is applicable in admiralty jurisdiction and that principle was not abrogated by the proportionate share approach rule,” continued the Virginia Supreme Court in Garlock Sealing. “And we note that the Supreme Court stated that this principle can result in ‘one defendant’s paying more than its apportioned share of liability when the plaintiff’s recovery from other defendants is limited by factors beyond the plaintiff’s control, such as a defendant’s insolvency’.” Id. at 388.