Virginia: Brain Injury – a Lawyer’s Supplement

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On December 16, 2010, Mr. Waterman filed Plaintiff’s Supplemental Motion and Memorandum for Joint and Several Liability in the brain injury lawsuit of Gagnon v. Burns, Case No. 08-572 in Circuit Court for Gloucester County, Virginia. He found substantial new legal authority for a negligent joint tortfeasor being liable for the intentional torfeasor’s portion of the victim’s damage.

For at least 70 years, the Virginia Supreme Court has embraced the Restatement of Torts as authoritative. Example cases follow. Dunn, McCormack & MacPherson v. Connolly, 2010 Va. LEXIS 158 (April 20, 2010)(intentional tort); Kellermann v. McDonough, 278 Va. 478, 489 (2009)(assumed duty); Koffman v. Garnett, 265 Va. 12, 16 (2003)(assault elements)(sovereign immunity case); Dadato v. Strehler, 262 Va. 617, 628 (2001)(assumed duty); Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 583 (1990)(intentional misconduct); and Bloxom v. McCoy, 178 Va. 343, 349 (1941)(third persons).

The Restatement (Third) of Torts: Apportionment of Liability §14 at 117-121 (Cumm. 2010) is on point with the Gagnon brain injury case, and recognizes the joint and several liability of a negligent tortfeasor such as Defendant Burns for intentional tort. “Tortfeasors Liable for Failure to Protect the Plaintiff from the Specific Risk of an Intentional Tort – A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to that person.”

Like Virginia, sister-state West Virginia is one of the few remaining “pure joint and several liability” states. In 2004, the West Virginia Supreme Court followed Restatement (Third) of Torts §14; held on point that “tortfeasors whose wrongful acts or omissions, whether committed intentionally or negligently, concur to cause injury are joint tortfeasors who are jointly and severally liable for the damages which result from the wrong so committed”; and upheld that the negligent tortfeasor was jointly and severally liable for the entire verdict despite the jury “apportioning thirty percent liability to Appellant based on negligence and seventy percent liability to Robert Cleavenger based on his intentional act”. Strahin v. Cleavenger, 216 W.Va. 175 (2004)(emphasis added).

Further, for the definition of “joint tortfeasors,” the West Virginia Supreme Court in Strahin looked to Black’s Law Dictionary. Likewise, the Virginia Supreme Court looks to Black’s for its definition; and so too should Gagnon for the brain injury victim.