21 Nov Virginia: Wrongful Death – A Lawyer’s Gross
On October 27, 2016, a split Virginia Supreme Court affirmed grant of summary judgment by Richmond Circuit Court on allegations of gross negligence in the wrongful death suit of Elliot v. Carter, No. 160224. The majority of five concluded: “although [defendant’s] effort may have been inadequate or ineffectual, they were not so insufficient to constitute the indifference and utter disregard of prudence that would amount to a complete neglect for [deceased’s] safety, which is required to establish gross negligence a claim of gross negligence must fail as a matter of law when there is evidence that the defendant exercised some degree of diligence and care.” Id. at 5.
Conversely, the two dissenting Justices in the Elliot wrongful death case emphasized that defendant knowingly abandoned deceased in a very dangerous situation. Id. at 5-6. They also found sufficient to raise a jury question on gross negligence defendant’s two “purported acts of slight care, separated in time and place from the gross negligence at issue,” particularly the “ineffectual and doomed to fail rescue attempt” after-the-fact. Id. at 6.