Virginia: Wrongful Death – a Lawyer’s Recruit

The Virginia Supreme Court opined in Kohn v. Marquis, No. 131162, on September 12, 2014. It affirmed summary judgment on plea in bar, finding that the Virginia Workers’ Compensation Act barred third-party lawsuit for alleged wrongful death. Id. at 9.

In Kohn, it was undisputed that the victim’s alleged wrongful death “arose out of and in the course of his employment” at the hands of his co-employees while he was a paid recruit at Norfolk Police Academy. Id. at 6. But the parties disputed whether his death was “a gradually incurred injury [and] not an injury by accident within the meaning of the [Worker’s Compensation] Act.” Id. at 7.

The Virginia Supreme Court held in Kohn: “This case significantly differs from the gradually incurred injury and repetitive trauma cases referenced by Kohn in that John suffered obvious mechanical or structural change in his body while engaged in a work activity which exposed him to an employment-related hazard that injured him and contributed to his death.” Id. at 8. Although the recruit had suffered multiple blows to his head in preceding months of training that did not require hospitalization or otherwise incapacitate him; he suffered a “head-to-head collision with another recruit, and suffered several blows to his head while engaged in a defensive training exercise,” before collapsing, becoming comatose, and being hospitalized on the day he died. Id. at 3, 8-9.