Spring Sections Seminar Next Week, Lunch & Learns, New Journal, and more...

VADA Defense Line April 2021

President's Welcome

              It is officially Spring!  (Though it was 35 degrees out this morning – a typically Virginian Spring in which you find reason to turn on the heat and the air conditioner in the same day.)  And as I write this, I am officially two weeks out from my second vaccine dose.  It is a time of hope and optimism.  Even so, we hold in our hearts our friends and family on whom this past year has been hardest.  For me, I hope part of the 2021 rebirth will be a renewed focus on the value of relationships and the benefit of working together. 

              One of VADA’s recent additions of which I am most proud is our Lunch and Learn program.  Our goal is for this to be a monthly time that our members can gain some useful information from their desks or home offices during their lunch hour.  This past month our President-Elect Jason Moyers gave a wonderful presentation on seeing the civil litigation process through the eyes of our defense clients.  This month, on May 19, Dr. Peppers of Roanoke College will speak on his latest book, “Of Courtiers and Princes,” on the relationship between judges and their law clerks.

              A highlight of this month will be our virtual Spring Meeting.  Over three days – May 5-7 – our members can pick and choose from 17 available CLE hours put on by our section chairs and co-chairs.  Registration is open now on our website.  We hope you can join us!

               As I reach the halfway mark of my Presidency, I want to again thank our Executive Director, Sherma Mather and our Director of Meetings, Amy Gilbody.  When I accepted the VADA presidency, I said that my job, as best as I understood, was not to interfere with the great work Sherma and Amy do.  That was not just a line, it is dangerously close to the truth.  These talented, dedicated, and amazing women are the backbone of our organization.  They have been continuously flexible and innovative in guiding us through these times.  I only hope that when I step down in six months, they will be able to look me in the eye and say, “Tate, you didn’t screw this up too bad.” 

              Thank you for the continued commitment of you, our members, to this organization.  It is greatly appreciated.  Until next month …  

Tate C. Love
VADA President, 2020-21

Registration is still open for our annual specialized litigation training with sessions directly related to your practice areas.

This year, our Spring Sections Seminar will be virtual on May 5-7.  Our section leaders have developed an excellent program, including sessions on cannabis legislation, data privacy laws, legal malpractice claims in the wake of COVID-19, defending cases involving farm equipment and watercraft, and much more.  

The program will run over 3 days on Zoom. Register for as many sections as you'd like and join from the comfort of your home or office.  Registration includes a virtual happy hour Thursday night. See the full agenda and register online here.

MAY 19

Of Courtiers and Princes
A conversation with author Todd Peppers, Ph.D.
Roanoke College

Dr. Todd Peppers is the Henry H. and Trudye H. Fowler Professor of Public Affairs at Roanoke College in Salem, Virginia.  Dr. Peppers’ new book, Of Courtiers and Princes, is the fourth he has edited or co-edited on the relationship between judges and their clerks.  Drawing on contributions from former law clerks and judicial scholars, including an essay by the late Justice Ruth Bader Ginsburg, Of Courtiers and Princes examines the law clerk’s role in lower federal and state courts.  It provides an inside look at the professional and personal bonds that form between lower court judges and their law clerks. 

Dr. Peppers is a 1990 graduate of Washington and Lee University and a 1994 graduate of the University of Virginia School of Law.  After law school, he clerked for United States District Judge Thomas M. Shanahan of the District of Nebraska and United States District Judge Glen E. Conrad of the Western District of Virginia.  In 2003, Dr. Peppers obtained his Ph.D. in political science from Emory University.  He joined the Department of Public Affairs at Roanoke College in 2002.  He also teaches as a Visiting Professor at the Washington and Lee University School of Law.  Since 2010, Dr. Peppers has served as the Coordinator of Roanoke College’s James C. and S. Maynard Turk Pre-Law Program.

Other books by Dr. Peppers on the subject of judges and their law clerks include Courtiers of the Marble Palace: The Rise And Influence of the Supreme Court Law Clerk (2006), In Chambers: Stories of Supreme Court Law Clerks and Their Justices (2012), and Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices (2015).

This event is fully virtual, via Zoom, and free to current and potential VADA members.  Register here.


Balancing the Billable and the Non-Billable
Tate C. Love

There are a number of activities – bar associations, non-profit boards, firm governance – that are both worthwhile, and can add to your marketability and profitability.  Join VADA President Tate Love, who will discuss how you balance your participation in these laudable pursuits, while still meeting your billable goals.

The event is fully virtual, via Zoom, and free to current and potential VADA members. Register here.

The Learning Continues

Through the Eyes of the Insured
Jason G. Moyers
Frankl Miller Webb & Moyers

A mainstay of an insurance defense practice is the tripartite relationship between attorney, insurer, and insured.  While defense counsel goes to great lengths to zealously represent his or her client—the insured—and to comply with billing and other insurance company guidelines, all too often, the insureds themselves can get lost in the shuffle.  More often than not, a particular lawsuit is an insured’s first and only experience with the judicial system.  Things such as pleadings, written discovery, depositions, and trial, while common to us, are, to them, foreign.  In addition, the stress and uncertainty associated with being sued can often be overlooked. 

On April 14, VADA President-Elect, Jason Moyers, presented the course of a civil lawsuit through the eyes of the insureds themselves.  He provided those in attendance with a better understanding and appreciation of what a lawsuit is like for an insured and those in attendance are now better equipped to address the concerns, fears, anxieties, and questions their clients have through the course of the representation.

If you missed Jason's Lunch & Learn, you can watch a recording of the presentation here.

If you missed Jason's Lunch & Learn, you can watch a recording of the presentation here

Next Week, May 3-7, is Well-Being Week in Law (WWIL). Coinciding with Mental Health Awareness Month, the aim of WWIL is to raise awareness about mental health and encourage action and innovation across the legal profession to improve well-being. Each of the five days in WWIL is focused on one dimension of overall well-being:

  • MONDAY: Stay Strong (Physical Well-Being): Striving for regular activity, good diet and nutrition, enough sleep and recovery. Limit addictive substances and seek help for physical health when needed.
  • TUESDAY: Align (Spiritual Well-Being): Cultivating a sense of meaning and purpose in work and life. Aligning our work and lives with our values, goals, and interests.
  • WEDNESDAY: Engage & Grow (Occupational & Intellectual Well-Being):Seeking personal satisfaction, growth, enrichment in work, and financial stability. Engaging in continuous learning and creative or intellectually challenging activities that foster ongoing development. Monitoring cognitive wellness.
  • THURSDAY: Connect (Social Well-Being): Building connection, belonging, and a reliable support network. Contributing to our groups and communities.
  • FRIDAY: Feel Well (Emotional Well-Being): Valuing emotions. Developing an ability to identify and manage emotions for health, to achieve goals, and to inform decisions. Seeking help for mental health when needed.

For more information about WWIL, and how you can promote well-being in your practice and among others in your firm, click here and here.

The Journal of Civil Litigation 

Spring Edition (Vol. 33, No. 1)

Check your mailbox or view online in the members-only area of our website (login required).

The Spring edition (Vol. 33, No. 1) of the Journal of Civil Litigation (the Journal) is hot off the presses!  VADA members should be receiving their hard copy in the mail, soon.  And, as always, members can access the Journal digitally, including searching back issues, in the “Members Only” section of our website.

This quarter’s Journal includes two feature articles.  First, Eileen Garczynksi and Tracy Taylor Hague discuss the rise of legal malpractice claims in the wake of COVID-19, and what insurance defense practitioners can do to avoid them.  Then, Benjamin Woody educates us on the “IoT” – the Internet of Things – and how to use it to your advantage in civil litigation.

This month’s Journal also has the normal array of judicial opinions from around the Commonwealth.  There are 17 opinions featured, including one on when a UPS truck is (or is not) an RV.

The Journal remains one of the premier benefits of being a VADA member.  Very few state-level defense organizations can boast of producing a scholarly journal on a quarterly basis.

As always, thanks to the Chair of our Board of Editors, John Eure; our Editor-in-Chief, Kent Sinclair at the UVA School of Law; our Managing Editor Molly Terry; and our entire Board of Editors.  A special shout out to Julie Palmer, our current Treasurer.  Despite currently being on our Executive Committee, Julie continues to serve on the Board of Editors.  Thanks Julie!       

Your VADA leadership attended a virtual conclave hosted by DRI in April among state and local defense organization leadership from across the country.  There was an excellent exchange of useful information, including strategies for providing members benefits during the pandemic and the future.  DRI continues to offer a full slate of virtual conferences, and is targeting this summer for a return to live programming.  Presently, the Diversity for Success Seminar is scheduled to take place June 16-18 at the Marriott New Orleans, the combined Insurance Coverage and Insurance Bad Faith Seminars are scheduled to take place July 22-24 in Chicago, and the Medical Liability and Health Care Law Seminar is scheduled to take place July 29-30 in Las Vegas. See details about these events and all other DRI events here.

Membership renewal is continuing! If you have questions about your membership status, please reach out to Executive Director Sherma Mather at smather@vada.org or Membership Chair Sam Bernier at sbernier@faplawfirm.com for more information.

John Brown of Butler Snow

Joe Cooch of LeeShoemaker

Sandra Chinn Gilstrap of Clement & Wheatley

Douglas Palais of Vandeventer Black

Nirav Patel of Franklin & Prokopik

Daniel Salmon of Vandeventer Black

Peter Schurig of Setliff Law

Kevin Streit of Setliff Law Group

Danielle Takacs of Franklin & Prokopik

The only song that speaks to this Richmond litigator and North Carolina native more than “The Good Old Song” is track 6 of the album Waylon and Company.  To learn this and a whole lot more about this month’s VADA Spotlighted Member, click here.

Be sure to bookmark VADA Upcoming Events so you don't miss out.

May 5-7
Spring Sections Seminar 

May 19
Of Courtiers and Princes

June 23
Balancing the Billable & the Non-Billable Lunch & Learn

Summer (Date TBD)
Paralegal Seminar

October 20-22
Annual Meeting
Marriott Va. Beach Oceanfront

Shoemaker v. Funkhouser, et al.: Expanded Liability Imposed On Landowners for Acts of Third Parties

Abby Johansen
Bancroft McGavin Horvath & Judki

            Recently, the Virginia Supreme Court held that, under certain circumstances, landowners have a limited duty to prevent activity on their property that could harm others not on the property. The opinion, authored by Justice McCullough, published on March 25, 2021, offers a detailed analysis of a landowner’s duty to those not on their property.

            The underlying action involves two neighboring landowners. On November 23, 2014, Gina Shoemaker was visiting her mother, Dorothy Nesselrodt in Shenandoah County, Virginia. Ms. Nesselrodt’s property is adjacent to the Funkhouser’s property and is separated by a several trees. On the same day, Shawn Nicely was visiting his grandparents, Richard and Anna Funkhouser. At some point, the Funkhouser’s gave their grandson permission to shoot targets with his rifle. While doing so, one of the bullets penetrated the walls of Ms. Nesselrodt’s home and struck and killed Ms. Shoemaker. This wrongful death action followed.

            The Amended Complaint alleged that the Funkhousers owed “a duty to refrain from granting Nicely permission to shoot a rifle from their property in the direction of Nesselrodt’s house, and that they were negligence in granting him this permission.” Funkhouser at 2. The Funkhouser’s demurred and the trial court dismissed the action finding no duty. The plaintiff appealed, and the Virginia Supreme Court granted a writ. 

            In analyzing this case, the Virginia Supreme Court restated the general rule that a landowner or occupier does not have a duty to protect others from harmful acts of third parties acting on or near their land. However, the Court held that the allegations in this case fell within the special relationship exception to the general rule. Here, the Court concluded that a landowner has a duty to:

exercise reasonable care to control the conduct of a third party, who has been granted permission by the landowner to use the land, to prevent that third party from intentionally harming others or from conducting himself so as to create an unreasonable risk of bodily harm to others. (at 7).

Specifically, the landowner must:

1.)   be present,
2.)   know or have reason to know that they have the ability to control the third person, and
3.)   know or should know of the necessity and opportunity for exercising such control.

Applying these elements, the Court explained that the allegations showed that the Funkhousers:

1.)   were present on their property when they granted permission to their grandson to shoot targets in the direction of Ms. Nesselrodt’s home,
2.)   had the ability to control their grandson,
3.)   knew the Nesselrodt’s home was on the other side of the trees, which were not dense, and
4.)   they knew or should have known that firing a rifle in such direction could have struck the Nesselrodt residence.

            Accordingly, the Court held that the Funkhousers owed a duty not to grant permission to shoot targets on their property in the direction of the Nesselrodt home.

            Additionally, the Court held that the Virginia Recreational Land Use Act, Va. Code § 29.1-509, did not shield the Funkhousers from suit. The Court opined that the Act did not include granting permission to engage in target shooting on one’s land nor did this circumstance amount to use of an easement or license.

            In a detailed dissent, Justice Kelsey, joined by Chief Justice Lemons and Justice Chafin, disagreed with the majority opinion on both the applicable duty owed and the application of the Virginia Recreational Land Use Act. The dissent criticized the majority opinion’s wide latitude in interpretation of the allegations. Specifically, the dissent argued that the Amended Complaint did not allege that:

1.)   Nicely was inexperienced with firearms,  
2.)   the Funkhousers were outside and in Nicely’s presence when he was target shooting,
3.)   the Funkhousers saw Nicely shoot his rifle,
4.)   the Funkhousers gave Nicely permission to shoot at the Nesselrodt home,
5.)   the Funkhousers were present on the property when they granted Nicely permission or that Nicely was present on the property when he received such permission,
6.)   the Funkhousers knew the manner in which Nicely would fire his rifle, or
7.)   the Funkhousers should have anticipated that Nicely would negligently fire his rifle.

            Further, the dissent took issue with the majority’s opinion that target shooting did not fall within the “other recreational” category outlined in the Virginia Recreational Lane Use Act, as a covered activity or within a category of licensees. According to the dissent, target shooting falls squarely within the Act and should prevent such claims.

            So, what does this mean?

The Court has expanded a landowner or occupier’s potential liability for the acts of third parties that occur on the landowner or occupier’s property. In a notice pleading state, such as Virginia, Plaintiffs may attempt to circumvent the general rule against liability by suing defendants in a “land owner or occupier” capacity in order take advantage of this expanded special relationship exception. However, as identified in the dissent, there are many unanswered questions regarding the requisite factual allegation to state an actionable claim in this circumstance, which may lead to varied application of the duty in different jurisdictions. Regardless, this opinion allows for expanded liability and grants great latitude for plaintiff’s to rely on broad “and/or” style allegations.

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    VADA’S Mission

    The mission of the Virginia Association of Defense Attorneys is to assist Virginia attorneys in the professional and ethical representation of their clients in civil litigation through education, communication and fellowship.

    Virginia Association of Defense Attorneys
    1915 Huguenot Road, Ste. 301
    Richmond, VA  23235
    804-649-1002 | www.vada.org

    Executive Director: Sherma Mather
    Director of Meetings: Amy Gilbody
    Journal of Civil Litigation Managing EditorMolly Terry

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