Articles Posted in Premises Liability

The Virginia Supreme Court recently decided a case arising from a premises liability lawsuit. In that case, a man was visiting his grandparents’ home where they permitted him to target practice in the direction of their neighbor’s residence. During practice, one of his bullets went through the trees and into the neighbor’s home, striking and killing a woman visiting her mother. The victim’s representative filed a lawsuit against the shooter’s grandparents, arguing that they were negligent in allowing him to target practice in the direction of their neighbor’s home. Among several defenses, the defendants argued that they were immune from lawsuits under Virginia’s Recreational Land Use Act.

Virginia maintains a recreational immunity statute that provides immunity to certain landowners in specific situations. Common law mandates that courts should resolve statutory contentions by strictly construing the terms at issue. In Virginia, the recreational use statute holds that landowners do not owe a duty to keep their land safe for entry or use by others for certain recreational activities. These activities include hunting, fishing, camping, water sports, boating, hiking, foxhunting, and bicycle riding. However, the landowner may be liable for “negligence or willful, or malicious” failures to warn against dangerous conditions.

In this case, the court first analyzed the statute’s protected activities, which includes hunting but not target shooting. The court reasoned that the language does not encompass any phrase that would amount to “any other recreational use.” Therefore, the statute does not extend to non-enumerated activities. Next, the statute only provides immunity for property owners that provide a third party with the “use of an easement or license.” The statute expressly stated that the subsection applies regardless of whether the property owner gave the third-party permission to use their land for recreational purposes. Ultimately, the court found that the recreational use statute does not apply because it does not cover instances when a landowner permits to shoot targets on their property.

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The COVID-19 crisis has essentially shut down large portions of society in Virginia and across the United States. To prevent – or at least slow – the spread of the virus, state governors across the country implemented a variety of stay-at-home, or shelter-in-place, orders. In Virginia, Governor Northam’s executive order requires that non-essential businesses close and that residents stay in their homes, with a few limited exceptions:

  • To seek medical attention
  • To work
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Historically, under the theory of sovereign immunity, private citizens were not permitted to file lawsuits against the government. Sovereign immunity left citizens with no recourse against the government in Virginia personal injury accidents involving government officials. To address the fundamental unfairness of sovereign immunity, the government enacted the Federal Tort Claims Act (FTCA). The FTCA provides citizens with a mechanism to hold the federal government and its employees liable for their negligent actions. However, the FTCA has several important exceptions, most notably the “discretionary function” exception.

The discretionary function exception can significantly limit a Virginia injury victim’s right to recover against the government. This exception bars lawsuits against the federal government that are a result of the government actor’s judgment. Legislators included this exception in an attempt to prevent “judicial second-guessing,” and Virginia plaintiffs are tasked with overcoming a two-step inquiry before their lawsuit can proceed.

The first step in the inquiry requires the court to decide whether the challenged action was a discretionary one. The court will look at if the actor’s negligent act involved a matter of a choice or judgment. If the court finds that the decision was discretionary, they will then evaluate public policy concerns and determine whether the decision was grounded in social, political, or policy matters. If so, immunity may attach. The second prong is very broad, and many cases fail at this step. If a Virginia plaintiff’s claim meets these two prongs, their case will be able to proceed.

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