Virginia Supreme Court Considers Evidence Necessary to Get Gross Negligence Case to a Jury
Recently, the Virginia Supreme Court issued an opinion in the case of Elliott, Administrator of the Estate of Smith v. Carter. The opinion was authored by Justice Goodwyn and flowed from an appeal of a case that was originally dealt with in the Circuit Court for Richmond County.
The case came out of the tragic drowning death of a 13-year-old Boy Scout, Caleb Smith. Smith was on an overnight camping trip with other members of his Boy Scout Troop along the Rappahannock River near Sharps, Virginia. Smith, who was unable to swim was in the process of taking swimming lessons and had received one from Carter, who was the Senior Patrol Leader for the Troop. Carter at the time of the accident was 16 years old.
Just prior to the incident that resulted in Smith's death, Carter had led Smith and two other Boy Scouts out into the river on a partially submerged sandbar. One of the two other Scouts was able to swim while the other was not able to do so. At some point after getting approximately 150 yards into the river, Carter and the Boy Scout that could swim decided to swim back to shore. Smith and the other Scout, who was not able to swim, were instructed to walk back to shore the same way they had come out into the river, along the sandbar. As Smith and the other Scout walked back to shore along the sandbar, they both fell into the river in an area where the water was too deep for them to stand. Smith yelled out to Carter for help and Carter tried to swim back to rescue him. Unfortunately, Smith was not able to be rescued by Carter nor three adult Scout leaders who attempted to help out. As a result of this incident, Smith drowned.
Initially, Elliott as the Administrator of Smith's Estate filed a wrongful death action against Carter, four adult scout leaders, the Boy Scouts of America, and the Heart of Virginia Council alleging that there was a failure to properly supervise Smith. The defendants filed a Demurrer that asserted charitable immunity. The Court granted this Demurrer and gave Elliott leave to amend.
In the Amended Complaint, Elliott alleged both gross and willful and wanton negligence by Carter and gross negligence on the part of the four adult Scout leaders. Elliott apparently nonsuited the actions against the Boy Scouts of America and the Heart of Virginia Council.
The remaining defendants propounded Requests for Admissions upon Elliott. Based on Elliott's responses to the Requests for Admissions and the allegations in the Amended Complaint, Carter and the four adult Scout leaders moved for summary judgment. They argued that based upon undisputed material facts that there was no gross negligence because there was not a complete lack of care alleged and the danger of drowning was open and obvious.
A hearing was held and supplement briefing was provided by the parties. Following the hearing and consideration of the supplemental briefs, the Court granted the Motion for Summary Judgment as to all defendants. The trial court found that the facts failed to support a claim for gross negligence stating that in Virginia "there is not gross negligence as a matter of law where there is even the slightest bit of care regardless of how insufficient or ineffective it may have been." The Court noted that there was evidence that Carter did try to save Smith. The Court also noted that the facts as pled and that existed in this case would be sufficient to submit the case to a jury on the question of simple negligence.
Elliott appealed to the Supreme Court only as to Carter, noting that the Circuit Court erred in granting summary judgment and finding that as a matter of law, the jury would be unable to find that Carter's actions constituted gross negligence.
In its analysis, the Virginia Supreme Court relied upon long-standing Virginia law with regards to gross negligence. It stated "gross negligence is a degree of negligence showing indifference to another and an utter disregard or prudence that amounts to a complete neglect of the safety of such other person." Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004). The Supreme Court also relied on the Chapman v. City of Virginia Beach case found at 252 Va. 186, 190, 475 S.E.2d 798. It quoted language from the Chapman case language that indicates that gross negligence "amounts to the absence of slight diligence, or the want of even scant care."
The Virginia Supreme Court also agreed that in most instances, the question of whether gross negligence was established is a matter of fact to be decided by a jury. However, the Virginia Supreme Court also reinforced long-standing Virginia law indicating that where individuals with reasonable minds could not differ on the establishment of such negligence, then it is the Court's duty to rule. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987).
The Virginia Supreme Court went on to refine its standard for gross negligence. It stated that "the standard for gross negligence [in Virginia] is one of indifference, not inadequacy, . . . " They very clearly stated that a claim for gross negligence "must fail as a matter of law when the evidence shows that the defendants exercised some degree of care." Kuykendall v. Young Life, 261 Fed. Appx., 480, 491 (4th Cir. 2008).
The Virginia Supreme Court was impressed by the fact that Carter did exercise a degree of care in his supervision of Smith and the other boys. There was no allegation that Smith had difficulty getting out into the middle of the river while walking on the sandbar with Carter. The Virginia Supreme Court also relied upon the fact that there was no allegation that Carter had knowledge of any hidden danger posed by the sandbar, the river or its current. The Court also relied upon Carter's instructions to Smith and the other boy to go back the way that they had originally taken. There was no evidence that conditions in the river or the sandbar had changed in such a way that it would have been more dangerous for the boys going back than it was going into the river in the first place. The Court also relied upon the fact that Carter tried to swim back to assist Smith once he fell off the sandbar. The Court believed that this was indicative that Carter was close enough to be able to render assistance at the time that Smith fell into the water. All of these facts were convincing to the Court on the issue of showing some level of care.
There are several takeaways that we can draw from this case:
- Where there is evidence that the defendant exercised some degree of care, a claim for gross negligence should fail as a matter of law as long as people with reasonable minds cannot differ on the degree of care shown.
- Defense counsel should be aggressive in trying to utilize Requests for Admissions and in turning the Plaintiff's allegations back against him where appropriate. The Virginia Supreme Court has shown that when set up correctly, motions for summary judgment can and should be granted.
- Each case in Virginia continues to be decided upon its own individual facts, merits, and circumstances. Even though Virginia is not an easy state in which to obtain summary judgment, it can happen under the right circumstances.
If anyone has questions following their review of this case summary, please do not hesitate to contact Terrence L. Graves at 804-783-7276 or tgraves@sandsanderson.com.
