Monday, October 25, 2004

Fourth Circuit holds employee's violent propensities could reasonably have been discovered

In Blair v. Defender Serv. Inc., No. 03-1280 (4th Cir. October 25, 2004), the Fourth Circuit affirmed in part and reversed in part a summary judgment in favor of a janitorial services firm (ironically named "Defender") whose employee physically assaulted the plaintiff, a 19 year-old college student, while she attended classes at Virginia Tech.

Applying Virginia law, the Court affirmed dismissal of the respondeat superior claim, finding that the district court correctly ruled that physically attacking someone is outside the scope of a janitor's duties.

The plaintiff's negligent hiring and retention claims were wrongfully dismissed, however, because the facts showed that Defender failed to conduct a background check of the employee on three different occasions despite a contractual obligation to Virginia Tech to perform such a check. Also, a genuine issue of material fact existed as to whether Defender should have known or discovered the employee's dangerous propensities as a result of a protective order issued eleven months earlier. The 2-1 majority placed emphasis on expert testimony proffered by the plaintiff that a background check would have indicated the existence of the protective order resulting from a criminal complaint.

Judge Widener would have affirmed the entire decision. In his dissent, he makes two good points. First, prevailing Virginia law does not obligate an employer who has asked about criminal history and been told that none exists and who has no reason to suspect a criminal record to investigate a prior criminal record "in the exercise of reasonable care."

Second, the Judge found that the temporary nature of a protective order (6 months) makes it unlikely to be discovered in an ordinary background check. Adding to the difficulty in this case was the fact that the protective order was issued between stints of employment, and it was not issued in the attacker's county of residence. Judge Widener concluded that
[t]he upshot of the majority decision is that we are engrafting on Virginia law a requirement that in each case of employment a prospective employer must search for even unsuccessful misdemeanor prosecutions in the records of the courts not of record of the county of residence of the applicant, here Giles County, although not the same as the place of employment, here Montgomery County. In default of such a search we hold the employer may be found negligent. In my opinion this is an unreasonable burden to place on employers. Far worse is the disqualification from employment placed on youth by our decision.

First opinions of the new term

The W.Va. Supreme Court of Appeals released four new opinions on Friday. In Pittsnogle v. West Virginia Dept. of Transportation, No. 31619 the Plaintiffs were two women who argued they should not have been fired for refusing to attend a three-week skills training course in Winfield, WV because they were the primary caretakers of young children. All employees in their positions, men and women, were required to attend, so the women could not claim true sex discrimination. Instead, they claimed the policy adversely impacted a subgroup of women--those with small children.

The Circuit Court of Berkeley County dismissed the suit on summary judgment because the Plaintiffs failed to show, through statistics or otherwise, that the policy negatively affected women. 4 of the 5 justices agreed. Justice McGraw dissented.

Also decided on Friday was a case involving a land sale contract in which one of the parties claimed impracticability of performance. In Waddy v. Riggleman, No. 31707, the Court, following the modern trend, officially adopted the Restatement (Second) of Contracts § 261 and held that
under the doctrine of impracticability, a party to a contract who claims that a supervening event has prevented, and thus excused, a promised performance must demonstrate each of the following: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not agreed, either expressly or impliedly, to perform in spite of impracticability that would otherwise justify his nonperformance.
The opinion, authored by Justice Davis, does an excellent job explaining each of the elements of this doctrine.

The Court also issued opinions in Campbell v. Smith regarding rehabilitative alimony, and Pullin v. State, discussing the doctrine of invited error.

Saturday, October 23, 2004

"No-show" jurors receive rebuke and fine

You have to love U.S. District Judge Irene Keeley. She doesn't take any crap. This article in the Clarksburg Exponent-Telegram notes that four jurors who failed to show for a September 16 trial were fined $50 and publicly rebuked last week. We need more judges like her on the bench.

Thursday, October 21, 2004

Scanned briefs now available at W.Va. Supreme Court's web site

A colleague just pointed out something new on the November 9, 2004 Argument Docket of the West Virginia Supreme Court of Appeals web site: scanned briefs in PDF format! Under the able leadership of Supreme Court Clerk Rory Perry, the high court continues to advance the use of technology to make the law more accessible to practitioners and the citizens in general.

Christian attorney authors book

This article in the Daily Mail tells about a West Virginia attorney who has authored a religious book entitled "What's My Excuse for Not Being a Christian? 12 Myths of Christianity." The book, authored by Jackson Kelly attorney Brad Crouser, is available in paperback at for $13.95. It has received several excellent reviews from readers. I intend to pick up a copy, and I will post my thoughts about it after I read it.

West Virginia to develop public Internet grid

The Dominion Post notes here that the State of West Virginia has authorized the development of the first state-sponsored open public Internet grid computing effort. The project is designated the Global Grid Exchange, and, according to the West Virginia High Tech Consortium, the grid will be a "cost effective computation infrastructure to drive innovation in the commercial, government and academic sectors across the state and around the world."

The Global Grid Exchange will "utilize the power of the Internet to aggregate the idle or unused computer processing resources throughout the state." The article is thin on details of how the system will work, but I believe it would be similar to the SETI@home project--one of the more popular grid computing initiatives.

Wednesday, October 20, 2004

Fourth Circuit coming to Morgantown

I learned from this post at the Southwest Virginia Law Blog that a panel of the Fourth Circuit is coming to the WVU College of Law to hear oral argument on three cases. Here's a link to the docket (pdf).

We have oral argument scheduled in a Fourth Circuit appeal next week, and I was almost mad that we weren't invited to argue in Morgantown until I realized it's about the same distance to Morgantown as it is to Richmond. That's the odd thing about living in the panhandle.

Monday, October 18, 2004

W.Va. State Bar calls upon Supreme Court candidates to adhere to ethics rules

You know your statewide judicial campaign is getting dirty when the state bar unanimoulsy passes a resolution reminding the candidates of their ethical obligations under the Rules of Professional Conduct and the Code of Judicial Conduct. That's exactly what happened this past weekend at the Board of Governor's meeting. The following resolution was passed:


WHEREAS, the West Virginia State Bar is an agency of the West Virginia Supreme Court of Appeals, and

WHEREAS, the West Virginia State Bar is a mandatory Bar and all lawyers licensed to practiced in West Virginia are required to be members, and

WHEREAS, the West Virginia State Bar is governed by representatives elected by its membership, who are known collectively as the Board of Governors, and

WHEREAS, the Board of Governors of The West Virginia State Bar wishes to express its concern over the conduct of the candidates seeking election to The West Virginia Supreme Court of Appeals, and

WHEREAS, the nature and tenor of some of the campaigning and advertising for both candidates neither enhances the status of the judiciary nor the credibility of our system with the public at large, and

WHEREAS, the Rules of Professional Conduct provide in pertinent part:
Rule 8.2 – Judicial and Legal Officials.
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, . . . or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
WHEREAS, the Code of Judicial Conduct provides in pertinent part:
Canon 5 - A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity.
A(3) A candidate for judicial office
(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, . . .
(c) … shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing …”

NOW, therefore be it RESOLVED that the Board of Governors of The State Bar calls upon both candidates for The Supreme Court of Appeals to strictly adhere to the Rules of Professional Conduct and Code of Judicial Conduct. Failure to do so undermines the confidence of The Bar and the Public in the administration of Justice and in the integrity, independence and the impartiality of the judiciary.
The conduct of the candidates (and I mean all of the candidates) in this State Supreme Court judicial campaign exemplifies why reforms are needed in the way we choose our judges and justices.

Friday, October 15, 2004

Google Desktop Search is nice, but...

I tried out the Google Desktop Search, and I like it. But, I still like Copernic Desktop Search better because it searches your PDFs and e-mail attachments. Google will keep adding file types and features, and eventually, I am sure they will catch up. For now, I'm still in the Copernic camp.

Desktop search mania has hit cyberspace. Here is a review from ZDNet of several programs, a few of which I have not tried. The article was published right as Google's product was released yesterday, but I'm sure they would still have put Copernic on top.

Wednesday, October 13, 2004

Job Descriptions 101

Here is a post from George's Employment Blawg that mentions a great resource right here in my own cyber-backyard...

Tuesday, October 12, 2004

Job Descriptions 101: With A Strong Emphasis on Meeting ADA Requirements!

Ever scanning the Internet for valuable websites, I came across this highly useful website for creating job descriptions, which was designed specifically to meet ADA requirements. Although I think I have listed this website before, I just discovered this very useful part that goes into detail on how to design a job description that meets

ADA requirements
. It addresses such issues as how to identify an essential function and what a job analysis is. This website also provides information on how to use job descriptions to help in the accommodation process.

My personal favorite was the link that I found here to America's Careeer InfoNet, which even provides "450 career videos showing real people doing real work." Some of my favorite videos include the one describing attorneys at work : - )

Saturday, October 02, 2004

Jumping the gunman (and suing the gun maker)

This report notes that pro-gun groups are lauding the ruling of Kanawha County Circuit Judge Irene Berger to dismiss a lawsuit against gun manufacturer Sturm Ruger & Company.

The suit was brought by two former New Jersey police officers who sued the gun maker and a South Charleston pawnshop two years ago, arguing they should pay damages because a Ruger handgun sold at the shop had been used to shoot them in January 2001. By the time the gun got to the pawnshop, it had changed hands four times.

According to this report at, a clerk at the South Charleston pawn shop "sold the gun and 11 others to taxi driver Tammi Songer even though another man, James Gray, picked out the guns and carried them out the door. Songer later said Gray -- a felon who could not legally buy guns -- had paid her cash to act as his purchaser."

The pawnshop settled with the officers for $1 million in June.

Judge Berger clearly made the right choice here. It defies all common sense to impose liability on a gun manufacturer for injuries caused by a criminal who shoots someone--especially where the gun was sold multiple times before the criminal got his hands on it. Wasn't Rule 11 was designed for suits like this? Where is the sense of outrage in the legal community?