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CNBC Says Virginia is #1

     A retail store manager hired me to represent her for injuries. She had been the first person to the store that morning. It was still dark. She entered the store and made her way to the light switch.

     Unbeknownst to her, the hired cleaning company had worked late and had just left the premises.  The newly waxed floor was still wet. My client couldn’t see the floor because it was between the door and the light switch.

     She fell, in the dark, on the slippery floor. Her fall was so severe that she ruptured two discs. Because the cleaning company was contracted by the store, we made a claim for her worker’s compensation benefits, as well as a 3rd party claim against the cleaning company.

     The Virginia Supreme Court ultimately ruled that my client’s sole claim was for a job injury under workers compensation. The cleaning company; while not employees of the store, was part of the “common enterprise” of the store. Thus, no third party personal injury claim.    

     If you are a business, then CNBC says that you want to be in Virginia. For 2011, Virginia was picked as being ranked number 1,  as the top state for business.

     Last year,Virgina was number 2. That’s got to be good because no one takes one of those big foam hands to football games, with two fingers sticking up.

     CNBC cites 10 categories that it considers, in arriving at it’s pronouncement for Best State for Business. Things like quality of life and technology; Access to capital and a workforce help make businesses successful.

     Two other important items of the ten include “business friendly” and “Cost of doing business”. Those can be broadly construed. 

     In most states, my client’s story above would have meant that the expense of her injuries would have been paid by the cleaning company. Her employer’s insurance company would have even been reimbursed.

     Instead, her recovery under workers compensation was limited; and the true responsible party was not “hit” with the business expense of paying for creating that dangerous condition, without warning. My client received very little for her injuries under workers compensation, because of the laws in Virginia.

     What is a cost of doing business. Well, if you do something that is reckless as a business, like hiring a driver without a license or someone who regularly does drugs, then you might be responsible for punishment damages.

     In many states, reckless and willful conduct is punishable by money damages, according to what will truly punish that business. Usually, something related to assets and profits are introduced to the jury, to determine what is real punishment, and to send a message.

        In Virginia, there is a limit on such punishment damages. Assets and ability to pay are not part of the equation in determining punishment/punitive damages.  Under Virginia Code 8.01-38.1, the maximum punishment is 350K. If a company is doing a billion in profit, you aren’t punishing them by a verdict or payment of 350K.

     As part of the “10” though, this is called “Cost of doing business”. A business can hire drunk drivers or multiple convicted felons who have previously caused injury by the same conduct, and the punishment damages are still only 350K.

     I think it’s great that Virginia is number one in business. Conversely, the basis for being number one could have adverse effects on the citizens. It might not simply mean we have more jobs or economic prosperity if we are rewarding bad actors in business.

Donation Meters

     With the difficulties of the economy, it’s no surprise that there are people standing in the middle of the road, asking and begging for money. Part of me wants to help and the other part always wonders if that person is needy or lazy. Ronald Reagan used to always say about everything, “Trust but verify”.

     The act of begging is really Panhandling. It is considered a class 4 misdemeanor with a maximum fine of $450. Not surprisingly, it is rarely enforced.

     The City of Virginia Beach has come up with an idea for a solution, at the Oceanfront. They are installing eight “Donation Meters” for people to be able to give, and know that it will go toward the homeless. The meters come with the following statement:   “The next time you feel compelled to give, the city and its businesses urge you to please make your contributions in this special donation meter.” 

     This program is modeled after a similar idea from Denver. I wonder if the money will really get to the homeless and whether it will help those in need, who are currently panhandling? The real cause and effect is the hope that the economy will get going again and people will get back to work. Maybe these eight meters will be a start in providing employment. “Necessity is the mother of invention”.(source)

Max and Erma’s Lesson

One of my lunch spots just closed.  When I say closed, I mean that the landlord padlocked the doors for failure to pay rent. It means no more of those chocolate chip cookies and all you can eat sundae bar. When I think of that, it’s hard to believe that I can’t go to lunch there today.

In reading the article of the closing, I am reminded of differing perspectives. The lawyer for the tenant told the newspaper reporter that they were just a little behind in rent. The landlord said that it was owed 100k. To me, that seems like a big difference in viewpoint. Coming from different perspectives, the tenant may really owe “only” 3 months rent. Maybe the big amount is because the space was expensive and now, collection fees are included.

Watching the NCAA basketball championship reminded me of differing perspectives. At the end of the game, one team was leaping about and the other was walking slow or bent over in sadness.

Driving to work, I saw one bumper sticker that said “W 04” and another that  “OBAMA FOR CHANGE”. I suspect that being President is similar to  the old saying regarding a boat purchase, “the two best days are being elected, and leaving The White House, at the end of the term”.  A President always brings out completely different viewpoints.

In this blog, I haven’t said anything that brushes up against the discovery of an alternate universe. However, it’s what I face in a jury trial. It’s why there is such a range in jury verdicts.

Recently, I was attempting to get an understanding for the possible value of a knee replacement. My client now has arthritis from the crash and will need that surgery soon, and despite only being in her 30’s. I wondered if having the surgery would make someone more or less sympathetic.

One young person who recently had a knee replacement, had a hard time putting a value on such an injury. In his words, “I don’t think there’s any amount of money that is enough, for someone causing me to go through another knee replacement”.  Another person, who is about 40 years older, simply felt that having had it was no big deal. I don’t think I’d want him on any jury.

A juror takes an oath to apply the law. However, as they sit there during trial, in uncomfortable chairs, and feel neck or back pain, I know that on occasion, they may think that they are in pain and no one is paying them for it. In light of that, maybe some think that the client really should not receive much either.

In one county in North Carolina, I had come to the end of the week long trial and was waiting for the jury verdict. The Judge had me in his chambers and was just “chatting”. In the course of conversation, he went on to say that he expected a low verdict, despite the significant injuries. I asked why and he simply said, “in this county, no one has anything and they want to make sure that no one else does either”. Sure enough, the verdict came back lower than I had hoped.

All prospective jurors bring different perspectives to the jury box. Usually, they take two oaths. One before  answering questions, before being chosen as a juror; and another oath to serve, after being chosen. As a lawyer, I always try to remind them of that oath to apply the law, even above personal opinion.

Sometimes in my closing, I will tell them that I wish I could go back in the jury room with them to deliberate. They usually smile but I’m sure that they are glad that I can’t go back there. Thus, I always have to hope that application of the law can overcome perspective.  I also hope that some other restaurant will match that chocolate chip cookie recipe of Max & Erma’s.

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