BMHJ Blog: Legal Information, Resources, & News: Business/Commercial Litigation

Funkhouser v. Ford Motor Company: Reversal by the Va. Supreme Court – the substantial similarity test is alive and well.

Julia B. Judkins, Esquire
Jennifer E. White, Esquire
January 29th, 2013
By: Julia B. Judkins, Esquire and Jennifer E. White, Esquire

On January 10, 2013, the Supreme Court of Virginia issued its opinion in the case of Funkhouser v. Ford Motor Company. The court withdrew its June 7, 2012 opinion, decided 4-3, following rehearing of the matter on the defendants’ petition.

The recent decision, authored by Justice Powell, represents the view of the formerly dissenting justices, who were joined by Justice Millette to create a new majority which upheld the circuit court’s decision excluding the plaintiff’s expert testimony regarding other Ford Windstar fires. In its 4-3 decision, the majority holds that none of the fires identified by the plaintiff’s expert were admissible to prove the manufacturer knew or had reason to know of a dangerous condition because none met the elements of the substantial similarity test. The Court clarifies that the substantial similarity test requires proof (1) that the incidents occurred under substantially the same circumstances as the incident at issue in the lawsuit and (2) that the incidents were caused by the same or similar defects. (Pages 10 and 11.) The Court reasons that ignoring the importance of a same or similar defect, as advocated by the plaintiff, “would allow a plaintiff to attribute notice and actual knowledge to a manufacturer based on the mere existence of a generalized danger; there would be no requirement for the danger to be attributable to the manufacturer in any way.” (Page 11.)

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Virginia Supreme Court Vacates Controversial Products Liability Case

Jennifer E. White, Esquire
October 2nd, 2012
By: Jennifer E. White, Esquire

Virginia Supreme Court Vacates Controversial Products Liability Opinion

On Monday, September 17, 2012, the Virginia Supreme Court granted the appellee’s petition for rehearing in Funkhouser v. Ford Motor Company, vacating its June 2012 opinion. The Court’s original 4-3 decision proved controversial for the products liability bar and raised concerns that the decision’s interpretation of the admissibility of evidence of “similar events” could be used by the plaintiff’s bar in general negligence, premises liability, medical malpractice, and elder care cases.

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Restaurant Owner Not Liable for Criminal Acts of Third Party

Steven W. Bancroft, Esquire
July 16th, 2012
By: Steven W. Bancroft, Esquire

The general rule in Virginia tort law is that a person or business is not liable to a victim for the criminal acts of a third party. However, the rule is subject to some limitations and exceptions where the person or business has established a special relationship with the victim that entitles the victim to protection against third party crimes, or where the person or business has a relationship with the third party that obligates them to control the third party’s conduct. Examples of special relationships that have been recognized by the Supreme Court of Virginia include a common-carrier and a passenger, an employer and employee, an innkeeper and guest, and a business proprietor and its invitee.

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Survival of a Tort Claim which Seemingly Arises out of Breach of Contract

Heather K. Bardot, Esquire
March 11th, 2011
By: Heather K. Bardot, Esquire

On March 4, 2011, the Supreme Court of Virginia issued an opinion in Kaltman v. All American Pest Control, Inc., Record No. 092541, reversing the trial court’s sustaining of a demurrer. The demurrer had challenged the plaintiffs’ ability to file suit in tort against the defendant-pest control company and its employee on the basis that, since the defendants’ allegedly negligent conduct arose out of a contract to apply pesticide, the only available cause of action was breach of contract.

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Innocent Victim of Horseplay Rule Affirmed by Virginia Supreme Court

Dawn E. Boyce, Esquire
February 14th, 2011
By: Dawn E. Boyce, Esquire

In Simms v. Ruby Tuesday, Inc., 2011 Va. LEXIS 17 (2011), the Virginia Supreme Court addressed whether an innocent victim of horseplay was eligible for compensation under the Workers’ Compensation Act. Although it had long been held that injuries suffered by innocent bystanders as a result of horseplay at the workplace were compensable, this precedent was called into doubt by the court in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008). The issue in Simms was whether the actual risk test analysis articulated in Hilton had materially changed the juris prudence related to innocent victims of horseplay at work. In Hilton, the Commission found that injuries did not arise out of the employment where a co-worker turned on the power of a manual cardiac defibrillator, adjusted its energy to 150 joules, and touched the defibrillator paddles to an innocent victim. The denial of compensation sent a ripple through the workers’ compensation community and led the Commission and Court of Appeals to start denying horseplay claims.

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This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More