Each Tuesday, the Supreme Court of Virginia posts information about the petitions for appeal that it has granted over the previous week. The Supremes heard writ arguments last week (h/t to Emmert–and, by extension, Alan Cooper–for that link to the writ docket), and have since granted one petition for appeal:
MORRIS v. CHEDDA, Record No. 101277, on appeal from the Circuit Court of Charlottesville.
Counsel
- Richard Armstrong (Lenhart Obenshain PC) and Deborah C. Wyatt (from Wyatt & Associates, PC) for the appellant
- John P. Cattano and Dustin T. Rosser (from the Cattano Law Group, P.C.) for the appellee
Assignments of Error
- The trial court erred in refusing to instruct the jury that a landowner’s common law duty to warn invitees, when the landowner is personally aware of a hazard on his property that is not open and obvious, cannot be delegated.
- The trial court erred in refusing to give a curative instruction after a defense witness testified that Plaintiff had stated he had insurance.
- The trial court erred in refusing to permit Plaintiff to rebut the defense testimony that he had stated he had insurance.
- The trial court erred in refusing to declare a mistrial given the wholly uncured, unmitigated, and, as a result of the court’s rulings, uncontradicted defense testimony that Plaintiff had stated he had insurance, especially where the defense had assured the court in advance that this witness would not mention insurance and the court itself acknowledged that the mention of insurance would prompt a mistrial.
Initial Thoughts
Insurance? Yikes.*
It’s always tough to appeal a jury verdict–most favored position known to the law and all that–but if you have to do so, this looks to be the way to go: refused jury instructions, a denied request for a mistrial, and proffered but excluded rebuttal testimony. Assuming that everybody did what they were supposed to in the trial court to preserve these points, Morris may tee up some winnable questions of law.
* I participated in a mock trial once before Judge Urbanski. Although I have no recollection of doing so, I am reliably informed that I mentioned an “insurance” investigator in my opening. Judge Urbanski immediately stated that he in real life he’d have declared a mistrial, but graciously allowed us to proceed with the trial ad exercise. There ended the lesson.