By: Dawn Boyce and Emily Blake
Officer, who used pepper spray only once with a burst at the arrestee’s forehead, while attempting to take control of a driver during a traffic stop did not violate Fourth Amendment. Omeish v. Kincaid, 2023 U.S. App. LEXIS 30403 (4th Cir. 2023).
The Fourth Circuit affirmed the District Court’s grant of summary judgment to the officer, finding that there was no clearly established legal precedent set by the Supreme Court, the Fourth Circuit, or the general consensus of persuasive authority governing the question presented to inform a reasonable officer that such use was unlawful under the facts of the case.
The arrestee repeatedly failed to comply with the officer’s commands during a lawful traffic stop and resisted his attempts to arrest her on the side of a busy road, a location dangerous to the officer. Because the court found there was no violation of a clearly established right, it did not address whether the use of paper spray under the circumstances was excessive.
In Washington, D.C., the statute of limitations for personal injury is three years from the incident date. However, as in most places, the outbreak of the Covid-19 pandemic resulted in lockdowns and temporary closures of the judiciary. As such, the statute of limitations was tolled for a certain period of time in many jurisdictions.
In Washington, D.C., that tolling period is 378 days between March 18, 2020 and March 30, 2021.
The D.C. Superior Court suspended its operations by emergency order on March 18, 2020. Over the next year, it filed order after order re-asserting the period of Judicial Emergency until on March 31, 2021, it issued an Order confirming that the tolling period was over. The Order immediately before that, dated January 13, 2021, set March 30, 2021 as the expiration date for the Judicial Emergency. The exceptions are for cases subject to a statutory moratorium and for writs of restitution, per Rule 16.
If the date of incident in your case was before March 18, 2020, the injured plaintiff will have three years, and then an extra year + 13 days, or a leap year + 12 days (378 days total as the tolling period), to file his lawsuit.
This District of Columbia Court of Appeals recently affirmed summary judgment in favor of the defendants in a case arising out of property damage claimed to have been caused by tree trimming. The undisputed material facts demonstrated the work was performed by an independent contractor. In general, “when a person hires another to do certain work, reserving no control over either the work or the workmen, a relationship of contractee and contractor exists . . . and the contractee is not liable for injuries to a third party resulting from the work of the independent contractor” Levy v. Currier, 587 A.2d 205, 209 (D.C. 1991).
On appeal, Plaintiffs/Appellants argued a jury question existed as to whether tree trimming constituted inherently dangerous work, noting “[t]he existence of [a] danger and knowledge of it by the employer are normally questions of fact for the jury.” District of Columbia v. Howell, 607 A.2d 501, 505 (D.C. 1982). The Court of Appeals, however, held the burden is on the plaintiff to show that the particular work in question is an inherently dangerous activity and because the appellants submitted no evidence or precedent to establish that the tree work performed in the case at hand was “inherently dangerous” the trial judge properly found in favor of the defendants.
Anna G. Zick successfully represented the defendants in the trial court and on appeal.
Egbon v. Smith, Case No. 21-CV-0592 (Decided November 7, 2023).
The Firm congratulates John D. McGavin again on his recognition as the 2024 “Lawyer of the Year” in Personal Injury Litigation – Defendants in Washington, D.C.
Best Lawyers has been regarded by lawyers and the public for more than 40 years as the most credible measure of legal integrity and distinction in the United States and recognition signifies excellence in practice.
Will Miller, an associate at the firm, successfully prevailed in the Virginia Court of Appeals after the Plaintiff appealed from the circuit court.
In the underlying case, the Plaintiff sought $2 million in damages for alleged personal injuries, including a traumatic brain injury, arising from a motor vehicle accident. After a two-day jury trial before the Arlington County Circuit Court, the presiding judge granted the Defendant’s motion to strike Plaintiff’s evidence and dismissed the complaint with prejudice.
The Plaintiff’s appeal challenged the circuit court’s rulings on Defendant’s motion to strike Plaintiff’s expert witness designations, Plaintiff’s motion to continue, Defendant’s motion to strike Plaintiff’s evidence, and several additional evidentiary rulings on issues that arose during trial. After reviewing the briefs and record, the Court of Appeals panel unanimously held that oral argument was not needed in this case, and rejected Plaintiff’s assignments of error and dismissed the appeal.
The Fairfax Law Foundation held its Annual Run for Justice Heroes & Villains 5k on Sunday, April 23, 2023. The Fairfax Law Foundation is a non-profit organization dedicated to providing Fairfax County residents with direct access to the legal community through educational and charitable activities. Our firm is a regular sponsor of the event.
We had a great turn out with volunteers and participants, including Melissa Katz, Dawn Boyce, Giff Hampshire, Mary Meraw, Shari Sicuranza and daughter Chrissy, Brenda Brichant, Tracy Kyle, Makenna Rold, and Sahana Ven. Melissa Katz serves on the Board of Directors.
The firm is proud to announce that John D. McGavin, our senior partner, is this year’s recipient of the Virginia Association of Defense Attorney’s (VADA) Award for Excellence in Civil Litigation! VADA instituted this Award more than 20 years ago to honor a distinguished jurist, civil litigator, or other appropriate person who exhibits the following: 1) The highest standards of ethics, demeanor and temperament; 2) Exemplary conduct inside and outside the courtroom; 3) Courtesy and fairness in dealing with others; 4) Work of the highest quality; and 5) Such other criteria as the Board may determine are appropriate, such as community involvement; judicial, bar-related and educational activities; and participation in activities that improve the civil justice system.
A graduate of the University of Virginia and the William & Mary Law School, John has distinguished himself over his more than 40 years in practice as one of the preeminent civil defense trial attorneys in Virginia, Maryland and D.C. He is a Fellow of the American College of Trial Lawyers, a Fellow of the Litigation Counsel of America, a Fellow and Immediate Past President of the Virginia Law Foundation, and a former member of the Steering Committee of the Boyd-Graves Conference. John has been recognized by his peers as one of the Best Lawyers in America, a Super Lawyer, one of Virginia’s “Legal Elite,” a “Leader in the Law,” and as a member of Virginia Lawyers Weekly’s “Lawyers Hall of Fame.” John has been a longstanding member and champion of VADA, serving on its Board of Directors and as President in 2004-2005. John will be presented with this Award at VADA’s Annual Meeting in Virginia Beach. Congratulations, John!
Dawn Boyce has been appointed by the Supreme Court of Virginia to serve on the Virginia State Disciplinary Board for a three-year term beginning July 1, 2023. The appointment comes following six years of service on the Virginia State Bar Standing Committee of Ethics, including three years as Vice Chair, and four years of service on the Fifth District, Section III, Disciplinary Committee.
MBBTK is proud to announce that Emily Blake has been named a Partner of the firm. Emily is licensed to practice law in Virginia and Maryland. She defends a wide range of civil liability actions for both individuals, corporations, and local government entities. She is on the Fairfax County General District Court Committee and active with the Virginia Association of Defense Attorneys.
Martin Schubert, a partner at the firm, recently tried a two day jury trial to verdict in the Fairfax County Circuit Court, securing a very favorable outcome in the case.
In this rear-end motor vehicle accident, the defense had admitted negligence in the case. The vehicle photos showed limited damaged amounting to essentially a scuffed bumper. The Plaintiff maintained that she continued to have orthopedic issues years post-accident and she called her treating orthopedic surgeon on the issue of damages. She maintained ongoing neck pain into her arm. Evidentiary issues arose during trial based on defense objections raised, precluding the introduction of certain medical bills into evidence. The Plaintiff ultimately elected to put no medical bills into evidence.
In closing, the Plaintiff sought $240,000 in damages, well above the policy limits for the insured. The defense suggested $5,000 in damages. After relatively short deliberations by the jury, it awarded a mere $1,000. Plaintiff was offered $25,000 pretrial after a $375,000 demand. No appeal was noted.
