ANALYSIS OF FEBRUARY 4, 2021 SUPREME COURT OPINION
(Posted February 4, 2021) On what I am reliably assured is National Homemade Soup Day, the Supreme Court of Virginia hands down a single published opinion. AlBritton v. Commonwealth is a Tort Claims Act action filed by a prison inmate who fell on a stairwell and sustained significant injuries.
The inmate filed a grievance, but the warden denied it. The prison’s grievance procedure provides for two more levels of review, each with a five-day deadline for appeal. Only after exhausting this process may the claimant file suit under the Act.
AlBritton executed an appeal notice on the third day after receiving the warden’s denial, and a corrections officer notarized it. But the appropriate official, a regional administrator, didn’t receive it within the five-day window. (Indeed, the Commonwealth asserted here that the administrator never received it.)
In the ensuing circuit-court litigation, the court agreed with the Commonwealth that an appeal must be received by the appropriate official within the five-day period to be timely. The court accordingly dismissed the suit for failure to exhaust administrative remedies. The judgment order added two more grounds for dismissal: summary judgment for lack of an actionable defect and for contributory negligence as a matter of law.
Today the Supreme Court reverses and remands the case for further proceedings. It first holds that an inmate satisfies the five-day rule when he sends an appeal within the five-day window. That is, the court applies a mailbox rule rather than a receipt rule. This makes perfect sense, because an inmate can’t control the mail system after he deposits his notice. The court remands the case so the circuit court can adjudicate whether the inmate did, in fact, send the appeal notice within five days.
The justices go on to analyze the two grounds of summary judgment. For each, the court discerns disputed material facts that preclude early disposition. The inmate makes out a triable claim of actionable negligence for unrepaired defects in the staircase. And because he steadfastly denies the allegations of contrib, the trial court wasn’t at liberty to take that issue away from the jury.
Today’s opinion contains several interesting tidbits. The court comes close to deciding a matter of first impression: whether summary judgment may be based on affidavits. There’s plenty of authority on that from circuit-court decisions and treatises, but the SCV has apparently never decided the matter. The question will have to await another day and another appeal, because the Prisoner Litigation Reform Act expressly allows affidavits when pro se inmates make claims.
The next tidbit relates to the nature of the prison’s duty. Today’s opinion notes the incongruity of applying invitee caselaw to prisoners, since they weren’t exactly invited to prison. But the parties didn’t address that issue on brief, so the court doesn’t take it up sua sponte.
The court also declines to extend to the prison context the holdings relating to actionable defects in sidewalks. In my former life as a City Attorney, I learned the narrow window of opportunity available to plaintiffs who claimed injuries due to defects in city sidewalks. Anything under about an inch and a half was too small to be an actionable defect, and anything above about 3” was open and obvious. The justices today cite with approval an earlier holding that a city’s duty to its citizens doesn’t fit in the owner-invitee context.
On remand, AlBritton still doesn’t have a lay-down tort claim. The Supreme Court points out today that the “Commonwealth’s motion for summary judgment did not assert that the alleged defect was open and obvious, thus obviating any duty to make it safe.” The court accordingly declines to address the issue. Expect that to be a major defense at trial, since the nature of the stairway defect may well have been acutely visible.
Three of these four tidbits appear not in the main body of today’s 18-page slip opinion, but in footnotes. Always read the footnotes! That’s where the goblins usually hang out.