(Posted October 12, 2018) Yesterday, while I was on the road, the Supreme Court of Virginia handed down two important opinions. Let’s check them out.



In a certified-question case from the Rocket Docket, the justices explore the source of a legal duty in the context of asbestos litigation. The appeal is Quisenberry v. Huntington Ingalls Inc.

For 35 years ending in the late 1970s, a man named Bennie Plessinger worked at Newport News Shipbuilding, the predecessor to Huntington Ingalls. Like many shipbuilders, he worked in an asbestos-laden environment. After his shifts, he came home, shed his work clothes, and changed into something more comfortable.

Unfortunately, those clothes contained asbestos fibers. In the ordinary course of daily life, his family was exposed to those fibers. His daughter, in particular, inhaled them when she did her father’s laundry for 15 years starting in 1954.

Late in 2013, the daughter received a dreadful diagnosis: mesothelioma, caused by her exposure to that asbestos. She died of that awful disease in 2016. Her personal representative sued in state court; Huntington Ingalls removed the case to U.S. District court. The federal judge assigned to the case decided to consult the justices on this question (as the SCV rephrased it to facilitate the analysis):

Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?

This question produces a sharp split on the court. Senior Justice Millette writes the opinion of the court, joined by Justices Mims, Powell, and McCullough. The majority answers the question in the affirmative.

The majority begins with the ancient tort-law maxim, sic utere tuo ut alienum non laedas (loosely, “Use what’s yours so as not to harm others.”). Four years ago, in RGR, LLC v. Settle, the court applied that doctrine in holding that a person or entity owes that duty “to those within reach of a defendant’s conduct.” This in turn requires “a sufficient juxtaposition of the parties in time and space to place the plaintiff in danger from the defendant’s acts.”

This facially presents a problem for the personal rep; his decedent didn’t work at the shipyard and hence wasn’t juxtaposed (literally, side-by-side) with the place where the asbestos was. The majority finds this to be a distinction without a difference. The shipyard created a hazardous condition that turned out to be portable. It could have provided its employees lockers, changing rooms, and showers to prevent spread of the risk, but didn’t. It was thus foreseeable that its employees would travel home and spread the danger to others.

The court today rules that this foreseeable risk of harm created a duty on the shipyard to protect the daughter from the danger that asbestos carries, so the personal rep may maintain an action against the shipyard for this claim.

The chief justice is not sold on this logic:

Today a majority of the Court: (1) eviscerates the well-established tort concept of particularized duty; (2) conflates duty and proximate cause by relying on foreseeability to determine whether a duty exists; (3) undermines the Workers’ Compensation Act, Code § 65.2-100, et seq., a carefully balanced bargain defining how injuries arising from the workplace are to be compensated; (4) creates a new cause of action in territory that should be the domain of the legislature; and (5) creates a duty to a potentially limitless class of plaintiffs. This opinion adopts the concept of duty to mankind generally, an empty duty “owed to all the world,” and is unprecedented in Virginia. I respectfully dissent.

Yesterday’s opinion and dissents (there’s another one, as we shall see) turn out to be a robust discussion of the merits of RGR, another highly contested 4-3 ruling. This latter concept is a key element of tort liability, but it’s relevant only to the proximate-cause discussion. Duty is a question of law, and the company’s duty is not defined by foreseeability. Otherwise, he warns, a defendant’s duty is limitless.

Justice McClanahan joins in the chief’s dissent, and pens one of her own. (Justice Kelsey signs up for both dissents, too.) She argues that RGR really isn’t relevant to this decision. She cannot square the facts of this case with the juxtaposition requirement, and rejects the idea of a “traveling hazard.”

Followers of what’s been called “Netiquette,” the etiquette of the Internet, know that typing in all caps is considered shouting. We don’t use all caps in the appellate world, unless quoting a printed warning or citing a treatise; something innocuous like that. Justice McClanahan doesn’t shout in her dissent, but she comes close. The way she does that is by using italics for emphasis. Read her roughly eight pages of text and you’ll find a dozen or so instances where she has added italics to a quote, or has used them to emphasize her own passages. In the genteel world of judicial writing, this is what passes for a really-most-sincerely strong view.

I’ll add one last point about this case. Senior Justice Millette sat in for Justice Goodwyn. That’s no doubt because Justice Goodwyn’s wife works at a law firm that represented the shipyard in this appeal; he routinely recuses himself from all of that firm’s cases.

Back in 2014, when the Supreme Court resolved RGR, Justice Millette joined the majority, ruling that one can owe a duty to the world, so long as the risk is foreseeable. Justice Goodwyn joined Justice McClanahan’s dissent there. I have no reason to believe that Justice Goodwyn’s views have changed in the last four years. That means that that recusal was probably case-dispositive here. It also portends that if another appeal presents this precise issue and no one on the court is recused, this doctrine may not survive; yesterday’s 4-3 may morph into 3-4.


Criminal law

A dramatic story that fortunately did not end in tragedy underlies Secret v. Commonwealth, and appeal of convictions for arson and attempted murder.

Secret was a temporary resident at a Louisa County site called the Acorn Community. From the brief description in Justice McClanahan’s opinion, it looks to me like a commune. The community centered on a lodge that contained dormitory-style residences, a kitchen, offices, and a dining room.

Secret stayed at the site for a few weeks in the autumn of 2013 at the invitation of one of its members, living at a campsite instead of in the lodge. He asked to stay on, but some of the members weren’t comfortable with what they felt was erratic behavior. The group told Secret that he’d have to find another place to live.

Two weeks later, a member of the group smelled smoke in the lodge in the predawn hours. Cries of alarm quickly spread, and the nine people in the lodge managed to scramble out – four of them by clambering out of second-story windows and then dropping to the ground below. Everyone got out safely.

An arson investigator quickly suspected that the fire was not accidental, and attention soon focused on Secret. The investigator arranged to interview him at a local sheriff’s office. Secret came of his own volition, and wasn’t restrained in the interrogation room. During initial questioning, he gradually began to inculpate himself. The investigator stopped the questioning and issued Miranda warnings. Secret indicated that he understood. When the investigator asked if Secret was willing to continue to speak without a lawyer, the reply was, “Sure.”

I’ve often marveled at decisions like this. Any criminal-defense lawyer would tell a person in Secret’s situation, “You have the right to remain silent. Use it!” But no; there must exist a deep longing to tell one’s tale. Secret did just that, and found himself on the business end of a series of indictments.

The real battle in this appeal is the motion to suppress. The trial court agreed to suppress Secret’s initial, pre-Miranda-warning, statements. But it found that the later inculpatory information was suitable for jurors’ consumption. A predictable conviction, and an equally predictable affirmance in the CAV, ensued.

Yesterday, the Supreme Court unanimously affirmed. The court evaluates the suppression motion in the context of two SCOTUS decisions, Oregon v. Elstad and Missouri v. Siebert, and finds that the investigator’s questioning was proper. The Siebert decision proscribes a deliberate two-step questioning procedure, where police conduct un-Mirandized interrogation, then Mirandize the suspect and beat him over the head with his prior statements. The trial court ruled that that wasn’t what happened here, especially as the arson investigator testified credibly that he had never heard of such a tactic.

The justices rule – in a matter of first impression – that this is a factual finding, so the standard of review is more lenient: the court will reverse only if the decision is plainly wrong or without evidence to support it. Given the record here, and the trial court’s factual findings, the justices have no difficulty concluding that the interrogation was permissible. The court goes on to affirm the finding that Secret’s subsequent inculpatory statements were voluntarily made.

There’s one last hurdle. Secret contended that there was no evidence of intent to commit murder – just proof of “general malevolence.” Because I don’t wade often into criminal-justice waters, I hadn’t heard this phrase before, but there’s caselaw on it.

The Supreme Court turns this contention aside. Although Secret may not have known the identities of those who snoozed inside the building, he knew that there would likely be people there, and that his setting the building afire, using plenty of flammable accelerants, would foreseeably imperil someone’s life. Justice McClanahan cites this particularly apposite holding from a California case: “The mental state required for attempted murder is the intent to kill a human being, not a particular human being.”