Tort Law

The cases below are a compilation of cases from the Virginia Supreme Court summarized by Brien Roche dealing with demurrer issues and the related topic of personal injury. For more information on demurrers see the pages on Wikipedia.

Demurrer-Statutes

See Va. Code § 8.01-273 indicating that demurrer must state grounds upon which it is based.
See Va. Code § 8.01-275 indicating that trifling defects in pleadings will not defeat claim.

Demurrer-Cases

2009—DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140, 670 S.E.2d 704.
Plaintiff sued law firm alleging tortious interference with contractual relationship where the alleged contract that was directly interfered with was one that the plaintiff was not a party to but that interference then allegedly caused damage to the plaintiff under a separate contract. The complaint did not allege that defendant intended to affect the plaintiff’s contract or that it acted for the purpose interfering with that contract. As such, the claim was demurrable and the demurrer should have been sustained. Judgment in favor of the plaintiff was reversed.

2007 Almy v. Grisham, 273 Va. 68, 639 S.E.2d 182.
Grisham and other person received several anonymous, unflattering letters. Suspecting that plaintiff was the author, these individuals engaged a handwriting expert and provided to the expert confidential school files pertaining to plaintiff’s children containing the Plaintiff’s handwriting. Plaintiff sued alleging the intentional infliction of emotional distress and related civil conspiracy. During the course of the hearing on the demurrer, the trial court improperly took judicial notice of certain deposition testimony and therefore improperly granted the demurrer as to the intentional infliction claim. Court refused to recognize a claim for civil conspiracy to intentionally inflict severe emotional distress.

2006 Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428.
Suit by guest against innkeeper for injuries resulting from criminal assault by third person occurring on the hotel property. Trial court was in error in granting demurrer to common law negligence claim in light of innkeeper’s duty to protect guest against reasonably foreseeable injury arising from third party criminal acts but the court was correct in sustaining the demurrer to the guest’s similar claim under Va. Code § 35.1-28. In this case, plaintiff was assured by the desk clerk that the hotel was a safe and secure place for his family. Plaintiff further alleged that the hotel was in a high crime area, that it attracted assaultive crimes, that criminal assaults against employees and guests were occurring and further that the hotel had been informed by the local police department and others that its guests were at risk for harm due to criminal activity. The special relationship of innkeeper and guest imposes a duty of utmost care and diligence to protect the guest against reasonably foreseeable injury from the criminal conduct of the third party.
2001 Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97, 540 S.E.2d 134.
Demurrer admits facts as pleaded and those to be reasonably inferred. Demurrer does not admit conclusion of law. In reviewing order granting demurrer, court may only look at operative pleading unless prior pleading was incorporated.

1999 Breeding v. Hensley, 258 Va. 207, 519 S.E.2d 369.
When amended motion for judgment or amended count is filed and the amended pleading is intended as substitute for original, then case stands as though original had never been filed so far as it relates to statements of fact and ruling on demurrer.

1998 Norris v. Mitchell, 255 Va. 235, 495 S.E.2d 809.
Trial court sustained demurrer and dismissed action but granted plaintiff leave to amend within 21 days. This order did not become final until that 21-day period had expired. At that point court had additional 21 days within which to amend. The non-suit taken within that subsequent 21-day period was allowable since court still had jurisdiction.

1995 Powers v. Cherin, 249 Va. 33, 452 S.E.2d 666.
Misjoinder of parties should be raised by motion to drop improper parties and not by demurrer. Misjoinder of causes of action may be raised by demurrer. In this instance, plaintiff was involved in automobile accident and thereafter was further injured by malpractice of physician in care of auto accident injuries. Where claims arise out of the same transaction or occurrence they may be joined, but these claims arose out of separate transactions or occurrences and therefore joinder was improper.

1987 Fox v. Deese, 234 Va. 412, 362 S.E.2d 699.
Demurrer sustained without further leave to amend. Amendment should be liberally allowed. Abuse of discretion in this case not to allow amendment.

1987 Duggin v. Adams, 234 Va. 221, 360 S.E.2d 832.
Demurrer admits truth of all material facts that are properly pleaded. Facts admitted are: (1) facts expressly alleged; (2) facts which are by fair intendment impliedly alleged; and (3) facts which may be fairly and justly inferred from the facts alleged.

1986 Pearson v. Canada Contr’g Co., 232 Va. 177, 349 S.E.2d 106.
Sustaining of demurrers and dismissing action was sustained on appeal.

1985 Hechler Chevrolet, Inc. v. General Motors Corp., 230 Va. 396, 337 S.E.2d 744.
When demurrer is sustained, leave to amend should be liberally granted. Where such amendment would accomplish nothing more than provide an opportunity for re-argument of question already decided then it need not be granted.

1977 Burn v. Board of Supvrs., 218 Va. 625, 238 S.E.2d 823.
Effect of demurrer is to admit as true all allegations of material fact which are well pleaded.

1977 Votsis v. Ward’s Coffee Shop, Inc., 217 Va. 652, 231 S.E.2d 236.
Accepting as true all material facts which are well pleaded but not necessarily approving conclusions of law stated by pleader. Issue on demurrer is whether plaintiff has set forth cause of action against defendant.

1972 Richardson v. Bowcock, 213 Va. 141, 191 S.E.2d 238.
Order overruling demurrer is not one which adjudicates principles of cause and is not appealable.

1970 Klein v. National Toddle House, 210 Va. 641, 172 S.E.2d 782.
>Where grounds for demurrer are voluntarily stated only grounds so stated will be considered.

1968 Taylor v. Great Atl. & Pac. Tea Co., 209 Va. 64, 161 S.E.2d 692.
In considering motion to strike plaintiff’s evidence, evidence is to be considered very much as on demurrer to evidence; all inferences which jury might favorably draw from plaintiff’s evidence must be drawn in his favor.

1968 Motors Ins. Co. v. United States Fire Ins. Co., 208 Va. 684, 160 S.E.2d 754.
Conclusion of law not admitted by demurrer.

1967 Caplan v. Stant, 207 Va. 933, 154 S.E.2d 121.
Legal conclusions not admitted by demurrer.

1966 Arlington Yellow Cab v. Transportation, Inc., 207 Va. 313, 149 S.E.2d 877.
Pleadings merely stated conclusions of law and as such were demurrable.

1964 Richardson v. Hackett, 204 Va. 847, 134 S.E.2d 312.
On motion to strike plaintiff’s evidence, as with demurrer, plaintiff’s evidence and reasonable inferences which could be properly drawn therefrom must be admitted as true.

1952 Bibber v. McCreary, 194 Va. 394, 73 S.E.2d 382.
Order sustaining demurrer is not final unless it also dismisses case.

1951 Alexander v. Kuykendall, 192 Va. 8, 63 S.E.2d 746.
Although motion for judgment may be imperfect if it is so drafted that defendant cannot mistake true nature of claim, court should overrule demurrer and order bill of particulars if so requested.