February 2020 Second Example Ten-point Answers to Virginia Essay Questions
February 2020 - QUESTION 6 – VIRGINIA BAR EXAMINATION
On October 1, 2016, Erin, her mom and her brother went to Bill’s Gourmet Burger Bar (“Burger Bar”) in Franklin County, Virginia, for Erin’s 16th birthday celebration dinner. Just minutes after getting home and an hour after consuming her “Diablo Burger,” Erin began to feel sick and had symptoms of a gastrointestinal illness. She went to the hospital the following day and tested positive for escherichia coli (E. coli). Erin was very ill and remained in the hospital for 10 days, and missed one month of high school and the last month of her volleyball season.
On October 1, 2019, Erin filed a Complaint against Burger Bar in the Circuit Court of Franklin County, Virginia, seeking $500,000 in compensatory damages on theories of liability including negligence, breach of implied warranty, and strict liability for serving “unwholesome food” that caused her to have “food poisoning.”
In response to the Complaint, Burger Bar filed a Special Plea arguing that Erin’s claim was barred by the applicable statute of limitations. Burger Bar contemporaneously filed an Answer to the Complaint, specifically pleading the statute of limitations as an affirmative defense. The Circuit Court denied Burger Bar’s Special Plea and defense of the statute of limitations, ruling that the lawsuit had been timely filed.
During discovery, Burger Bar took the depositions of Erin, her mom and her brother. Erin’s mom and brother admitted that they also ordered burgers for dinner on October 1, 2016, and that neither of them had any symptoms or sickness. In Erin’s deposition, she admitted that 1) she was not aware of any other persons that got sick from eating at Burger Bar, 2) she volunteered the weekend before her birthday (3 and 4 days before), helping clean animal crates at the local animal shelter, and 3) she felt sick “almost immediately” after finishing her burger at Burger Bar. Burger Bar also took the deposition of its expert, Dr. Cornwell, a board-certified infectious disease physician. Dr. Cornwell testified that 1) the incubation period for E. coli is 3-4 days and under no circumstances could an exposure to it result in symptoms within one hour of ingestion of a contaminated food product, and 2) the likely exposure to E. coli occurred somewhere other than Burger Bar and most likely at the animal shelter. Erin took the deposition of Bill, the owner and general manager of Burger Bar. Bill testified that no complaints were made regarding any illnesses by customers in the one year before and one year after October 1, 2016.
Before trial, Burger Bar filed a Motion for Summary Judgment arguing that based upon the deposition testimony of Erin, mom, brother, Bill, and Dr. Cornwell, as referenced above, Erin failed to prove a breach of duty or warranty by Burger Bar or that the food she ingested at Burger Bar proximately caused her illness from E. coli. Erin filed a timely brief in opposition to the Motion. In a Memorandum Opinion, the Circuit Court denied the Motion for Summary Judgment.
As a result of Bill’s (Burger Bar) deposition testimony, Erin filed a Motion in Limine seeking to exclude evidence that no complaints were made regarding illnesses by customers at Burger Bar in the year before or after Erin’s alleged food poisoning. Burger Bar objected to and timely filed a brief in opposition to Erin’s Motion in Limine. In a Memorandum Opinion, the Circuit Court sustained Erin’s Motion, excluded the evidence and instructed counsel for Burger Bar to refrain from mentioning or soliciting testimony regarding such evidence before the jury.
At trial, the jury returned a verdict for Erin in the amount of $200,000. Burger Bar timely filed a Notice of Appeal with the Clerk of the Circuit Court.
| (a) | To which Court will the appeal lie, and is it an appeal as a matter of right? Explain fully. | |
| (b) | Was the Circuit Court correct in denying Burger Bar’s Special Plea and defense of the statute of limitations? Explain fully. | |
| (c) | Was the Circuit Court correct in denying Burger Bar’s Motion for Summary Judgment? Explain fully. | |
| (c) | Did Burger Bar properly preserve for appeal its objection to the Circuit Court’s exclusion of evidence that was the subject of Erin’s Motion in Limine? Explain fully. |
February 2020 - QUESTION 6 – EXAMPLE ANSWER #1
(a) The proper court would be the Supreme Court of Virginia and the appeal would be by petition, not by right.
The Supreme Court of Virginia has appellate jurisdiction over civil matters not relating to domestic relations by petition and for criminal cases, where the death penalty is imposed, the appeal is by right.
The steps to appeal are that the party must note the appeal within 30 days, pay the appeal bond and court costs either at the time the appeal is filed or after the petition has been granted, file a statement of facts or a transcript of the case within 55 days or 60 days respectively, and file a petition to appeal within 90 days.
(b) The Circuit Court was correct in denying Burger Bar’s Special Plea and defense of Statute of Limitations.
This action would likely be considered a personal injury claim. The statute of limitations for personal injury in Virginia is two years. However, the statute of limitations is tolled if the plaintiff does not have capacity. A lack of capacity includes being a minor. Once a minor reaches the age of majority, the statute of limitations begins to run. Further, under the breach of implied warranty, which would be governed by the UCC as a sale of goods, there is a four year statute of limitations.
Here, Erin was 16 when she claims that she suffered an injury from Burger Bar. The statute of limitations would not begin to run until she turned 18, which is approximately two years later in 2018. She did not file a suit until October 1, 2019, which would be within two years of Erin reaching the age of majority. Thus, the claim would not be time barred under the two year Virginia statute of limitations for a personal injury claim. If the claim is filed under a breach of implied warranty under the UCC, then the claim would also not be time barred.
(c) The Circuit Court was correct in denying Burger Bar’s motion for summary judgment.
A Court may not use depositions in deciding a motion for summary judgment unless all parties agree to their use. Here, Burger Bar based their motion for summary judgment from the deposition testimony of Erin, mom, Bill, and Dr. Cornwall. Erin filed a timely brief in opposition to the motion. Since Erin did not agree with the use of the deposition testimony as the basis for the motion for summary judgment, the Court was correct in denying Burger Bar’s motion.
(d) Burger Bar properly preserved for appeal its objection to the Circuit Court’s exclusion of evidence.
In order to properly preserve an issue for appeal, the appealing party must timely object and provide the reason for the objection. Here, the facts provide the Burger Bar timely objected and timely filed a brief in opposition to Erin’s in Limine motion. Therefore, Burger Bar properly preserved the issue for appeal.
February 2020 - QUESTION 6 – EXAMPLE ANSWER #2
(a) The appeal will lie to the Supreme Court of Virginia and it is not as of right, but at the Court’s discretion as to whether it will hear the appeal.
Under Virginia law, civil cases, other than domestic cases, are appealed to the Supreme Court of Virginia. The appeal of a civil case from a judgment in Circuit Court is not of right, but is in the discretion of the Court.
The Supreme Court of Virginia will grant the appeal, or not, at its discretion.
(b) The Circuit Court was correct in denying Burger Bar’s Special Plea and defense of the statute of limitations.
Under Virginia law, the statute of limitations for a personal injury case is two years after the action accrues. When the injured party is a minor, the statute of limitations does not start running until the minor has reached the age of majority. For a personal injury case involving a minor as the injured party, the statute of limitations would toll two years after the minor’s 18th birthday.
Here, Erin was 16 years old at the time of the injury. The facts state that her birthday is October 1 and that she turned 16 on October 1, 2016. This means she will reach the age of majority, 18, on October 1, 2018. Erin filed a Complaint against Burger Bar for her personal injury on October 1, 2019, which is one year after she reached the age of majority and within the statute of limitations for the claim.
(c) The Court was correct in denying Burger Bar’s Motion for Summary Judgment.
Under Virginia law, summary judgment is proper when there is no question of material fact at issue. In granting summary judgment, a court is saying that no reasonable finder of fact could find in favor of the non-moving party. In ruling on a motion for summary judgment, a court may look at all pleadings, interrogatories, and witness testimony that has been given. It may not, however, rely on depositions as a basis for awarding summary judgment unless all parties agree to the use of depositions for this purpose.
There is an exception, where requests for admission and facts admitted that were based on deposition testimony may be used, as long as there is no mention of the depositions or any reference to specific testimony given in a deposition.
Here, it does not look like the exception applies and the facts state that Erin filed a brief in opposition to Burger Bar’s Motion for Summary Judgment, which likely means she did not agree to the use of deposition testimony. Therefore, the Court was correct in denying Burger Bar’s Motion for Summary Judgment.
(d) Burger Bar properly preserved for appeal its objection to the Circuit Court’s exclusion of evidence that was the subject of Erin’s Motion in Limine.
Under Virginia law, objections must be stated on the record to be properly preserved for appeal. The objections must be made at the time of the ruling.
Here, Burger Bar objected to and timely filed a brief in opposition to Erin’s Motion in Limine, and, as such, the objection should be properly preserved for the appeal.