Bratton v. Nininger

83 Va. Cir. 285, 2011 Va. Cir. LEXIS 261

Opinion

By Judge Robert P. Doherty, Jr.

The Court rendered an opinion in this case that was reported as Bratton v. Nininger, 80 Va. Cir. 405 (2010). Subsequently, the companion case of Harmon v. Nininger was argued, and the Court determined that the facts were different than was originally thought in the Bratton case. The Court thought that the digging for the water line in the Bratton case occurred in the shoulder of the road and not on the traveled portion of the highway. In fact, the digging in both cases occurred on the traveled portion of the road. As a result, Plaintiff was given a second opportunity to argue his case.

Although the change in the facts gives rise to a different legal argument, the end result is exactly the same. By letter opinion dated August 18,2011, in the Roanoke County case of Harmon v. Nininger, the Court answered in some detail the same issues that currently exist in this case. Accordingly, the new letter opinion is adopted and incorporated by reference into this letter opinion. Third Party Defendant Landowner’s demurrer is again sustained as to Third Party Plaintiff’s pleading dealing with vicarious liability and non-delegable duties. The nuisance claim is also denied for the reasons originally given and for the more specific reasons set forth in the Harmon letter opinion.