PRESENT: All the Justices
PATRICIA KOHN, ADMINISTRATOR OF THE ESTATE OF JOHN KOHN, DECEASED OPINION BY v. Record No. 131162 JUSTICE S. BERNARD GOODWYN September 12, 2014 BRUCE P. MARQUIS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge
In this appeal, we consider whether the circuit court
erred in granting summary judgment to the defendants on a plea
in bar which asserts that the plaintiff’s action is barred by
the Virginia Workers’ Compensation Act.
Background
Patricia Kohn (Kohn), the wife of John Kohn (John), is
the administrator of her husband’s estate. In a wrongful
death complaint filed in the Circuit Court of the City of
Norfolk, Kohn asserted that John died as the result of
multiple blows to the head inflicted between September 20,
2010 and December 9, 2010, during his training to become a
City of Norfolk police officer. She alleged that the simple
and gross negligence of Norfolk Police Department Chief Bruce
P. Marquis and Senior Assistant Chief Sharon Chamberlin, as
well as the gross and willful conduct of Leldon Sapp, Stephen
Bailey, L.L. Tessier and Michael Reardon, who were Norfolk
Police officers and instructors at the Norfolk Police Academy, caused John’s death (all defendants will be collectively
referred to as “the City”).
The City filed a plea in bar alleging that Kohn’s
exclusive remedy is under the Virginia Workers’ Compensation
Act, Code § 65.2-100 et seq. (Act). Kohn requested a jury
trial on the plea in bar, and the circuit court granted Kohn’s
request. However, before the trial on the plea in bar, the
City moved for summary judgment on its plea based upon Kohn’s
pleadings and her responses to requests for admissions and
interrogatories. After a hearing, the circuit court granted
the City’s motion for summary judgment on the plea in bar and
dismissed the case with prejudice. Kohn appeals.
Facts
John started training at the Norfolk Police Academy as a
recruit on September 20, 2010. According to Kohn’s complaint,
at various times between September 20, 2010 and December 9,
2010, John was repeatedly and violently struck in the head
during training. She asserts that these repeated violent
blows to the head proximately caused John’s death on December
18, 2010.
The following undisputed facts were established by Kohn’s
responses to the City’s requests for admissions, pleadings
filed, and arguments made to the circuit court. Between
September 20, 2010 and December 9, 2010, John was a police
2 recruit undergoing training at the Norfolk Police Academy.
During his tenure at the Police Academy, John was a paid
employee of the City of Norfolk, as were the individual
defendants.
Kohn admits that she is not aware of John’s seeking
medical treatment for injuries experienced during his training
as a police recruit prior to December 9, 2010. On December 9,
2010, John experienced several blows to his head while
participating in training exercises at the Norfolk Police
Academy. He was involved in a head-to-head collision with
another recruit, and he suffered several blows to his head
while engaged in a defensive training exercise with Officer
Sapp. John began demonstrating serious neurological deficits
during the training exercises and was transported to Sentara
Leigh Hospital. Medical records indicate John collapsed at
the Police Academy. In a brief to the circuit court, Kohn
stated the facts upon which she relied more succinctly:
[O]n December 9, 2010 Officer Leldon Sapp repeatedly struck Plaintiff’s decedent in the head with his fists to the point where Plaintiff’s decedent was no longer able to defend himself from Officer Sapp. At this point, Officer Sapp suspended his attack and shortly thereafter Mr. Kohn was transported to Sentara Leigh Hospital and then to Sentara Norfolk General Hospital.
Upon evaluation at Sentara Leigh Hospital, John was
documented to have a Glasgow coma scale of 3 upon arrival.
3 A CT scan was reported to show bilateral subdural hematomas
with midline shift. On December 18, 2010, John died of trauma
to the head.
Kohn contends that during his entire tenure at the
Norfolk Police Academy, John suffered numerous blows to his
head, all of which contributed to his death on December 18,
2010. In her opposition to the plea in bar and to summary
judgment on the plea, Kohn referred the circuit court to an
autopsy report which states that blows to John’s head on
December 9, 2010 “may have played a significant role in Mr.
Kohn’s terminal event but other blows to the head prior to
this event cannot be excluded as contributing to his terminal
head injury.”
This Court granted an appeal on the following assignment
of error:
The trial court erroneously granted summary judgment despite the existence of a disputed material fact in the case. Specifically, the question whether the death resulted from injury by accident presented a jury issue, and the trial court violated the widow’s constitutional right to trial by jury by granting summary judgment.
Analysis
“If it appears from the pleadings, the orders, if any,
made at a pretrial conference, [and] the admissions, if any,
in the proceedings . . . that the moving party is entitled to
judgment, the court shall enter judgment in that party’s
4 favor.” Rule 3:20. A party does not have a constitutional
right to a jury trial if a case can be determined as a matter
of law based upon material facts not genuinely in dispute.
See W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245,
254-55, 108 S.E. 15, 18-19 (1921) (noting that the Seventh
Amendment of the United States Constitution is not applicable
to the states, and upholding summary disposition without trial
under Article I, § 11 of the Constitution of Virginia where
the controlling facts are not in dispute). However, summary
judgment may not be entered if any material fact is genuinely
in dispute. Kasco Mills, Inc. v. Ferebee, 197 Va. 589, 593,
90 S.E.2d 866, 870 (1956). In an appeal arising from the
grant of a motion for summary judgment, appellate courts will
review the application of law to undisputed facts de novo.
See Transportation Ins. Co. v. Womack, 284 Va. 563, 567, 733
S.E.2d 656, 658 (2012).
In this instance, the circuit court granted the City
summary judgment on its plea in bar based upon the exclusivity
provision of the Act. Pursuant to the Act, an injured
employee and his beneficiaries are precluded from maintaining
a common law action against an employer or a co-employee for
an injury sustained in the course of employment if the Act
applies. Code § 65.2-307(A); see also Hudson v. Jarrett, 269
Va. 24, 29, 606 S.E.2d 827, 829 (2005).
5 The Act applies to injuries by accident “arising out of
and in the course of” an individual’s employment. Code
§ 65.2-300(A). An injury by accident is “an identifiable
incident that occurs at some reasonably definite time, which
is the cause of an obvious sudden mechanical or structural
change in the body.” Lane Co. v. Saunders, 229 Va. 196, 199,
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PRESENT: All the Justices
PATRICIA KOHN, ADMINISTRATOR OF THE ESTATE OF JOHN KOHN, DECEASED OPINION BY v. Record No. 131162 JUSTICE S. BERNARD GOODWYN September 12, 2014 BRUCE P. MARQUIS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge
In this appeal, we consider whether the circuit court
erred in granting summary judgment to the defendants on a plea
in bar which asserts that the plaintiff’s action is barred by
the Virginia Workers’ Compensation Act.
Background
Patricia Kohn (Kohn), the wife of John Kohn (John), is
the administrator of her husband’s estate. In a wrongful
death complaint filed in the Circuit Court of the City of
Norfolk, Kohn asserted that John died as the result of
multiple blows to the head inflicted between September 20,
2010 and December 9, 2010, during his training to become a
City of Norfolk police officer. She alleged that the simple
and gross negligence of Norfolk Police Department Chief Bruce
P. Marquis and Senior Assistant Chief Sharon Chamberlin, as
well as the gross and willful conduct of Leldon Sapp, Stephen
Bailey, L.L. Tessier and Michael Reardon, who were Norfolk
Police officers and instructors at the Norfolk Police Academy, caused John’s death (all defendants will be collectively
referred to as “the City”).
The City filed a plea in bar alleging that Kohn’s
exclusive remedy is under the Virginia Workers’ Compensation
Act, Code § 65.2-100 et seq. (Act). Kohn requested a jury
trial on the plea in bar, and the circuit court granted Kohn’s
request. However, before the trial on the plea in bar, the
City moved for summary judgment on its plea based upon Kohn’s
pleadings and her responses to requests for admissions and
interrogatories. After a hearing, the circuit court granted
the City’s motion for summary judgment on the plea in bar and
dismissed the case with prejudice. Kohn appeals.
Facts
John started training at the Norfolk Police Academy as a
recruit on September 20, 2010. According to Kohn’s complaint,
at various times between September 20, 2010 and December 9,
2010, John was repeatedly and violently struck in the head
during training. She asserts that these repeated violent
blows to the head proximately caused John’s death on December
18, 2010.
The following undisputed facts were established by Kohn’s
responses to the City’s requests for admissions, pleadings
filed, and arguments made to the circuit court. Between
September 20, 2010 and December 9, 2010, John was a police
2 recruit undergoing training at the Norfolk Police Academy.
During his tenure at the Police Academy, John was a paid
employee of the City of Norfolk, as were the individual
defendants.
Kohn admits that she is not aware of John’s seeking
medical treatment for injuries experienced during his training
as a police recruit prior to December 9, 2010. On December 9,
2010, John experienced several blows to his head while
participating in training exercises at the Norfolk Police
Academy. He was involved in a head-to-head collision with
another recruit, and he suffered several blows to his head
while engaged in a defensive training exercise with Officer
Sapp. John began demonstrating serious neurological deficits
during the training exercises and was transported to Sentara
Leigh Hospital. Medical records indicate John collapsed at
the Police Academy. In a brief to the circuit court, Kohn
stated the facts upon which she relied more succinctly:
[O]n December 9, 2010 Officer Leldon Sapp repeatedly struck Plaintiff’s decedent in the head with his fists to the point where Plaintiff’s decedent was no longer able to defend himself from Officer Sapp. At this point, Officer Sapp suspended his attack and shortly thereafter Mr. Kohn was transported to Sentara Leigh Hospital and then to Sentara Norfolk General Hospital.
Upon evaluation at Sentara Leigh Hospital, John was
documented to have a Glasgow coma scale of 3 upon arrival.
3 A CT scan was reported to show bilateral subdural hematomas
with midline shift. On December 18, 2010, John died of trauma
to the head.
Kohn contends that during his entire tenure at the
Norfolk Police Academy, John suffered numerous blows to his
head, all of which contributed to his death on December 18,
2010. In her opposition to the plea in bar and to summary
judgment on the plea, Kohn referred the circuit court to an
autopsy report which states that blows to John’s head on
December 9, 2010 “may have played a significant role in Mr.
Kohn’s terminal event but other blows to the head prior to
this event cannot be excluded as contributing to his terminal
head injury.”
This Court granted an appeal on the following assignment
of error:
The trial court erroneously granted summary judgment despite the existence of a disputed material fact in the case. Specifically, the question whether the death resulted from injury by accident presented a jury issue, and the trial court violated the widow’s constitutional right to trial by jury by granting summary judgment.
Analysis
“If it appears from the pleadings, the orders, if any,
made at a pretrial conference, [and] the admissions, if any,
in the proceedings . . . that the moving party is entitled to
judgment, the court shall enter judgment in that party’s
4 favor.” Rule 3:20. A party does not have a constitutional
right to a jury trial if a case can be determined as a matter
of law based upon material facts not genuinely in dispute.
See W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245,
254-55, 108 S.E. 15, 18-19 (1921) (noting that the Seventh
Amendment of the United States Constitution is not applicable
to the states, and upholding summary disposition without trial
under Article I, § 11 of the Constitution of Virginia where
the controlling facts are not in dispute). However, summary
judgment may not be entered if any material fact is genuinely
in dispute. Kasco Mills, Inc. v. Ferebee, 197 Va. 589, 593,
90 S.E.2d 866, 870 (1956). In an appeal arising from the
grant of a motion for summary judgment, appellate courts will
review the application of law to undisputed facts de novo.
See Transportation Ins. Co. v. Womack, 284 Va. 563, 567, 733
S.E.2d 656, 658 (2012).
In this instance, the circuit court granted the City
summary judgment on its plea in bar based upon the exclusivity
provision of the Act. Pursuant to the Act, an injured
employee and his beneficiaries are precluded from maintaining
a common law action against an employer or a co-employee for
an injury sustained in the course of employment if the Act
applies. Code § 65.2-307(A); see also Hudson v. Jarrett, 269
Va. 24, 29, 606 S.E.2d 827, 829 (2005).
5 The Act applies to injuries by accident “arising out of
and in the course of” an individual’s employment. Code
§ 65.2-300(A). An injury by accident is “an identifiable
incident that occurs at some reasonably definite time, which
is the cause of an obvious sudden mechanical or structural
change in the body.” Lane Co. v. Saunders, 229 Va. 196, 199,
326 S.E.2d 702, 703 (1985) (internal quotation marks omitted).
To establish an “injury by accident,” a claimant must prove
“(1) that the injury appeared suddenly at a particular time
and place and upon a particular occasion, (2) that it was
caused by an identifiable incident or sudden precipitating
event, and (3) that it resulted in an obvious mechanical or
structural change in the human body.” Southern Express v.
Green, 257 Va. 181, 187, 509 S.E.2d 836, 839 (1999).
Kohn’s complaint alleges that John was an employee of the
City of Norfolk’s Police Department who was injured by and
died because of numerous blows to his head during his
training. It is not disputed that his injury and death arose
out of and in the course of his employment or that the
defendants were his co-employees.
Additionally, it is admitted that John received several
blows to the head and was injured during training on December
9, 2010. The parties agree that John suffered neurological
deficits as a result of those blows and was taken to the
6 hospital. Thus, there is no dispute that John suffered an
injury by accident on December 9, 2010.
Kohn contends that John’s death was caused not just by
the injury that occurred on December 9, 2010, which
contributed to it, but also as the result of other blows to
the head John received earlier in his training. In other
words, she asserts that John’s death resulted from a series of
head traumas over a period of time, rather than from a single
identifiable event. She contends that John’s death is
therefore not compensable under the Act.
Kohn asserts that the circuit court erred in granting
summary judgment because there is a material question of fact
regarding whether John’s death was caused by a single
identifiable trauma or a series of traumas suffered over the
course of his training. Citing Dollar General Store v.
Cridlin, 22 Va. App. 171, 175, 468 S.E.2d 152, 154 (1996), she
posits that if John’s death was caused by a series of traumas
rather than solely by one event it is “a gradually incurred
injury [and] not an injury by accident within the meaning of
the [Workers’ Compensation] Act.” Id. She notes that
injuries that result from repetitive traumas are not “injuries
by accident.” Southern Express, 257 Va. at 186, 509 S.E.2d at
839.
7 The City argues that John suffered an injury by accident
on December 9, 2010, which was a proximate cause of his death.
The City asserts that, whether or not John had preexisting
conditions and injuries, his undisputed injury by accident on
December 9, 2010, which Kohn alleges contributed to his death,
entitles John to workers’ compensation benefits and bars this
action.
We agree with the City. This case significantly differs
from the gradually incurred injury and repetitive trauma cases
referenced by Kohn in that John suffered an obvious mechanical
or structural change in his body while engaged in a work
activity which exposed him to an employment-related hazard
that injured him and contributed to his death.
In Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 216, 28
S.E.2d 725, 727 (1944), this Court stated that “if the injury
or death results from, or is hastened by, conditions of
employment exposing the employee to hazards to a degree beyond
that of the public at large, the injury or death is construed
to be accidental within the meaning of the statute.” In the
present case, John collapsed at work after the last blow to
his head on December 9, 2010, and was rushed to the hospital.
He died several days later. It is undisputed that John was
injured on December 9, 2010 during training. Kohn’s complaint
itself contends that John’s injuries on December 9, 2010
8 contributed to his death. The training on December 9, 2010
was a condition of employment that exposed John to the hazard
of blows to the head beyond that of the public at large, and
the injury John suffered during training on December 9, 2010
was a proximate cause of his death. Thus, his death is
properly construed as accidental within the meaning of the
Act.
Conclusion
Accordingly, the circuit court did not err in granting
summary judgment on the plea in bar, and the circuit court did
not err in holding that the exclusivity provision of the Act,
Code § 65.2-307(A), bars this action. As a result, we will
affirm the judgment of the circuit court.
Affirmed.