CaseKENNETH LAWSON, A MINOR BY AND THROUGH HIS MOTHER AND NEXT FRIEND, ELIZABETH LAWSON v. BARBARA S. JENKINS
(Record Number 130786)
FromThe Circuit Court of Greene County; D. Bouton, Judge.
CounselE. Wayne Powell, Christian A. Parrish, and Imie V. Aisiku (Powell & Parrish, P.C.) for appellant.
Rosalie Pemberton Fessier (Timberlake, Smith, Thomas & Moses, P.C.) for appellee.
Assignments of Error
- The trial court erred in sustaining Jenkins's demurrer because it made determinations of the sufficiency of the evidence, instead of applying the standard that "admits the truth of all material facts properly pleaded, expressly alleged and those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged." CaterCorp., Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993).
- The trial court erred by relying on A.H. v. Rockingham Publishing Co., Inc., 255 Va. 216, 495 S.E.2d 482 (1998) and finding that the sexual assaults against Lawson were not reasonably foreseeable, in spite of the numerous allegations in the Amended Complaint of prior incidents of aggressive and inappropriate behavior on the part of Herr of which Jenkins had notice.
- The trial court erred in finding that there were insufficient facts pleaded in Lawson's Amended Complaint to state a claim for gross negligence because reasonable minds could differ and the question of gross negligence is within the province of the jury as the trier of fact in this case.