On October 6, 2006, the Virginia Supreme Court reinstated a Fairfax County jury’s $1,800,000 verdict in a mild traumatic brain injury case that I tried in August of 2005. In Wu v. Wirthlin Worldwide, the trial court had found after the verdict that at the time of this accident Defendant Wirthlin’s employee was not within the scope of employment because at the time of this accident she was doing nothing more than merely traveling to work.

The Supreme Court rejected the trial court’s analysis that an employer cannot be vicariously liable when the employee is traveling to work at the time of the accident; instead, the Court focused on whether there was sufficient evidence of the employee’s intent to benefit the employer at the time of the accident. While the employee had testified that she was returning to the office to pick up her glasses and “other items,” her boss testified that the employee had told her that she was returning to the office in order “to pick up project files in preparation for” a meeting the next day. The Court held that:

Because the record shows conflicting credible testimony regarding (the employee’s) intent at the time of the accident, there existed a sufficient question of fact concerning whether she was acting within the scope of her employment to submit the issue of Wirthlin’s liability to the jury. The trial court thus erred in substituting its judgment for that of the jury.

The Supreme Court reversed the trial court, reinstated the $1.8 million verdict and entered final judgment for Mrs. Wu.

The key to victory in this case was our extensive discovery and argument of direct and circumstantial evidence, and reasonable inferences, of the employee’s intent to benefit her employer at the time of this accident.

See the front-page article in the October 16, 2006 edition of Virginia Lawyers Weekly, which quotes my reaction to the decision — that the Virginia Supreme Court once again has shown “utmost deference to juries.”

For additional details, comments or questions, please call me — Doug Wessel — at 703-904-7900, or send your e-mail to me at DOUGWESSEL@aol.com.

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