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of Action (Negligence, Gross Negliegence, and Reckless by eot15664

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VIRGINIA:
                   IN THE CIRCUIT COURT PRINCE WILLIAM COUNTY
LINDA MAGWOOD,                                     )
                                                   )
                Plaintiff,                         )
                                                   )
v.                                                 )       At Law No.: CL09002798-00
                                                   )
PRINCE WILLIAM ASSOCIATES, INC.,                   )
                                                   )
                Defendant.                         )
                                                   )

                        DEFENDANT'S DEMURRER TO PLAINTIFFS'
                             MULTIPLE CAUSES OF ACTION

        COMES NOW the Defendant, Prince William Associates, Inc., by counsel, and as its

Demurrers to the Plaintiffs' First Cause of Action (Negligence, Gross Negliegence, and Reckless

Disregard for Human Life) the Plaintiffs' Second Cause of Action (Defamation of Character),

the Plaintiffs' Third Cause of Action (Intentional Infliction of Emotional Distress) and the Fourth

Cause of Action by Plaintiffs' Thaddeus Magwood, Linda Magwood and Darryl Magwood only

(Breach of Contract) states as follows:

1. Negligence, Gross Negligence and Reckless Disregard for Human Life.

        The Plaintiffs' first "Cause of Action" claims the Defendant was guilty of simple

negligence, gross negligence and "reckless disregard for human life" for failure to install

"parking stops" in front of certain rooms at its motel. The Plaintiffs' apparently theorize that had

"parking stops" been placed before the motel rooms, Colleen Sturgis, a motorist unaffiliated with

the motel, would not have been able to drive her vehicle through the parking space in front of the

Plaintiffs' motel room, over the sidewalk and through their motel room wall. They further

theorize that the actions of Ms. Sturgis in driving through the wall of the motel and into the

Magwood's room were foreseeable to the Defendant.

        The Plaintiffs have stated no cognizable duty, statutory, regulatory, or common law, to

install and maintain "parking stops" in front of motel rooms on its premises. No duty to place

traffic barriers in front of motel rooms exists. The Plaintiffs have failed to allege any facts to
support their allegation that this type of accident was foreseeable to the Defendant. It is difficult

to imagine a more unforeseeable accident than the one which have to be this case. Accordingly,

the Plaintiffs' negligence count should be stricken.

        Moreover, the Plaintiffs have failed to allege sufficient facts to support a claim for gross

negligence or any facts which would support an award of punitive damages. Accordingly, any

punitive damages claim as to this count should be stricken.

2. Defamation of character.

        The Plaintiffs have alleged that employees and agents of the Defendant told police, fire,

and rescue personnel, as well as insurance investigators for Mrs. Sturgis' insurance carrier, that

Darryl and Zaniya Magwood were not present at the time Colleen Sturgis drove her vehicle into

the Magwood's motel room. They also allege that employees and agents of the Defendant

falsely stated that Darryl and Thaddeus Magwood were seen playing basketball on the motel

basketball court sometime after the accident. The Plaintiffs allege that these statements are the

functional equivalent of an accusation of insurance fraud against the Magwoods.

        In order to set forth a cause of action for common law defamation, a Plaintiff must set

forth facts which establish that (a) the alleged defamatory statement was false, and (b) that the

Defendant either knew the statement was false, or (c) believing it to be true, lacked reasonable

grounds for such belief, or acted negligently in failing to ascertain the truth. The Plaintiffs have

not pled facts which can support a claim for defamation.

        In order to set forth a cause of action for defamation per se, a Plaintiff must set forth a

defamatory statement which either (a) imputes to a person the commission of some criminal

offense involving moral turpitude, for which the party, jfthe charge is true, may be indicted and

punished, (b) imputes that a person is infected with some contagious disease, where if the charge

is true, it would exclude the party from society, (c) imputes to a person unfitness to perform the

duties of an office or employment of profit, or want of integrity in the discharge of the duties of
such an office or employment, or (d) prejudices such person in his or her profession or trade.

The Plaintiffs have failed to set forth facts which support a cause of action for defamation per se.

        The Plaintiffs have failed to allege sufficient facts to support a claim of defamation

against the Defendants. Statements that Darryl and Zaniya Magwood were not in the room at the

time of the accident and that Thaddeus and Darryl Magwood were playing basketball the day

after the accident are not actionable. The Plaintiffs' claim for defamation should therefore be

stricken.

        Under no circumstances do the words or actions of employees of the Defendants

constitute defamation as to Zaniya Magwood, the four year old daughter of Darryl Magwood and

Aesha Harrison. Under the facts as alleged, there is no reasonable interpretation of those facts

which would permit a jury to conclude that the agents and employees of the Defendant were

accusing a four year old child of insurance fraud. Accordingly, the defamation claim as it relates

to Zaniya Magwood should be stricken.

3. Intentional Infliction of Emotional Distress.

        The Plaintiffs claim that employees of the Defendant turned off the telephone service to

their motel room at some point after the accident thereby depriving them of contact with legal

counsel. Furthermore, they claim that employees of the Defendant refused to provide them with a

telephone book upon their request. The Plaintiffs claim that these actions caused them to suffer

emotional distress and were intentionally inflicted upon them by the Defendant.

       The Plaintiffs have failed to allege sufficient facts to support a claim of intentional

infliction of emotional distress. Under Womack v. Eldridge, 215 Va. 338 (1974) and Russo v.

White, 241 Va. 23 (1991) the Defendant's conduct must be intentional and reckless, outrageous

and intolerable; the alleged conduct and emotional distress must be causally connected and the

distress must be severe in nature. If true, the facts alleged in the Plaintiffs' claim may amount to

rude and insensitive conduct, See Clagett v. Allstate Insurance Company, 71 Va. Cir. 105,2006
WL 2022182 (Va. Cir. Ct.) but they do not constitute the type of behavior contemplated by

Womack and Russo to sustain an award.

        Moreover, the Plaintiffs have failed to make any factual allegations of the extreme

emotional distress required under Womack to sustain a claim for intentional infliction of

emotional distress. While the Plaintiffs have alleged that they suffered severe emotional

distress, there are no factual allegations to support their conclusory statements. Accordingly, the

Plaintiffs' claim for intentional infliction of emotional distress should be stricken.

        As to Zaniya Magwood, there are no allegations that she suffered any type of distress

from allegedly being deprived of the use of a telephone. It strains reason to believe that a four

year old would initiate telephonic contact with counselor would seek a phone book to change

motel accommodations. The claim for intentional infliction of emotional distress as to Zaniya

Magwood should be stricken.

4. Breach of Contract.

        The Plaintiffs Thaddeus Linda and Darryl Magwood have alleged that they entered into a

contract with the Defendant to "reside in a room that was fit for the purpose for which it was

rented." The Plaintiffs allege that Prince William Associates breached the alleged contract by

failing to place "parking stops" in front of the motel rooms and, in particular, the motel room

they were allegedly occupying when Colleen Sturgis drove her vehicle through the motel room

wall.

        This Defendant has simultaneously filed a Motion Craving Oyer so this Court can review

the alleged contract to determine its terms. However, even without the contract, the Plaintiffs

breach of contract claim fails to state a claim upon which relief can granted. Plaintiffs'

allegations sound in negligence not in contract. This is clear when reviewing the allegations

contained in the Plaintiffs' breach of contract claim. The Plaintiffs speak of a "foreseeable

danger" which, due to "defendant's failure to take the reasonable steps necessary to prevent an

accident that it clearly foresaw" constituted a breach of contract.
             elements of a breach of contract                   (a) a legally enforceable obligation of the

defendant to the plaintiff, (b) a breach            that obligation,      (c) damages to          plaintiff as a

result of a breach        that obligation.          Sunrise Continuing Care,             v. Wright, 277 Va. 148,

           2d 1       (2009).                   a            contract are   opn,pr~      limited to the pecuniary

      sustained by the plaintiff. See Kamlar Corp. v. Haley, 224 Va. 699, 299                       2d514(l983).

In this case, the damages requested by the Plaintiffs bear no relationship to a contractual claim,

The               do not make a separate claim for contractual                        in their prayer for relief nor

did they          a         for contractual damages          the breach      contract portion        their

Amended Complaint. The Plaintiffs' breach of contract claim is nothing more than a thinly

           restatement          their               claim                                   such, the

contract claim fails to state a claim upon which relief can be                        and should be dismissed.

   Prayer for relief.

        The Plaintiffs' nonmonetary                     for relief are beyond                  ofajury to

and accordingly should be stricken.

        The Plaintiffs have failed to allege                   facts upon which to support a claim of

punitive damages and, accordingly, the                       claim for punitive                 should

                                the Defendant               the Court sustained          Demurrers, and enter an

                      the Plaintiffs'               Complaint with prejudice, and for                     further

relief as the Court deems proper.
                                                          Respectfully submitted,


                                                          PRINCE WILLIAM ASSOCIATES, INC.
                                                          By Counsel




Ketmeth C. Hirtz, Esquire
Va:~ Bar #26645
Law Offices of Roya Palmer Ewing
3957 Westerre Parkway, Suite 214
Richmond, VA 23233
(804) 934-2657
(312) 894-3548 fax

                                      CERTIFICATE OF SERVICE
                                  h
       I hereby certify this 1i       day of December, 2009 that a true and correct copy of the

foregoing Demurrer was mailed via first class mail to Larry D. Williams, Esquire, 7619 Bertito

Lane, Springfield, VA 22153 and Dawn V. Martin, Esquire 1725 I St., N.W., Suite 300,

Washington D.C., 20006.




                                                                 Kenneth C. Hirtz, ~

								
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