Spring 2018

A Trip to the Virginia Supreme Court

Earlier this year, attorney Joshua Hoffman of the Herndon office presented oral argument before the Virginia Supreme Court in the case of Tejada v. Harris Teeter, LLC.

The case arose out of a premises liability incident in which the plaintiff alleged that she slipped and fell on a wet floor at one of Harris Teeter’s northern Virginia store locations.  In the lower court, Joshua and Principal, Andrew Stephenson, prevailed in obtaining a jury verdict for the defendant following a trial on the merits.  The plaintiff appealed the verdict to the Virginia Supreme Court, arguing the trial court was incorrect in ruling to keep out a portion of the surveillance video of the incident showing post-slip clean up in and around the area of the fall during the plaintiff ’s case-in-chief.  F & P attorneys opposed the appeal by arguing the evidence was cumulative; it would not have changed the verdict; the plaintiff failed to use the video in rebuttal and thus waived her right to appeal the issue; and regardless, it was harmless error to exclude it.

Having filed detailed written briefs in advance, counsel for both parties appeared at the Virginia Supreme Court in Richmond on a cold and snowy day to make their final arguments on the issues in the case.  The plaintiff ’s counsel argued the surveillance video gave “context” to the testimony of other witnesses, and that the jury should have been entitled to judge the employee’s “demeanor and conduct” against their claims that the floor was dry.  The justices questioned what the video could have added to the case, as the plaintiff made no claim that the video showed a wet floor or debris.

The justices were also extremely interested in the plaintiff ’s explanation for why the video was not used in rebuttal as directed by the trial court.  The plaintiff ’s counsel offered various explanations that did not seem to sway the court, before returning to the basic argument that a trial attorney should be entitled to use relevant evidence where he believes it will be the most effective.

On the other side, Joshua urged the court to uphold the jury verdict in this case, as the video would not have added to the evidence the jury already considered.  Joshua noted that live testimony is preferred above all else, to which the chief justice responded, “Well, then who said a picture is worth a thousand words?”  Joshua’s quick-witted answer, “The same guy who said possession is 9/10ths of the law,” drew laughs from the justices and gallery alike.

The Court has recently issued a decision which upheld the verdict securing the win for the client.

For more information about this article, please contact Joshua M. Hoffman at 571.612.5938 or