Is the Demurrer Officially Dead In Negligence Cases?

It is increasingly difficult for defendants to win at the demurrer stage in negligence cases in Virginia.  A recent Virginia Supreme Court decision further eviscerated the power of the demurrer and confirmed the Court’s apparent change in direction on this issue, away from the requirement that Plaintiffs must allege proximate cause and toward an interpretation of Rule 3:18 that allows facts tantamount to res ipsa loquitur to survive demurrer.

In Patel v. Williamsburg Indoor Sports Complex, LLC et. al., Record No. 130237, November 22, 2013, the Supreme Court of Virginia reversed the trial court’s grant of the defendant’s demurrer without leave to amend and remanded the case back to the trial court.  In her Complaint, the plaintiff contended that she suffered a thigh fracture while at Williamsburg Indoor Sports Complex’s daycare. The Complaint included assertions that the daycare’s incident report could not accurately describe the incident and that the Complex had exclusive control over the means or circumstances of the accident.  However, the Complaint was light on specifics, lacking any factual allegations of how the injury occurred.  Based on these gaps in the pleadings, the trial court sustained the defendant’s demurrer, agreeing with the defendants that the plaintiff’s version of the facts were insufficient to support her allegations and called for speculation.

Justice McClanahan’s dissent articulates the approach that has historically prevailed in Virginia Courts. In her view, the plaintiff’s Complaint was deficient in several ways, most notably, for failing to assert facts showing that the defendant’s negligence proximately caused Patel’s injuries.  McClanahan refuses to join what she terms, “the majority’s abandonment of the most elementary pleading requirement for stating an actionable negligence claim against a defendant, i.e., how the defendant caused plaintiff’s injury.”