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University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 2015 Virginia Practice Series: Tort and Personal Injury Law Peter N. Swisher University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the State and Local Government Law Commons, and the Torts Commons Recommended Citation Peter N. Swisher & et. al., Virginia Practice Series: Tort and Personal Injury Law (West rev. ed. 2015). This Book is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. VIRGINIA PRACTICE SERIES™ Volume 13 TORT AND PERSONAL INJURY LAW 2015 Edition Issued June 2015 By PETER NASH SWISHER Professor of Law University of Richmond Law School ROBERT E. DRAIM Member of the Virginia State Bar DAVID D. HUDGINS Member of the Virginia State. Bar UNIVERSITY OF RICHMOND JUN 2 9 2015 For Customer Assistance Call 1-800-328-4880 Mat #41614407 © 2015 Thomson Reuters This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. ind authoritative inthis publication was law in a particular gal or other profes>r the advice of an 1hould seek the ser- INTRODUCTION TO 2015 EDITION This edition of Virginia Practice: Tort and Personal Injury Law continues with the same general organization as preceding editions, while also continuing to provide updated caselaw and statutory citations and analysis on the many facets of tort and personal injury law in Virginia. Although Virginia tort and personal injury law has evolved over the course of centuries, each year brings new cases and statutes which clarify, supplement, modify, and in some cases even abrogate, long-standing legal authority. This past year was no exception. One of the more important cases decided during 2015 was the Supreme Court of Virginia's decision in Shevlin Smith v. McLaughlin, 769 S.E.2d 7 (Va. 2015), addressing several previously unanswered questions of Virginia law in legal malpractice actions. (Although legal malpractice cases in Virginia are considered to be claims for "breach of contract," we discuss legal malpractice in our work on tort and personal injury law because they nevertheless involve a number of tort concepts and defenses). In Shevlin Smith v. McLaughlin, the Court held that an attorney cannot be held liable for failing to correctly predict the outcome of an unsettled legal issue. The Court further held that "collectability'' of a judgment against the underlying defendant is relevant in a legal malpractice action, because a legal malpractice plaintiffs damages for a lost claim can only be measured by the amount that could have actually been collected from the underlying defendant in the absence of the attorney's negligence. On this issue, the Court held that the plaintiff does not have the burden of proving collectability; rather, the attorney defendant has the burden to plead and prove as an affirmative defense that the claim was not collectible. The Court in Shevlin Smith also held that recovery for legal malpractice in Virginia is limited to pecuniary loss, and does not include non-pecuniary loss such as mental anguish, emotional distress or humiliation. For the same reason, the Court held that a plaintiff suing his former criminal defense counsel for legal malpractice cannot recover nonpecuniary damages for his wrongful incarceration. iii Summary of Contents Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Chapter Chapter Chapter Chapter Chapter 15. 16. 17. 18. 19. Introduction Intentional Torts Negligence in General Motor Vehicle Accidents Medical Malpractice Professional Malpractice Premises Liability Actions Nuisance Tortious Interference Fraud and Misrepresentation Emotional Distress Defamation Invasion of the Right to Privacy Strict Liability Actions Based Upon Abnormally Dangerous Animals and Activities Products Liability Multiple Tortfeasors Wrongful Death Actions Workers' Compensation Pleading and Practice Forms Table of Laws and Rules Table of Cases Index xv Table of Contents CHAPTER 1. INTRODUCTION § 1:1 § 1:2 § 1:3 § 1:4 § 1:5 § 1:6 § 1:7 § 1:8 § 1:9 § 1:10 § 1:11 § 1:12 § 1:13 Introduction-What is tort law? Evolution of American tort law Foundations of Virginia tort law Procedural steps in initiating and defending a Virginia tort action -State tort actions - -The pleadings - -Discovery - -Pre-trial challenges --Trial --Appeals -Federal tort actions Tort law practice and contemporary concerns The restatements of the law of torts: A brief overview CHAPTER 2. INTENTIONAL TORTS I. .GENERALLY § 2:1 § 2:2 § 2:3 § 2:4 § 2:5 § 2:6 Introduction The intent or "substantial certainty" requirement The doctrine of transferred intent The mistake doctrine Infancy Insanity II. TYPES OF INTENTIONAL TORTS § 2:7 § 2:8 § 2:9 §2:10 § 2:11 § 2:12 § 2:13 § 2:14 The definition of battery The distinction between tort law assault and battery Battery in general Assault False imprisonment and false arrest Trespass to chattel and conversion Trespass to land Intentional infliction of emotional distress III. DEFENSES TO INTENTIONAL TORTS §2:15 § 2:16 Express and implied consent Self-defense xvii VIRGINIA TORT AND PERSONAL INJURY LAW § 2:17 § 2:18 § 2:19 § 2:20 § 2:21 § 2:22 §2:23 §2:24 § 2:25 § 2:26 Defense of others Defense and recovery of property Public and private necessity-Generally Public necessity Private necessity Legal process Discipline Justification Ecclesiastical dispute defense available to clergy Sovereign immunity and government agents CHAPTER 3. NEGLIGENCE IN GENERAL §3:1 §3:2 §3:3 § 3:4 § 3:5 § 3:6 § 3:7 §3:8 §3:9 §3:10 § 3:11 § 3:12 § 3:13 §3:14 §3:15 §3:16 § 3:17 § 3:18 § 3:19 § 3:20 §3:21 §3:22 § 3:23 § 3:24 § 3:25 §3:26 § 3:27 § 3:28 xviii Introduction Duty and breach of duty-Generally -The objective reasonable person standard of care -The standard of care for minors -The standard of care for physically disabled persons -Mentally disabled persons -The reasonable professional standard of care -Sudden emergency doctrine -Unavoidable accidents -Duty to act-Special relationships Breach of fiduciary duty Duty and breach of duty-Negligent entrustment and negligent supervision -Negligent infliction of emotional distress -Unborn children -Degrees of negligence -Statutory violations and negligence per se Legal causation-Introduction Causation in fact-"But for" causation -Concurrent causation-The substantial factor rule -Shifting the burden of proof in unique cause-in-fact cases-Generally - -Summers v. Tice: the alternative liability theory - -Market share and enterprise liability theories Proximate causation-Introduction -Foreseeability of the plaintiff and rescuers-The foreseeable plaintiff - -The foreseeable rescuer -Foreseeability of harm in a direct causal chain of events -Foreseeable and unforeseeable intervening causesGenerally - -Intervening negligent acts §: §: §: §: § § § § § § § § § § § § § § ! ! ERSONAL INJURY LAW TABLE OF CONTENTS § 3:29 § 3:30 § 3:31 § 3:32 clergy tts GENERAL d of care >led persons care ;tment and octor rule use-in-fact ity theory ;heories ·s-The chain of §3:33 § 3:34 § 3:35 §3:36 §3:37 § 3:38 § 3:39 § 3:40 §3:41 § 3:42 § 3:43 § 3:44 §3:45 §3:46 § 3:47 § 3:48 §3:49 § 3:50 § 3:51 § 3:52 § 3:53 § 3:54 § 3:55 §3:56 §3:57 § 3:58 §3:59 § 3:60 § 3:61 §3:62 § 3:63 § 3:64 gcauses§ 3:65 § 3:66 - -Intervening intentional or criminal acts - -Intervening acts of God or natural events -The extent of harm Actual and proximate causation-Functions of the court and jury Damages-Introduction -Compensatory damages -Punitive damages -Collateral source rule -Plaintifl's duty to mitigate damages -Liability insurance issues Proof of negligence-Introduction -Direct evidence -Circumstantial evidence -Res ipsa loquitur -Habit, custom, and practice -Witness and expert witness testimony Defenses to negligence-Introduction -Contributory negligence-Generally -Contributory negligence in Virginia -Contributory negligence-When contributory negligence will not apply -Comparative negligence-Generally --In Virginia -Assumption of risk-Introduction - -Express assumption of risk-Pre-injury release forms - -Implied assumption of risk -Statutes of limitation and repose -Immunities-Generally - -Charitable immunity - -Intrafamily tort immunity-Interspousal tort immunity and liability - - -Parent and child tort immunity --Governmental (or sovereign) immunityGenerally - - -Liability under the Federal Tort Claims Act - - -Liability under the Virginia Tort Claims Act - - -Immunity and liability of Virginia counties and cities - -Statutory immunity for private individuals Vicarious liability and imputed negligence-Introduction -Scope of employment issues -Independent contractors xix VIRGINIA TORT AND PERSONAL INJURY LAW § 3:67 § 3:68 § 3:69 -Apparent authority -Other bases for vicarious liability -Imputed contributory negligence CHAPTER 4. MOTOR VEHICLE ACCIDENTS § 4:1 § 4:2 § 4:3 § 4:4 § 4:5 § 4:6 § 4:7 § 4:8 § 4:9 § 4:10 § 4:11 § 4:12 § 4:13 § 4:14 § 4:15 § 4:16 § 4:17 § 4:18 § 4:19 § 4:20 § 4:21 § 4:22 § 4:23 § 4:24 § 4:25 § 4:26 § 4:27 § 4:28 § 4:29 § 4:30 § 4:31 § 4:32 § 4:33 § 4:34 § 4:35 § 4:36 Introduction Duty of care-Generally -Owed by motorist -Degree of standard of care -Reasonable person stani;lard -Intoxicated drivers -Mentally and physically impaired drivers -Owed by common carrier -Owed by owner Breach of care-Generally -Res ipsa loquitur -Negligence per se Causation-Cause in fact, "but for" -Proximate cause -Intervening and superseding causes -Concurrent cause Damages-Generally -Punitive damages -Guest statute Defenses-Generally -Contributory negligence -Failure to wear a seatbelt -Assumption of the risk -Last clear chance -Unavoidable accident and sudden emergency -Intra-family immunity -Statute of limitations Vicarious liability Liability-Imputed to owner -Family purpose doctrine -Owner consent -Negligent entrustment -Guest passengers Automobile insurance-General overview -Uninsured/Underinsured motorist -Medical payment coverage CHAPTER 5. MEDICAL MALPRACTICE § 5:1 xx Introduction rs TABLE OF CONTENTS § 5:2 § 5:3 § 5:4 § 5:5 § 5:6 §5:7 § 5:8 § 5:9 § 5:10 § 5:11 §5:12 § 5:13 § 5:14 § 5:15 § 5:16 CHAPTER 6. PROFESSIONAL MALPRACTICE § 6: 1 § 6:2 § 6:3. Professional malpractice in general Legal malpractice actions Vicarious liability issues CHAPTER 7. PREMISES LIABILITY ACTIONS § 7:1 § 7:2 § 7:3 § 7:4 § 7:5 ency \CTI CE The Medical Malpractice Act Standard of care Informed consent Types of causes of action-Infinite variety exists -Fetus injuries -Malpractice claims related to birth -Wrongful death Causation Damages-Under the Medical Malpractice Act -Contributory negligence Expert testimony Medical malpractice review panel Immunity-Sovereign immunity -Charitable immunity Statute of limitations § 7:6 § 7:7 § 7:8 § 7:9 § 7:10 § 7:11 § 7:12 Introduction Trespassers-Adult trespassers -Trespassing children Licensees-In general -Duty of landowners under Virginia's "recreational use" statute Invitees-In general -Slip-and-fall cases -Lessor and lessee issues -Public employees-Generally - -Firefighters, police officers, and emergency medical personnel -Acts of third persons or animals Abolition of status-based categories for premises liability actions CHAPTER 8. NUISANCE I. INTRODUCTION § 8:1 Background and history xxi VIRGINIA TORT AND PERSONAL INJURY LAW § 8:2 Distinguishing nuisance from trespass to land II. PRIVATE NUISANCE § 8:3 § 8:4 § 8:5 § 8:6 Definition and general application Substantial and unreasonable interference required Factors considered in determining whether an activity is a nuisance Remedies III. PUBLIC NUISANCE § 8:7 § 8:8 Definition and general application Remedies CHAPTER 9. TORTIOUS INTERFERENCE § 9:1 § 9:2 § 9:3 § 9:4 § 9:5 § 9:6 § 9:7 § 9:8 Introduction Tortious interference with parental rights Tortious interference with contract Tortious interference with business relations Damages Defenses The Business Conspiracy Act Trade secrets CHAPTER 10. FRAUD AND MISREPRESENTATION I. INTRODUCTION § 10: 1 Overview of tortious misrepresentation and fraud II. FRAUDULENT MISREPRESENTATION § 10:2 § 10:3 § 10:4 General principles Proving the necessary elements of fraud Remedies for fraudulent misrepresentation III. CONSTRUCTIVE FRAUD § 10:5 § 10:6 General principles Remedies for constructive fraud CHAPTER 11. EMOTIONAL DISTRESS § 11:1 § 11:2 xxii Historical background Intentional infliction of emotional distress 'ERSONAL INJURY LAW md required · an activity tFERENCE lS TABLE OF CONTENTS .· § 11:3 § 11:4 § 11:5 § 11:6 § 11:7 -Third-party recovery Negligent infliction of emotional distress -Examples of sufficient physical injury -Exceptions to physical injury requirement -Third-party recovery CHAPTER 12. DEFAMATION § 12:1 § 12:2 § 12:3 § 12:4 § 12:5 § 12:6 § 12:7 § 12:8 § 12:9 § 12:10 § 12:11 § 12:12 § 12:13 Definitions and overview Parties to a defamation action Elements of defamation-Publication -False and defamatory statement -Intent Slander of title Virginia statutory action for insulting words Damages Justification and mitigation of damages Defenses-Truth -Privileged communications-Generally - -Absolute privilege - -Qualified privilege CHAPTER 13. INVASION OF THE RIGHT TO PRIVACY :I fraud § 13:1 § 13:2 § 13:3 § 13:4 § 13:5 § 13:6 TION § 13:7 TRESS Introduction Unauthorized use of a name or picture of any person The Virginia "Peeping and Spying" statute The Virginia stalking statute The Virginia computer invasion of privacy statute The Virginia Government Data Collection and Dissemination Practices Act The Virginia Freedom of Information Act CHAPTER 14. STRICT LIABILITY ACTIONS BASED UPON ABNORMALLY DANGEROUS ANIMALS AND ACTIVITIES § 14:1 § 14:2 § 14:3 § 14:4 § 14:5 § 14:6 Introduction Strict liability for animals-Trespassing animals -Abnormally dangerous domestic animals -Wild animals Strict liability for abnormally dangerous activitiesGenerally -Abnormally dangerous activities on land: Rylands v. Fletcher xxiii VIRGINIA TORT AND PERSONAL INJURY LAW § 14:7 § 14:8 § 14:9 § 14:10 -Strict liability for explosives and high energy activities -For poisons and other toxic materials Causation requirements for strict liability actions Defenses to strict liability actions CHAPTER 15. PRODUCTS LIABILITY § 15:1 § 15:2 § 15:3 § 15:4 § 15:5 § 15:6 § 15:7 § 15:8 § 15:9 § 15:10 § 15:11 § 15:12 § 15:13 § 15:14 § 15:15 § 15:16 § 15:17 § 15:18 § 15:19 § 15:2.0 § 15:21 § 15:22 § 15:23 § 15:24 § 15:25 § 15:26 § 15:27 § 15:28 § 15:29 § 15:30 § 15:31 § 15:32 § 15:33 § 15:34 § 15:35 § 15:36 xxiv Introduction Causes of action-Generally -Negligence-Generally --Negligent design --Negligent manufacture --Negligent failure to warn -Breach of warranty-Generally - -Express warranty - -Breach of implied warranty-Generally - - -Implied warranty of merchantability - - -Implied warranty of fitness for a particular purpose -Strict liability ~Breach of statutory duties .-Fraud Causation-Generally -Proximate cause -Intervening and superseding cause Defenses-Statute of limitations _:_Product Misuse -Product Alteration -Contributory negligence -Assumption of the risk -Open and obvious danger -Knowledgeable user -Learned intermediary rule -Lack of notice -Disclaimers of liability and limitations on d.amages -Manufacture pursuant to plans and specifications -Government contractor defense -Federal preemption of state law claims Parties Evidence-Industry customs and standards -State of the art -Statutes and regulations -Res ipsa loquitur -Subsequent repair or modification 'ERSONAL INJURY LAW energy ty actions BILITY TABLE OF CONTENTS § 15:37 § 15:38 § 15:39 § 15:40 § 15:41 § 15:42 § 15:43 § 15:44 § 15:45 § 15:46 -Other accidents -Recalls --Tests and accident reconstruction Expert testimony-Generally -State court -Federal court Damages-Personal injury -Property damage -Economic loss -Punitive damages CHAPTER 16. MULTIPLE TORTFEASORS ·ally ility particular § 16:1 § 16:2 § 16:3 § 16:4 § 16:5 § 16:6 § 16:7 § 16:8 § 16:9 § 16:10 § 16:11 § 16:12 § 16:13 § 16:14 § 16:15 Introduction . Joint tortfeasors-Apportionment ---Joint and several liability -Vicarious liability -Settlement by one tortfeasor Contribution-Generally -Effect of settlement by one tortfeasor Indemnity-Express, Contractual Entitled Indemnity-Common law Indemnity-Implied contractual -Implied-Vicarious liability -Equitable-Active v. passive tortfeasors Practice and procedure for asserting contribution and indemnity claims Statute of limitations Indemnity, contribution, and settlement under the Restatement Third of Torts: Apportionment of Liability CHAPTER 17. WRONGFUL DEATH ACTIONS on damages 1ecifications rds § 17:1 § 17:2 § 17:3 § 17:4 § 17:5 § 17:6 § 17:7 § 17:8 § 17:9 Introduction The Virginia Wrongful Death Act Alternate state wrongful death legislation-Virginia survival statutes -The Virginia Workers' Compensation Act -The Virginia Railroad Employers' Liability Act -Liability for death or injury to a motor vehicle guest Related federal legislation-Introduction -The Federal Tort Claims Act -The Federal Employers' Liability Act xxv VIRGINIA § 17:10 § 17:11 § 17:12 § 17:13 § 17:14 § 17:15 § 17:16 §17:17 § 17:18 § 17:19 § 17:20 § 17:21 . § 17:22 § 17:23 § 17:24 § 17:25 § 17:26 § 17:27 § 17:28 § 17:29 § 17:30 § 17:31 § 17:32 § 17:33 § 17:34 § 17:35 § 17:36 § 17:37 § 17:38 § 17:39 § 17:40 § 17:41 § 17:42 § 17:43 § 17:44 § 17:45 § 17:46 xxvi TORT AND PERSONAL INJURY LAW -Federal and state maritime tort claims actsGenerally - -The Jones Act - -The Federal Death on the High Seas Act --The Longshore and Harbor Workers' Compensation Act - -Wrongful death actions and Moragne v. States Marine Lines -The Federal Civil Rights Act -The Federal Employees' Compensation Act -The Federal Social Security Act Conduct creating a wrongful death cause of actionWrongful acts generally -Intentional torts and gross negligence -Negligence -The problem of proximate cause -Strict liability actions -Breach of contract and breach of warranty actions -Maritime wrongful death actions -Death of a viable unborn child and ''wrongful birth" actions -Effect of suicide -Physical condition of the deceased prior to, or subsequent to, injury · Parties to a wrongful death action-Decedent's personal administrator-Rights and duties of decedent's administrator - -Foreign administrators -Beneficiaries-Generally - -Surviving spouse - -Surviving children of a deceased parent - -Persons dependent on the decedent - -Parents, brothers, and sisters of the deceased --Non-resident aliens --Non-relatives and non-dependents -Defendants Defenses and other matters in bar-Introduction -Consent to a wrongful act -Self-defense -Defense of property and family -Contributory negligence of the deceased plaintiff -Contributory negligence of decedent's beneficiary -The sudden emergency doctrine -Comparative negligence -Assumption of risk eRSONAL INJURY LAw 1 acts- s Act e u. States Act of action- TABLE OF CONTENTS § 17:47 § 17:48 § 17:49 § 17:50 § 17:51 § 17:52 § 17:53 § 17:54 § 17:55 § 17:56 § 17:57 § 17:58 § 17:59 -Governmental (or sovereign) immunity -Intrafamily tort immunity and liability -Good samaritan statutory immunity -Release, compromise, or settlement of the claim -Statute of limitations and repose -Defective pleadings or proof -Prior adjudication Damages-Generally -Compensatory damages -Punitive damages -Evidentiary matters related to damages -Other wrongful death damage references Choice oflaw issues CHAPTER 18. WORKERS' COMPENSATION inty actions ongful birth" r to, or dent's ies of ent deceased duction l plaintiff eneficiary § 18:1 § 18:2 § 18:3 § 18:4 § 18:5 § 18:6 § 18:7 § 18:8 § 18:9 § 18:10 § 18:11 § 18:12 § 18:13 § 18:14 § 18:15 § 18:16 § 18:17 § 18:18 § 18:19 § 18:20 § 18:21 § 18:22 § 18:23 § 18:24 Introduction Scope of Worker's Compensation -Worker's compensation as exclusive remedy Actions against third parties/co-workers Determining applicability Employee v. borrowed servant and independent contractor Accidental injury arising out of and in the course of employment On the job injury, not during course of employment Frolic and detour Going to and coming from work -Dual purpose trip Benefits c--Periodic benefits -Loss of earning capacity -Permanent partial impairment (for loss of, loss of use of, or disfigurement to the body) -Permanent total disability Practice and procedure under Virginia Worker's Compensation Act -Virginia Worker's Compensation Commission -Claims filing procedure -Statutes of Limitations -Burdens of proof -Discovery -Hearing processes -Appeal xxvii VIRGINIA TORT AND PERSONA!. INJURY LAW CHAPTER 19. PLEADING AND PRACTICE FORMS § 19:1 Introduction I. INTENTIONAL TORTS § 19:2 § 19:3 § 19:4 § 19:5 § 19:6 § 19:7 § 19:8 Sample pleadings for an assault and battery action Sexual battery pleading False imprisonment, defamation, and emotional distress-Retail store False arrest pleadings Intentional infliction of emotional distress complaint involving a minor plaintiff and a retail seller and repossession agent as defendants Trespass to land pleading-Requesting damages and an fojunction Trespass to chattel or conversion-Wrongful taking II. NEGLIGENCE ACTIONS § 19:9 § 19:10 § 19:11 § 19:12 § 19:13 § 19:14 § 19:15 § 19:16 § 19:17 § 19:18 § 19:19 § 19:20 § 19:21 § 19:22 xxviii Motor vehicle liability: general introduction and checklist Motor vehicle accident pleadings-Turn at intersection, failure to signal, speeding, and improper lookout Collision with commercial truck and minor on bicycle Sample wrongful death pleading-Involving a two-car collision Sample forms to qualify a decedent's administrator or administratrix in a Virginia wrongful death action Medical malpractice actions: general introduction and checklist Medical malpractice pleadings-General form Wrongful death action against internist and radiologist for failure to detect cancer Professional malpractice: legal malpractice-,-General form Premises liability pleadings: general introduction Premises liability pleading-Slip and fall case in a grocery store -Complaint by prospective tenant against landlord for falling down an inadequately lighted stairway Nuisance-Complaint for equitable relief and compensatory damages for nuisance Complaint for the intentional interference with a business or contractual relationship PERSONAL INJURY LA w TABLE OF CONTENTS >PRACTICE § 19:23 § 19:24 § 19:25 tery action 10tional § 19:26 § 19:27 § 19:28 <S complaint seller and lamages and gful talcing § 19:29 § 19:30 Complaint for rescission of an agreement induced by fraud Mental distress complaint by homeowner against blasting operations Defamation: libel complaint against newspaper publisher Invasion of privacy complaint -for the unauthorized use of plaintiffs name or picture Products liability actions: general introduction and checklist Complaint to recover damages for breach of implied warranties of merchantability and fitness of a defective product, and negligence Wrongful death pleadings based on a defective truck tire [federal diversity lawsuit] Workers' compensation forms Table of Laws and Rules Table of Cases tion and Index at ~'and nor on bicycle ving a two-car ministrator or ieath action ;roduction and l form and foe--,-General roduction ll case in a 1st landlord d stairway fand ce with a xxix