Happy Holidays! Setliff Law is proud to help our clients solve unique problems nationwide. Sometimes, though, we see issues that pop up with some regularity, especially around the holidays. With that in mind, and in the spirit of giving, here are some common questions from clients that we’ve had the pleasure of answering during Christmases past.

“Last year, one of our guests – my grandmother, actually – had her fill of eggnog at our family holiday party. She tried walking home and ended up in the hospital after a mysterious collision with an unknown vehicle. Thankfully, grandma wasn’t too angry – but if she has a change of heart, could we be liable?” – Elmo, Spotsylvania

Well, Elmo, while Grandma may want to start canvassing your neighborhood for dashcam and doorbell footage, under Virginia law, she doesn’t have much recourse against you. Virginia does not provide for “social host liability,” which means that you, as a party host, don’t have a responsibility to not overserve Grandma. Unless, of course, Grandma was a minor, in which case you should call me back as soon as possible.

“One of my employees – not one of the best ones, mind you – has been avoiding any semblance of holiday spirit. Upon examination, it turns out he celebrates an odd holiday known as ‘Festivus,’ which follows a belief system that I find fascinating. That said, I’m not comfortable letting him take December 23rd off. Any advice?” – Kruger, Petersburg

Believe it or not, Kruger, if you don’t let the employee have December 23rd off, a court might have some real grievances to air with you. The Equal Employment Opportunity Commission defines “religion” fairly broadly. Under federal law, an employee’s practice of religion is entitled to a level of protection, and those protections apply whether the religious beliefs or practices inquestion are common or non-traditional, and regardless of whether they are recognized by any organized religion. If your employee is a genuine follower of the belief system giving rise to “Festivus,” any employment actions you take against him on that basis may subject you to liability – even if that belief system seems odd to you. See, for example, EEOC v. United Health Programs of Am., Inc., 213 F. Supp. 3d 377, 402 (E.D.N.Y. 2016) (holding, where plaintiff alleged harassment or denial of religious accommodation, that employer’s use of conflict resolution program known as “Onionhead” or “Harnessing Happiness” was a “religion” within the meaning of Title VII, since program’s system of beliefs and practices was more than intellectual and involved ultimate concerns signifying religiosity, including chants, prayers, and mentions of God, transcendence, and souls).

“My company hosts a holiday party every year. We are concerned that uninvited guests may try to crash the festivities – even though we are on the 30th floor of our downtown skyscraper. The husband of one of our employees has offered to serve as informal security for the event. Is that a good idea?” – Ms. Nakatomi, Crystal City

It depends on whether he can control his temper. In Virginia, the only duty a property owner owes to a trespasser is to not injure the trespasser “intentionally or wantonly.” So while you have no duty to keep the trespasser from walking over broken glass, for example, your “volunteer” muscle can only use “reasonable force” to remove the trespassers. But keep in mind – even if he isn’t your employee, if he is acting at your behest or on your behalf, he is probably still your agent, making you liable for anyone that he may throw out of a window.

“One of our more impressionable students had a mishap on the playground – we don’t know how, but he ended up with a chunk of his tongue stuck to a flagpole. His parents are not happy. Should we lawyer up?” – Miss Shields, Nansemond County Public Schools

Frankly, Miss Shields, if you have to ask, the answer to that question is always yes. Thankfully, in your situation, things may be complicated for your student’s parents. First, depending on how old the student is, he may have known better than to stick his tongue on a flagpole. In Virginia, children under age 7 are presumed to be incapable of negligence, but children between 7 and 14 can be held liable for their actions if they have “the ability to understand and appreciate the danger, and that the child’s actions were similar to a reasonable person of like age, intelligence and experience under the circumstances.” Doe v. Dewhirst, 240 Va. 266, 396 S.E.2d 840 (1990). So, unless you’ve got some questions about the competence of your teachers, the school has a good chance of proving that the child was contributorily negligent, which in Virginia, eliminates any recovery for a plaintiff.

Just as important is the fact that this incident occurred on public property, meaning that the boy and his parents have some procedural hoops to jump through before they can file a lawsuit. They also have to navigate the complexities of sovereign immunity – counties in Virginia share the same level of immunity as does the state itself. So yes, you should lawyer up, and while you won’t be out of the woods by New Years, you may have good luck at the motion to dismiss stage.

“One of my employees is a bit ‘out there.’ He’s been accused of kidnapping, public nudity, and trespassing in a theme park. Last week, he took a proprietary food additive from our labs and used it to coat the bottom of a sled, causing over $200,000 in damage. Then, for no reason that I could discern, his cousin kidnapped me on Christmas Eve. Any advice on what I should do with him?” – Frank Shirley, Frogtown

Frank, just one piece of advice – don’t forget the Christmas Bonus next year. That said, in Virginia, an employer may be liable for both negligent hiring and negligent retention of an employee who causes harm to another. To properly allege a claim of negligent hiring, a plaintiff must allege only that the employer knew, or by exercising ordinary care could have known, that the employee at fault was an incompetent and dangerous person to be entrusted with his/her job duties. So you and your company can absolutely be held liable for destruction caused by this employee. Generally, though, a company is only on the hook for actions of an employee while they are acting within the scope of their employment. But, given what you’ve described about your employee’s quirks, it seems like just a matter of time before he does something that causes you problems. Unless you’ve got some incredible reason not to, I’d recommend you take advantage of Virginia’s at-will employment laws to send this employee a gingerbread flavored pink-slip.

Happy Holidays and Happy New Year from the staff and attorneys of Setliff Law. If you need assistance dealing with these or any other holiday related challenges, please contact Anthony Tamburro (atamburro@setlifflaw.com) at 804-377-1268 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.

*These stories and clients are fictional.