In its April 3, 2025 decision in Sheriff Roger L. Harris, et al. v. Dennis Christopher Howard, the Supreme Court of Virginia resolved the case solely on the issue of illegality, one of two issues ruled on by the Court of Appeals. The Supreme Court expressly declined to address the Court of Appeals’ analysis of whether the defendants had committed gross negligence. This leaves the Court of Appeals’ analysis of gross negligence in Howard v. Harris (March 5, 2024) as controlling precedent and raises important questions about how courts should analyze whether a defendant exercised “some degree of care” sufficient to bar a gross negligence claim from reaching the jury.
And while one might assume that it is ‘merely a matter of fact to be decided by a jury’, the Court has clarified that the existence of ‘some degree of care” means the defendant is not grossly negligent, as a matter of law. Howard demonstrated how challenging it can be to apply this doctrine. ‘
In his article titled Litigating “Some Care” in Gross Negligence Claims After Howard v. Harris, appellate attorney John O’Herron discusses the relevance and importance of the initial pleading, the relationship between the negligent acts alleged and harm ultimately suffered, and the temporal scope of the “some care” inquiry.
