Four years ago, a 15-year-old student at the Miller School of Albemarle suffered life-altering injuries when his lower torso was punctured by falling on a cut bamboo stalk near the Rivanna River. Last month, the young man emerged with a $10 million jury verdict that led to settlements totaling $10.75 million.
“The nature of the injury to our client is shocking,” says Kevin Biniazan, who represented the boy, known in privacy-protecting court documents as Q.A.P. “I think the jury got this right.”
This case began when Q.A.P., as a boarding sophomore at the private college-preparatory school near Crozet, was part of a group performing maintenance on the property of a Veterans of Foreign Wars lodge near the Rivanna River.
“This was a recipe for disaster,” says Biniazan. “They were cutting and lopping bamboo canes in a way that created more dangers than when they first walked in there.”
In his lawsuit and in his comments in a telephone interview, the Virginia Beach-based Biniazan alleges poor supervision for a dangerous exercise.
“We felt from the very beginning that what these students, these teenagers, were asked to do was something that they never should have been asked to do,” says Biniazan, likening partially cut bamboo canes to “little spears sticking out of the ground waiting for someone to take a misstep.”
According to the complaint filed two years ago in Charlottesville Circuit Court, that misstep happened on October 24, 2018, when Q.A.P. slipped and fell. The suit named the Miller School and teacher Devin Barczewski, as well as the VFW Post 1827 and employee Matthew Hooser. None of these parties would comment on the case.
The VFW settled its role in the case for $750,000 in April. In July, Miller School lawyer Stanley Wellman filed a “special plea of charitable immunity” in hopes of getting the litigation dismissed, but that did not work, and the civil lawsuit moved forward.
“Bamboo canes have been used as spears and spikes and elements of war for decades if not hundreds of years,” says Biniazan, noting their boot-piercing ability against American soldiers in Vietnam.
Biniazan says the wounds to Q.A.P. were devastating, as the bamboo impaled his anal sphincter, punctured his rectal wall, and skewered his bladder. The stalk went so far that it punctured the boy’s abdominal wall, Biniazan says, and he spent nearly six weeks defecating into a colostomy bag.
While those injuries were surgically repaired, Biniazan says that both sides agreed that the plaintiff’s ability to reproduce via sexual intercourse was permanently disrupted due to a shutdown in sperm production and scar tissue in his vas deferens, the tube that should transmit sperm. The defense tried to show that IVF, in-vitro fertilization, would be an option, but the plaintiff argued otherwise.
“He is unlikely to have children, even artificially through IVF, essentially because the manufacturing plant was shut down by the injury and never really got back to normal,” says Biniazan, who added his client, now 20, suffers from post-traumatic stress disorder.
The defense showed the jury smiling Instagram pictures of Q.A.P. as a highly recruited varsity basketball player at a Division I college in South Carolina.
After a four-day trial in November, a seven-person Charlottesville jury sided with the plaintiff and awarded $10 million. It was the last scheduled trial for retiring judge Richard E. Moore. Two weeks later, Moore signed an order dismissing the case, a move that Biniazan says was due to a settlement in that same amount.
Legal analyst David Heilberg explains that a post-verdict settlement frees a losing defendant from any repercussions from an adverse verdict sitting on the legal books while a plaintiff benefits by getting the money without fear of a reversal or reduction on appeal.
Heilberg says that the defense likely realized that paying the interest on a bond equal to the amount of the verdict and then paying additional attorney fees would be a costly proposition in a case with such discomforting facts.
“When you describe what happened to the kid I’m cringing,” says Heilberg. “What he went through was pretty awful.”
Heilberg says that the dollar amount of this case makes it one of the largest in local history. However, neither he nor any agency, even the Virginia Trial Lawyer’s Association, claims to keep track of local superlatives.
Both sides in the recent litigation acknowledged that the Miller School held a $25 million umbrella insurance policy, and Biniazan concedes that the VFW’s lower insurance limit was a factor in settling with that group.
“We always felt that the Miller School was the most responsible for what happened because it was their student and they were the persons and the entity responsible for the safety of our client,” said Biniazan.
The coeducational school was founded in 1874 as the Miller Manual Labor School, and the institution has recently re-emphasized its roots through its “Minds Hands Hearts” program.
“Sometimes the best classroom isn’t a classroom,” asserts a program brochure.
The lawsuit sent shockwaves through City Hall.
“What does this do for volunteerism?” asked a government administrator, while declining an on-the-record interview.
Another person dismayed by this incident is Carolyn Schuyler, the founder of a nature play center called Wildrock (and one of this year’s “Distinguished Dozen” honorees). Schuyler said that her heart goes out to the young man and his family, yet she doesn’t want children to retreat from nature or from service-based learning.
“It is tragic when accidents occur not only for those most impacted, but for those children that may lose opportunities due to increased fear,” says Schuyler. “The benefits of outdoor time and volunteerism are so significant for our youth that we need to continue to provide these experiences as safely as we can.”
In early July, city crews cut a stand of bamboo on Cabell Avenue after a resident alleged that the bamboo was covering the road. Will city crews need to revise procedures? While Charlottesville’s director of public works did not return phone messages, Biniazan says this verdict should not deter maintenance of bamboo.
“It can be lopped well,” says Biniazan, “and there are trained professionals who can perform the function.”