Present: Koontz, Kinser, Goodwyn, Millette, and Mims, JJ., and 

Carrico and Lacy, S.JJ. 

WINTERGREEN PARTNERS, INC., 

d/b/a WINTERGREEN RESORT 

 OPINION BY 

v. Record No. 091378 JUSTICE S. BERNARD GOODWYN 

 September 16, 2010 

MCGUIREWOODS, LLP 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 In this appeal concerning a legal malpractice action, we 

consider whether the circuit court erred in ruling that the 

client could not prove, as a matter of law, that the judgment 

against it would have been reversed if a timely appeal had been 

filed. 

Background 

 At the conclusion of a jury trial, the Circuit Court of 

Albemarle County entered an $8.3 million judgment against 

Wintergreen Partners, Inc. (Wintergreen), for damages arising 

out of a skiing accident at its resort. McGuireWoods, LLP 

(McGuireWoods), as legal counsel for Wintergreen, filed a 

notice of appeal for Wintergreen, but failed to ensure that the 

trial transcripts were timely filed. Because the issues on 

appeal required consideration of the transcripts, this Court 

dismissed Wintergreen’s petition for appeal. Wintergreen 

Partners, Inc. v. Grigg, Record No. 042956 (July 7, 2005) 

(unpublished). 
Wintergreen filed an action against McGuireWoods, its 

appellate counsel, in the Circuit Court for the City of 

Richmond, alleging legal malpractice. McGuireWoods filed a 

motion for summary judgment on the grounds that, as a matter of 

law, Wintergreen could not meet the standard for proving a 

valid legal malpractice claim. The circuit court granted 

summary judgment in favor of McGuireWoods. Wintergreen 

appeals. 

 On the night of January 20, 2003, Jessica Grigg (Grigg) 

was severely injured after crashing into a snow groomer as she 

descended the Eagles Swoop ski slope at Wintergreen Ski Resort. 

Wintergreen employees Brett Henyon (Henyon) and Jeffrey T. 

Eimutus (Eimutus) were transporting the snow groomer up the 

slope at the time of the collision. 

Milton Grigg, as conservator for Grigg, filed an action 

against Wintergreen and its two employees, Henyon and Eimutus, 

in the Circuit Court of Albemarle County. The action alleged 

that Grigg was injured as the result of negligence on the part 

of Wintergreen and its two employees. 

 The jury was instructed on general negligence and premises 

liability theories of recovery. Instruction 13 stated, 

“Negligence is the failure to use ordinary care. Ordinary care 

is the care a reasonable person would have used under the 

circumstances of this case.” Instruction 10A concerned the 

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principle of respondeat superior, stating that “[a]n employer 

is liable for all damages proximately caused by the negligence 

of its employees.” Jury Instruction 16 provided the following 

regarding premises liability: 

Wintergreen was an occupant of the property on 

which Jessica Grigg was an invitee. An occupant of 

premises has the duty to an invitee: 

 (1) To use ordinary care to have the premises 

in a reasonably safe condition for an invitee’s use 

consistent with the invitation, but an occupant does 

not guarantee an invitee’s safety; and 

 (2) To use ordinary care to warn an invitee of 

any unsafe condition which the occupant knows, or by 

the use of ordinary care should know, unless the 

unsafe condition is open and obvious to a person 

using ordinary care for his or her own safety. 

 If an occupant fails to perform either or both 

of these duties, then the occupant is negligent. 

Wintergreen did not object to Instructions 10A, 13, or 16, 

but objected generally to all instructions on the grounds that 

the circuit court should have granted its previous motion to 

strike. Without objection, the jury was provided a verdict 

form that allowed the jury to indicate, separately for each of 

the three defendants, whether it found for or against that 

defendant. 

 The jury found for Henyon and Eimutus but against 

Wintergreen, awarding Grigg $8.3 million in compensatory 

damages against Wintergreen. Wintergreen challenged the 

verdict as inconsistent and filed a motion to set aside the 

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verdict or, in the alternative, for a new trial. The circuit 

court denied the motion and entered judgment for Grigg against 

Wintergreen in the amount of $8.3 million. 

Analysis 

Wintergreen’s appeal of the underlying personal injury 

judgment was dismissed because of the failure to timely file 

transcripts of the trial with this Court. This Court has 

stated that, with respect to legal malpractice claims involving 

an appeal, the standard of review “is whether the client can 

prove that, had a timely appeal been filed, as a matter of law 

the judgment against him would have been reversed . . . .” 

Goldstein v. Kaestner, 243 Va. 169, 172, 413 S.E.2d 347, 349 

(1992). 

Wintergreen claims that the circuit court erred in 

granting summary judgment to McGuireWoods because Wintergreen 

established its legal malpractice claim under the standard set 

forth by this Court in Goldstein. Specifically, Wintergreen 

asserts that had a timely trial transcript been filed in its 

appeal, it would have been entitled, as a matter of law, to a 

reversal of the judgment against it because of the jury’s 

inconsistent verdict in finding Wintergreen liable but 

exonerating its employees. McGuireWoods contends that the 

circuit court did not err because two possible theories of 

recovery were presented to the jury, and the jury’s verdict 

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finding Wintergreen liable but exonerating Henyon and Eimutus 

was not inconsistent as a matter of law. 

 It is well settled in Virginia that “ ‘where a master and 

servant are sued together in tort, and the master’s liability, 

if any, is solely dependent on the servant’s conduct, a verdict 

for the servant necessarily exonerates the master.’ ” Shutler 

v. Augusta Healthcare for Women, P.L.C., 272 Va. 87, 92, 630 

S.E.2d 313, 316 (2006) (quoting Roughton Pontiac Corp. v. 

Alston, 236 Va. 152, 156, 372 S.E.2d 147, 149 (1988)); see also

Hughes v. Doe, 273 Va. 45, 48, 639 S.E.2d 302, 304 (2007) (“the 

crux of respondeat superior liability is a finding that the 

employee was negligent”). However, this Court recognizes 

exceptions to the rule “where the master’s liability is not 

derived solely from the servant’s acts.” Roughton Pontiac 

Corp., 236 Va. at 156, 372 S.E.2d at 149. The master’s 

“liability may be predicated upon evidence showing his own 

tortious acts or omissions independent of or in combination 

with the acts of the servant or upon the actions of another 

employee. In these situations, a judgment entered against the 

master will be allowed to stand, notwithstanding the servant’s 

exoneration.” Id. at 156, 372 S.E.2d at 149-50 (internal 

citations omitted); see also Virginia State Fair Ass’n v. 

Burton, 182 Va. 365, 370-71, 28 S.E.2d 716, 719 (1944) (holding 

that the fair association was independently negligent for 

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failing to keep the premises reasonably safe for invitees). 

In this case, the jury was instructed regarding both 

respondeat superior and premises liability theories concerning 

Wintergreen’s alleged negligence. This Court has stated that 

“instructions given without objection become the law of the 

case and thereby bind the parties in the trial court and this 

Court on review.” Owens-Illinois, Inc. v. Thomas Baker Real 

Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d 344, 346 (1989); see 

also Ulloa v. QSP, Inc., 271 Va. 72, 80, 624 S.E.2d 43, 48 

(2006); T.L. Garden & Assocs. v. First Savings Bank of Va., 262 

Va. 28, 31, 546 S.E.2d 705, 706 (2001). Jury Instructions 10A, 

13, and 16 and the verdict form, which allowed the jury to 

assess Wintergreen’s and the employees’ liability separately, 

were given without objection from Wintergreen. Because 

Wintergreen neither objected nor assigned error to the 

instructions or the verdict form, they became the law of the 

case. 

Because Grigg was an invitee on Wintergreen’s premises, 

Instruction 16 permitted the jury to find that Wintergreen, as 

the occupant of the premises, failed to exercise ordinary care 

in rendering the premises reasonably safe for Grigg’s visit or 

failed to warn of unsafe conditions that were known to it and 

unknown to Grigg. Violation of these duties supports an 

independent basis of liability against Wintergreen, separate 

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and apart from Wintergreen’s responsibility for any alleged 

negligence perpetrated by Henyon and Eimutus. Wintergreen’s 

potential liability asserted in Instruction 16 is not derived 

solely from Henyon and Eimutus’ actions on the slope on the 

date of the accident; Instruction 16 provides a basis upon 

which Wintergreen could be liable for tortious acts or 

omissions in addition to and independent of the acts of Henyon 

and Eimutus. Therefore, even though the jury found that the 

employees were not negligent, Instruction 16 permitted the jury 

to find that Wintergreen was negligent, independent of the acts 

of its employees, Henyon and Eimutus, for failing to keep the 

premises reasonably safe or for failing to warn properly.*

Under these circumstances, we hold that, even if the 

appeal of the judgment against Wintergreen had not been 

dismissed, this Court would not have been required to reverse 

the Grigg judgment as a matter of law, because Jury Instruction 

16 supported the jury’s finding that Wintergreen could be 

liable for Grigg’s injuries independent of the acts of Henyon 

or Eimutus. Therefore, we hold that the circuit court did not 

err in granting McGuireWoods’ motion for summary judgment. 

 *

 McGuireWoods did not, on Wintergreen’s behalf in the 

dismissed appeal, assign error regarding the sufficiency of the 

evidence proving that Wintergreen failed to keep the premises 

safe or failed to adequately warn of dangerous conditions, and 

Wintergreen has not asserted the failure to challenge the 

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Conclusion 

For the foregoing reasons, we will affirm the judgment of 

the circuit court. 

Affirmed.

 

sufficiency of the evidence as a basis for its malpractice 

claim. 

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