Literally All Law School People
v.
The Darden Foundation
75 U.Va 9 (2022)
Bninski, J. delivers the opinion of the court.
Today, my colleagues and I return to a subject that has plagued the Law School community since January 2021—namely, the construction of the seemingly as-yet-unnamed hospitality facility that will “replace the long-time UVA Inn at Darden.”[1] While, like many legal professionals, the members of the Court normally rejoice in the opportunity to hold forth, and may, for that reason, write many unnecessary and repetitive articles bemoaning minor inconveniences, it is with great sorrow that we raise the topic of this neo-“UVA Inn at Darden” once more.
Facts and Posture of the Case
It has come to our attention that, despite being enjoined in 2021 to halt construction “and return Grounds to their former glory,”[2] Darden has persisted in constructing a brick behemoth; a hospitality horror;[3] a conference center cataclysm. We note this blatant disrespect for the authority of this Court as we turn our attention to the new, more specific, complaint before us.
Literally All Law School People brought this class action, seeking relief from the incessant noise of the Darden hospitality facility construction. The complaint cites months plagued particularly by beeping that is audible in every outdoor Law School space. The Class of 2023, which makes up part of the general class of plaintiffs, points out that, given the coincidence of their tenure at the Law School with the early days of the COVID-19 pandemic and its attendant need to spend time outside if at all feasible, they are particularly injured by the construction noise. They note that the construction project will not end until after their graduation, and so they have no hope for any beep-free era during their Law School years.
The District Court of Petty Complaints granted the relief sought by Plaintiffs, and we now address the Darden Foundation’s appeal.
Because this Court is not only petty but also capricious, we are prepared to overlook the fact that the Darden Foundation persisted in its unlawful construction project after the injunction of 2021.[4] For that reason, we do not immediately dismiss the appeal or hold the Darden Foundation in contempt of court.[5]
The Darden Foundation argues on appeal that noise is an inherent part of any construction project and that beeping, specifically, plays an important role in assuring the safety of the construction site by notifying personnel that machinery is backing up. Moreover, the Darden Foundation points to two Occupational Safety and Health Administration requirements, 29 CFR 1926.601(b)(4) and Section 1926.602(a)(9)(ii). These requirements, the Darden Foundation argues, place on it a legal obligation to provide “audible alarms” that accompany the reverse movement of any motor vehicle or earthmoving equipment that suffers from an obstructed rear view. The appellant’s brief expresses horror at the idea of deviating from OSHA’s requirements.[6]
The appellees’ brief consists largely of unhinged ramblings about “that hideous BEEP.” The appellees claim that this is because the brief was written “under the tent in Spies and BEEP we are really struggling to think straight with BEEP all the interruptions, sorry petty judge people.”
Discussion
This Court has great respect for safety. And because each year, thousands of constructions sites will see a fatality,[7] we recognize the importance of the Darden Foundation’s commitment. However, the Foundation has overlooked guidance from OSHA which indicates that, in lieu of hideous beeping, an observer can signal to a driver that it is safe to back up. This approach has much to recommend it, namely a lack of beeping and the creation of a job.[8]
Because this Court is capricious, we also took it upon ourselves to develop the record. On the Law School lawn, outside the august entrance to our institution: beeping. Outside Slaughter Hall: beeping. In the outdoor spaces surrounding ScoCo: beeping. In the Purcell Garden: beeping. In Spies: beeping. The Court finds it all very annoying.
Conclusion
Due to this annoyance, and bolstered by the Darden Foundation’s failure to adequately explore alternatives open to it under OSHA, we uphold the judgment of the district court. The beeping is enjoined. The Darden Foundation can supply one or more signal persons to ensure safety of movement, or it can refrain from ever allowing its machinery to back up. This Court, for one, will not back down.
Pazhwak, J., concurring.
The majority correctly upholds the injunction against the annoying beeping of construction vehicles at the new “UVA Inn at Darden” site. However, due to their varied places of residence away from said site, my dignified colleagues failed to recognize another subclass of law students who have suffered great and terrible injury from the construction site noise: Copeley Hill residents. Many of the graduate Copeley Hill apartment buildings, especially those near Copeley Field, were often exposed to copious construction noises during many of the daylight hours of the weeks and weekends for the past three years. Given the thin walls of these apartments, the noises often penetrated at inopportune times, waking up bleary-eyed law students sleeping off major memo hangovers, among other things. The now-3L Copeley residents were particularly affected, forced to endure construction noises while confined to their abodes during the pandemic.[9] The majority ought to reconsider additional sanctions beyond enjoinment, including uncapped punitive damages or, in the alternative, ordering lifetime access for affected 3L Copeley residents to the amenities that will be available in what is sure to be a luxurious building befitting the wealthy donors for whose benefit it was built.
Walsh, J., concurring.
I agree wholeheartedly with the majority’s reasoning in today’s decision. After all, the only good thing to come out of the Darden construction is the fact that law students keep trying to aim for it when playing softball on Copeley Field. I write separately today because I wish to underscore the incredible, yet unsurprising, callousness that the Darden Foundation displayed in choosing to maintain their construction project’s incessant beeping, when hiring a signal person—as Justice Bninski so wisely observed—had been an option this entire time.
While I expect little from the Darden School—and even less from the corporation that supports it—I am astounded by the audacity of the Darden Foundation. I respect OSHA requirements as much as the next Justice, but it is outrageous for the Foundation to cite safety considerations as their excuse for inflicting yearsof emotional, mental, and physical damage—in the form of beeping—on generations of UVA Law students. What of the students’ safety? Or the faculty and staff employed by this institution, for that matter? Do you think that constantly being forced to listen to the obnoxious BEEPs emitted by the Darden construction site is goodfor us? It isn’t—after all, aside from the hearing damage that is all but ensured to result from the beeping, the distractions created by the beeping must also be considered. The overwhelming annoyance presented by the beeping is enough to distract anyone, even those with ears of steel and otherwise-endless focus, from important tasks, such as looking both ways before crossing that weird diagonal crosswalk next to the school that was created as a result of—you guessed it—the Darden construction.
The fact of the matter is that the Darden Foundation’s claims of concern for worker safety ring hollow in light of their clear disregard for the safety of all others who may be affected by their construction project. In classic Darden snake fashion, the Foundation attempts to use rules and considerations that are meant to help others so that it may benefit only itself. Thankfully, this Court saw through these attempted manipulations of the law and chose the remedy required by justice: enjoining the beeping.
Accordingly, I concur.
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amb6ag@virginia.edu
mwp8kk@virginia.edu
saw8rc@virginia.edu
[1] https://news.virginia.edu/content/dardens-new-hotel-halfway-its-spring-opening
[2] Students v. Construction, 73 U.Va. 17 (2021).
[3] This is, we concede, dramatic license; the building itself is not that bad.
[4] And perhaps, someday, we will get to confer at the Conference Center. The members of the Court love to confer, fancily.
[5] We don’t want to tempt fate. The Darden Foundation probably already has contempt for this Court.
[6] We find the Darden Foundation’s newfound respect for the law honestly just insulting.
[7] https://www.osha.gov/data/commonstats
[8] We note that the Darden Foundation’s assets were listed in 2020 as in excess of $500 million; It can afford to pay a signal person. https://www.causeiq.com/organizations/university-of-virginia-darden-school-foundation,546046419/
[9] Some particularly unfortunate 3Ls with exceptionally disconnected pandemic sections had the double whammy of enduring construction noises at some times and roaring softball game cheers at others, reminding them of their tragic, lonely situations.