Rascher v. FriendRascher v. Friend
In this appeal, we consider whether the circuit court erred in striking the plaintiff‘s evidence in a personal injury case arising from a motor vehicle accident on the ground that the plaintiff was contributorily negligent as a matter of law. The plaintiff contends that the issue of his contributory negligence should have been submitted to the jury. Additionally, the plaintiff contends that, even if his actions were negligent, the jury could have found that his negligence was not a proximate case of the accident that resulted in his injuries.
BACKGROUND
The well established standard under which a circuit court should review the evidence in a jury trial before granting a defendant‘s motion to strike based on the assertion that the plaintiff was contributorily negligent as a matter of law requires the court to accept as true all the evidence favorable to the plaintiff as well as any reasonable inference
When so viewed, the evidence presented at trial established that around noon on September 2, 2006, William P. Rascher was traveling on his bicycle south on Antietam Road in Prince William County, a two-lane road running through a primarily residential area with a 25 m.p.h. speed limit. Cathleen Friend was driving her minivan north on the same road. Antietam Elementary School lies west of the road and is reached though a circular driveway. Although it had been raining earlier in the day and the pavement was wet, the weather was clear and visibility was optimal.
As Rascher approached the intersection of Antietam Road and the school‘s driveway, he observed Friend stopped in her minivan in the opposite lane approximately 50 feet away, apparently waiting to make a left turn into the school‘s driveway. Rascher, who was wearing a red riding jacket,
Rascher struck the rear passenger side of Friend‘s minivan. From the force of the impact, Rascher was thrown forward over the handlebars of the bicycle and landed on the road. As a result of injuries to his shoulder, thigh, and wrist, Rascher subsequently incurred over $15,000 in medical expenses.
Following the accident, Friend told Rascher that she had not seen him and accepted responsibility for the collision. Friend was charged with failing to yield the right of way,
On October 1, 2007, Rascher filed a complaint against Friend in the Circuit Court of Prince William County. Rascher sought $250,000 in damages for his medical expenses, pain, and suffering. On October 25, 2007, Friend filed an answer denying liability for Rascher‘s injuries and further asserting that she would rely on the defense of contributory negligence.
Rascher contends that the circuit court erred in granting Friend‘s motion to strike because the jury could have determined from the evidence that Rascher had acted reasonably under the circumstances and, thus, had not acted with any negligence. He further contends that even if his failure to maintain constant visual contact with Friend‘s vehicle was negligent, the jury could nonetheless have found that such negligence was not a proximate cause of the accident. We agree with Rascher on both points.
The principles of contributory negligence are familiar and well settled. “Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances. The essential concept of contributory negligence is carelessness.” Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d 404, 407 (2005) (citations omitted). “The issue whether a plaintiff is guilty of contributory negligence is ordinarily a question of fact to be decided by the fact finder. The issue becomes one of law for the circuit court to decide only when reasonable minds could not differ about what conclusion could be drawn from the evidence.” Id. at 389, 611 S.E.2d at 407.
Generally, when contributory negligence is asserted by the defendant in a motor vehicle accident case and it is not disputed that the plaintiff had the right of way, the defendant must show that the plaintiff was negligent because he actually saw or had the opportunity to see the defendant‘s vehicle, but failed to maintain a proper lookout, and that this negligence was a proximate cause of his injuries because otherwise the plaintiff would have been able to avoid the accident. See, e.g., Butler v. Yates, 222 Va. 550, 554, 281 S.E.2d 905, 907 (1981). Typically, the defendant prevails by showing that the plaintiff actually saw the defendant‘s vehicle, but thereafter completely disregarded the possibility that the defendant would not yield the right of way, see, e.g., Branson v. Wise, 206 Va. 139, 141-42, 142 S.E.2d 582, 583-84 (1965), or that the plaintiff reasonably should have
In this case, however, the evidence showed only that Rascher, clearly aware of Friend‘s vehicle and that he had the right of way, looked away from his lane of travel only momentarily to check his speed. While the circuit court presumed that had Rascher not done so he might have been able to avoid the accident, the evidence was by no means so clear on this point as to establish that Rascher was negligent as a matter of law. Moreover,
The law of proximate causation, as an element of contributory negligence, is also well established. ” ‘The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that
As indicated above, Rascher‘s alleged failure to maintain a proper lookout when he had the right of way and could assume that Friend would not turn illegally in front of him would only have been contributorily negligent if the evidence established that he could have avoided striking Friend‘s vehicle upon maintaining a proper lookout. If the evidence established that he could not have avoided the collision, then any negligence on his part would not have been a proximate cause of the accident.
Having resolved the issues raised in this appeal, we take the opportunity to again stress the principle of tort litigation that issues of negligence and proximate cause ordinarily are questions of fact for the jury to determine, rather than questions to be determined by the trial court as a matter of law. The trial court should overrule a motion to strike the evidence in every case in which there is any doubt that the party with the burden to do so has failed to prove negligence, contributory negligence, and proximate cause, as the case may be. Brown v. Koulizakis, 229 Va. 524, 531, 331 S.E.2d 440, 445 (1985). The rule “avoids the delay and
CONCLUSION
For these reasons, we hold that circuit court erred in granting Friend‘s motion to strike Rascher‘s evidence on the ground that Rascher was contributorily negligent as a matter of law. Accordingly, the judgment in favor of Friend will be reversed, and the case remanded to the circuit court for a new trial.
Reversed and remanded.