Written by Sarah Kathryn Stahling, Esq.
Edited by Bill Pfund, Esq.
Although plaintiff’s attorneys continue to grow ever more creative with their pleadings and allegations of negligence, it seems obvious that if Driver A rear ends Driver B, it’s not Driver B’s fault. After all, he was the lead car. How was he supposed to avoid an accident with a car behind him? Couldn’t we go so far as to say, at the very least, Driver A was contributorily negligent per se and barred from recovery?
Unfortunately, it’s never that simple. This will almost always be a jury issue. The Virginia Supreme Court recently addressed this issue in 2002 in Hot Shot Express v. Brooks, 264 Va. 126. In this case, the driver of a tractor trailer was traveling from Pennsylvania to Virginia. When he got to rural Virginia, he realized he had missed his delivery site and, in light of no shoulder to pull onto, stopped his vehicle in the middle of his travel lane and activated his hazard lights. When he started to pull forward again, he felt an impact at the rear of his trailer – the Plaintiff had apparently wedged her vehicle under the rear of the trailer.
At the conclusion of the Plaintiff’s personal injury case, Hot Shot Express moved to strike her evidence on the ground that the Plaintiff was contributorily negligent. After all, she had plainly failed to keep a proper lookout and run into the back of a tractor trailer with flashing hazards. The court denied the motion and explained that the issue of the Plaintiff’s negligence should be submitted to the jury, which ultimately found in the Plaintiff’s favor.
On appeal to the Virginia Supreme Court, Hot Shot Express relied on Perdue v. Patrick, 182 Va. 398 (1944), a case with similar facts, where the Court affirmed the trial court’s decision to strike the plaintiff’s evidence and hold him contributorily negligent as a matter of law. However, in Hot Shot, the Supreme Court ruled that, based on conflicting testimony regarding the tractor trailer’s hazard lights immediately after the accident, reasonable minds could differ on whether the Plaintiff was contributorily negligent as a matter of law. The Court upheld the trial court’s decision to submit the question to the jury.
The Virginia Supreme Court affirmed their line of reasoning more recently in 2006 in Burroughs v. Keffer, 272 Va. 162. In this case, a driver tried and failed to load an excavator onto a low-sling flatbed trailer, which resulted in an overturned excavator that extended several feet onto a rural highway. A second driver saw the overturned excavator and pulled his large truck behind it to divert traffic around the threat. He also personally directed traffic around the excavator. After the second driver had been directing traffic for a few minutes, the Plaintiff ran into the back of his large truck and claimed personal injuries.
At trial, the Plaintiff testified that she was blinded by the sun and did not see the second driver or his large truck before the collision. The defendants argued that she should have seen them from 1200 feet away, which would have given her ample time to react and avoid the accident. Like in Hot Shot, the defendants moved to strike the Plaintiff’s evidence and argued that she was contributorily negligent as a matter of law. The court took the motion under advisement, but ultimately submitted the issue to the jury. Unlike Hot Shot, when the jury returned a verdict for the Plaintiff, the trial court granted the defendants’ motion to set aside the verdict and entered judgment for the defendants.
On appeal, the Virginia Supreme Court reversed the trial court’s decision to set aside the verdict. It reasoned that the jury could have concluded that the Plaintiff was blinded by the sun and did not have 1200 feet or ample time to react, or the jury could have concluded the opposite. Since reasonable people could differ whether the Plaintiff was contributorily negligent, the issue fell within the realm of the jury.
Both Hot Shot Express and Burroughs stress the Virginia Supreme Court’s reluctance to take an issue, especially that of contributory negligence, away from the jury . . . even when the plaintiff rear-ends the defendant. Our job is to explain to our clients that the facts of any case are never as simple as one side’s story and to work to develop the facts and defense strategies to win the jury’s favor.