Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Millette, JJ., and Carrico, S.J.
WILLIAM P. RASCHER
OPINION BY
v. Record No. 090193 JUSTICE LAWRENCE L. KOONTZ, JR.
February 25, 2010
CATHLEEN FRIEND
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge Designate
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
the jury might draw from the evidence which would sustain the
plaintiff’s cause of action. McGowan v. Lewis, 233 Va. 386,
387, 355 S.E.2d 334, 334 (1987); see also Austin v. Shoney’s,
Inc., 254 Va. 134, 138, 486 S.E.2d 285, 287 (1997).
Similarly, “[o]n appeal, we review a trial court’s judgment
striking the evidence, considering the facts in the light most
favorable to the plaintiff and drawing all fair inferences
from those facts.” Green v. Ingram, 269 Va. 281, 290, 608
S.E.2d 917, 922 (2005).
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,
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“stared” at Friend and was confident that she could see him.
Rascher then looked down at his bicycle’s speedometer for “a
half second to a second” and determined that he was traveling
at about 19 m.p.h. When Rascher looked up, he saw that Friend
had turned left and that her minivan was about three to five
feet in front of him in his lane of travel.
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,
Code § 46.2-825, and pre-paid the statutory fine for that
offense.
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.
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A jury trial was held in the circuit court on September 8
and 9, 2008 in which evidence in accord with the above recited
facts was received. Friend made a motion to strike Rascher’s
evidence at the conclusion of Rascher’s case-in-chief and
renewed that motion at the conclusion of all the evidence,
contending that Rascher had failed to maintain a proper
lookout because he looked at his speedometer after determining
that Friend intended to turn left across his lane of travel.
The circuit court granted Friend’s motion, ruling that while
“[t]here’s no question that [Friend] was negligent in failing
to yield the right of way,” “Rascher was contributor[ily]
negligent in not exercising ordinary care to keep a reasonable
lookout [when] he took his eyes off the intersection of the
road and [Friend’s minivan] and looked down at his
speedometer.” The court reasoned that had Rascher not taken
his eyes off the road to check his speed, “maybe he could have
avoided the accident” because he would have seen Friend turn
sooner. On October 24, 2008, the circuit court entered a
final order memorializing its ruling granting the motion to
strike and entered judgment for Friend, with Rascher noting
specific objections in writing. We awarded Rascher this
appeal.
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DISCUSSION
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.
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Contributory negligence consists of the independent
elements of negligence and proximate causation. Karim v.
Grover, 235 Va. 550, 552, 369 S.E.2d 185, 186 (1988).
Accordingly, “[w]hen a defendant relies upon contributory
negligence as a defense, he has the burden of proving by the
greater weight of the evidence not only that the plaintiff was
negligent, but also that his negligence was a proximate cause,
a direct, efficient contributing cause of the accident.” Id.
(internal quotations and citation omitted)
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
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seen the defendant and could have easily avoided the
collision, but was inattentive. See, e.g., Sayre v. Shields,
209 Va. 409, 410-11, 164 S.E.2d 665, 667 (1968).
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, Code § 46.2-823 provides that a
person operating “any vehicle traveling at an unlawful speed
shall forfeit any right-of-way which he might otherwise have.”
Accordingly, while a person operating a vehicle on a public
road with the right-of-way has a continuing duty to maintain a
proper lookout, he also has a duty to monitor his speed.
Thus, the jury could have determined that Rascher’s action of
momentarily looking at his speedometer to check his speed was
a reasonable action under the circumstances.
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
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event would not have occurred.’ ” Beverly Enterprises-
Virginia, Inc. v. Nichols, 247 Va. 264, 269, 441 S.E.2d 1, 4
(1994) (quoting Coleman v. Blankenship Oil Corp., 221 Va. 124,
131, 267 S.E.2d 143, 147 (1980)); accord Williams v. Le, 276
Va. 161, 167, 662 S.E.2d 73, 77 (2008). There may be more
than one proximate cause of an event. Williams, 276 Va. at
167, 662 S.E.2d at 77 (citing Panousos v. Allen, 245 Va. 60,
65, 425 S.E.2d 496, 499 (1993)). As with questions of
negligence, whether an act was a proximate cause of an event
is best determined by the jury. Kellermann v. McDonough, 278
Va. 478, 493, 684 S.E.2d 786, 793 (2009); Moses v.
Southwestern Va. Transit Mgmt. Co., 273 Va. 672, 679, 643
S.E.2d 156, 160 (2007); Jenkins, 251 Va. at 128, 465 S.E.2d at
799. This is so simply because the particular facts of each
case are critical to that determination.
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.
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The evidence showed that Rascher was no more than 50 feet
from the intersection of Antietam Road and the school’s
driveway where the accident occurred when he glanced down at
his speedometer to observe his speed, which was just under 20
m.p.h. At that rate of travel, Rascher would have covered the
distance to the intersection in less than two seconds. See
Code § 46.2-880 (statutory speed table indicating that 20
miles per hour equates to 29.3 feet per second). On these
facts, a jury reasonably could have found that Rascher would
have had no opportunity to avoid the accident even if he had
maintained visual contact with Friend’s vehicle. Thus, the
alleged negligence on his part would not have been a proximate
cause of the accident as a matter of law.
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
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expense to the parties when a plaintiff is successful on
appeal and a new trial is required. If the court overrules
the motion to strike, submits the case to the jury and a
plaintiff’s verdict is returned, the court may set the verdict
aside as being contrary to the evidence or without evidence to
support it. If this Court reaches a different conclusion upon
appeal, the record includes the verdict and we can enter final
judgment, thus ending the case.” Id. (citing Code § 8.01-
430).
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.
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