PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Kinser, and
Lemons, JJ., and Stephenson, S.J.
LEISA D. KIMBERLIN
OPINION BY
v. Record No. 011393 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
PM TRANSPORT, INC., ET AL. June 7, 2002
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
In this appeal, we determine whether the trial court erred
in striking the plaintiff's evidence and entering judgment in
favor of the defendants.
I
Leisa D. Kimberlin (the Plaintiff) filed a personal-injury
action against the Administrator of the Estate of James E. Rapp,
Jr., deceased, and Rapp's employer, PM Transport, Inc.
(collectively, the Defendants). The Plaintiff alleged that her
injuries sustained in an automobile accident were proximately
caused by Rapp's negligence while he was acting in the scope of
his employment.
Following a three-day jury trial, the trial court struck
the Plaintiff's evidence and entered final judgment in favor of
the Defendants. We awarded the Plaintiff this appeal.
II
According to well-established precedent, we must view the
evidence and all reasonable inferences deducible therefrom in
the light most favorable to the Plaintiff. The Plaintiff was
injured in a motor-vehicle accident that occurred on the night
of November 21, 1997. ∗ Rapp was driving a tractor pulling a
fully loaded tanker containing 8,000 gallons of gasoline. Rapp
was traveling in the northbound lane of U.S. Route 220 Business,
in Alleghany County, near the City (now Town) of Clifton Forge.
A short distance south of the accident scene, U.S. Route 220
Business intersects with U.S. Route 220.
The accident scene is in an area where rocks often fall
onto the highway. Consequently, there were three highway signs
in the area that read, "Watch for Falling Rocks." Rapp was very
familiar with this portion of the highway because he traveled it
often, and he was aware of the signs.
The night of the accident was dark and stormy. Rain was
falling, and, according to Rapp, it was "real foggy." There was
no artificial lighting in the area.
As Rapp turned the tractor-tanker from Route 220 onto Route
220 Business, the driver of an approaching vehicle flashed the
vehicle's headlights. Rapp considered this a warning. Despite
this warning, however, Rapp increased his tractor's speed and
proceeded along Route 220 Business about 45 miles per hour, the
posted speed limit.
∗
Shortly after the accident, Rapp died of causes unrelated
to the accident. Thus, much of the evidence consists of
statements admitted pursuant to Code § 8.01-397, the so-called
"Deadman's Statute."
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Although Rapp had an unobstructed view of 300 to 400 yards
and his vehicle was equipped with headlights and fog lights,
Rapp's tractor struck a rock in the middle of his lane of
travel, and he lost control of the vehicle. The tractor-tanker
veered to the left, struck a rock wall, and came to rest
"snug[ly]" against the wall on the west side of the highway.
Gasoline from the tanker and diesel fuel from the tractor were
rapidly spilling onto the highway, which slopes downgrade to the
north. Rapp quickly exited the tractor and ran north along the
highway.
As Rapp proceeded, he observed a vehicle, operated by the
Plaintiff, approaching from the north. Rapp tried to warn the
Plaintiff of the impending danger, but the Plaintiff never saw
Rapp or his vehicle.
As the Plaintiff approached the accident scene, she
observed what she believed to be fog, but which may have been
smoke. The Plaintiff reduced the speed of her vehicle to 20 or
25 miles per hour. Immediately upon entering the fog or smoke,
the Plaintiff's vehicle exploded and was engulfed in flames, and
the Plaintiff sustained burns.
The day after the accident, a rock, described as "large,"
was found near the front of Rapp's vehicle. Rapp never saw the
rock and gave no explanation for not having seen it.
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Although the tractor-tanker had been equipped with
reflective triangles and other warning devices, including orange
cones, Rapp did not set out any of these devices because he was
scared and wanted to get away from the vehicle as soon as
possible. A representative of Rapp's employer testified,
however, that the Federal Motor Carrier Safety Regulations
mandate the use of warning devices after an accident and that
Rapp was not "supposed to react" as he did.
III
Ordinarily, negligence and proximate cause are issues to be
decided by a fact finder. Therefore, a jury should weigh the
evidence, determine the credibility of the witnesses, and
ultimately decide these issues when reasonable minds could
differ about them. Only when reasonable minds could not differ
are issues of negligence and proximate cause questions of law to
be decided by a court. Phillips v. Southeast 4-H Educational
Ctr., 257 Va. 209, 213, 510 S.E.2d 458, 460 (1999); Poliquin v.
Daniels, 254 Va. 51, 57, 486 S.E.2d 530, 534 (1997).
In ruling on a motion to strike a plaintiff's evidence, a
trial court must view the evidence and all reasonable inferences
drawn therefrom in the light most favorable to the plaintiff and
overrule the motion when there is any doubt about the question.
Artrip v. E.E. Berry Equipment Co., 240 Va. 354, 357, 397 S.E.2d
821, 823 (1990). Indeed, we have emphasized that striking a
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plaintiff's case-in-chief "is a drastic measure with high costs
to the administration of justice and should be avoided unless
there is no doubt that the plaintiff has not proven any cause of
action against the defendant." West v. Critzer, 238 Va. 356,
359, 383 S.E.2d 726, 728 (1989).
With these legal principles in mind, we determine whether
the Plaintiff's evidence established a prima facie case that
Rapp was guilty of negligence that proximately caused the
Plaintiff's injuries. In so doing, we first consider the issue
of speed. In that regard, we have said that whether speed is
excessive or reasonable must, in large measure, be governed by
the existing conditions and not necessarily by the posted speed
limit. Goodwin and Reed v. Gilman, 208 Va. 422, 431, 157 S.E.2d
912, 919 (1967).
In the present case, the evidence shows that Rapp was
driving a large tanker truck loaded with 8,000 gallons of
flammable gasoline on a dark, rainy, and foggy night. He knew
that he was driving in an area where rocks were known to fall
onto the highway. As Rapp made the turn onto Route 220
Business, an approaching vehicle signaled a warning.
Notwithstanding these circumstances and conditions, however,
Rapp increased his vehicle's speed to the maximum allowable
speed and continued at that speed until his vehicle struck a
large rock in the middle of his lane of travel. Based upon this
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evidence, we conclude that reasonable minds could differ about
whether Rapp was negligent in operating his vehicle at an
excessive speed under the existing conditions and whether any
such negligence was a proximate cause of the accident.
We next consider the issue of failure to keep a proper
lookout. By his own admission, Rapp never saw the large rock
directly ahead of him even though he had an unobstructed view of
300 to 400 yards, his vehicle was equipped with headlights and
fog lights, and he knew that rocks were likely to fall onto the
highway in the area. Based upon this evidence, we conclude that
reasonable minds could differ about whether Rapp was negligent
in failing to keep a proper lookout and whether any such
negligence was a proximate cause of the accident.
For these reasons, we hold that the Plaintiff's evidence
established a prima facie case of negligence and proximate cause
and that the trial court erred in striking the evidence.
IV
The Plaintiff also contends that the trial court erred in
ruling as a matter of law that Rapp did not violate § 392.14 of
the Federal Motor Carrier Safety Regulations, 49 C.F.R. §
392.14 (1995), which has been adopted as Virginia law. See 19
VAC 30-20-40 and 30-20-80. The federal regulation provides, in
pertinent part, as follows:
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Extreme caution in the operation of a commercial
motor vehicle shall be exercised when hazardous
conditions, such as those caused by . . . fog, mist,
[or] rain . . . , adversely affect visibility or
traction. Speed shall be reduced when such conditions
exist. If conditions become sufficiently dangerous,
the operation of the . . . vehicle shall be
discontinued and shall not be resumed until the . . .
vehicle can be safely operated.
The Defendants assert that the regulation "does not equate
rain and fog with 'hazardous conditions' " and that "the
evidence fails to show whether the rain and fog amounted to
'hazardous conditions.' " While we believe that the regulation,
in plain and unequivocal language, states that conditions caused
by fog, mist, or rain become hazardous when they "adversely
affect visibility or traction," the regulation, in the interest
of public safety, merely imposes a duty on the operator of a
commercial motor vehicle to exercise "[e]xtreme caution" under
such conditions.
Based upon the evidence in the present case, we conclude
that reasonable minds could differ about whether Rapp violated
this duty and whether any such negligence was a proximate cause
of the accident. Therefore, the trial court erred in ruling as
a matter of law.
On the other hand, we agree with the Defendants that
violation of the regulation does not constitute negligence per
se. The regulation, as we previously noted, simply creates an
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expanded duty of care for the operation of commercial motor
vehicles under the conditions stated therein.
V
The Plaintiff further contends that the trial court erred
in ruling as a matter of law that Rapp was not negligent per se
in failing to comply with the requirements of Code § 46.2-111
and 49 C.F.R. § 392.22 (1995). Code § 46.2-111 provides, in
pertinent part, that, whenever a vehicle used for the
transportation of flammable liquids in bulk is disabled and
stops on a highway, the operator shall place or cause to be
placed certain warning devices, among other places, "in the
center of the lane of traffic occupied by the disabled vehicle
and not less than 100 feet therefrom in the direction of traffic
approaching in that lane." The federal regulation contains a
similar requirement for the placement of warning devices.
In the present case, although Rapp's vehicle was equipped
with the required warning devices, Rapp failed to place any of
the devices on the highway. Instead, he fled from the accident
scene because he was scared and wanted to get away from his
vehicle.
The record, however, does not show how much time had
elapsed after Rapp's vehicle had become disabled and the
Plaintiff arrived upon the scene. All it shows is that Rapp had
had time to exit the tractor and to proceed on foot some
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distance along the highway. Although we have said that "[t]he
violation of a statute of this character constitutes negligence
per se," Savage Truck Line v. Traylor, 193 Va. 579, 585, 69
S.E.2d 478, 482 (1952) (decided under predecessor statute), our
finding of a statutory violation was based upon the length of
time, prior to an accident, that a truck had been standing on a
highway without the deployment of warning devices. We
determined that the statute required action "as promptly as may
be reasonably practicable." Id.
Consequently, we hold, in the present case, that the trial
court erred in removing this issue from the jury. The jury
should have been allowed to determine whether Rapp violated the
statute and federal regulation and whether any such violation
was a proximate cause of the accident.
VI
In addition, the Plaintiff sought to present evidence that
Rapp's corrected vision was 20/40, the minimum required by the
federal regulations. See 49 C.F.R. § 391.41 (1995). The
Plaintiff asserts that this vision evidence was relevant in
determining whether Rapp's conduct was reasonable under the
existing conditions. We do not agree. Rapp's corrected vision
met the federal requirement, and his visual acuity was not
sufficiently deficient to have had an effect upon his conduct.
Therefore, the trial court properly excluded the evidence.
9
The Plaintiff also sought to show, pursuant to Code § 8.01-
397.1, that Rapp was in the habit of failing to wear his
glasses. Code § 8.01-397.1(B) defines habit as "a person's
regular response to repeated specific situations." In order for
evidence of a person's habit to be admissible to prove that
person's conduct on a particular occasion, examples of habit
must be sufficiently numerous and regular. Moreover, because of
the danger of abuse in such evidence, habit is "never to be
lightly established." Wilson v. Volkswagen of America, Inc.,
561 F.2d 494, 511 (4th Cir. 1977) (applying Fed. R. Evid. 406).
In the present case, we do not believe that the Plaintiff's
proffer pertaining to Rapp's habit of going without eyeglasses
met the above-stated requirement. Therefore, the trial court
properly excluded the evidence suggesting that Rapp may have
been driving without his glasses.
VII
Finally, the Plaintiff contends that the trial court erred
in holding as a matter of law that there was no evidence that
Rapp was guilty of negligence by obstructing the highway. The
Plaintiff relies, in part, upon Code § 46.2-888. That statute
provides that "[n]o person shall stop a vehicle in such manner
as to impede or render dangerous the use of the highway by
others, except in the case of an emergency, an accident, or a
mechanical breakdown."
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We do not think that Code § 46.2-888 applies in the present
case. Indeed, the statute, by its express terms, does not apply
"in case of an emergency, an accident, or a mechanical
breakdown."
The Plaintiff also relies upon Code § 18.2-324. That
statute provides, in pertinent part, as follows:
No person shall . . . deposit or cause to be
deposited upon any highway . . . any . . . substance
likely to injure any person . . . or damage any
vehicle upon such highway, nor shall any person . . .
deposit or cause to be deposited upon any highway any
. . . substances so as to create a hazard to the
traveling public.
The Plaintiff asserts that Rapp violated Code § 18.2-324 by
causing gasoline to have been deposited upon the highway. She
further asserts that Rapp is presumed to have been negligent for
violating the statute and that, therefore, the Defendants had
the burden of overcoming the presumption by producing evidence
that reasonably explains that the violation resulted from a
cause other than negligence.
In response, the Defendants point out that Code § 18.2-324
is a criminal statute, and they contend that, to be guilty of
violating the statute, a person must intentionally deposit the
hazardous substance on the highway. The Defendants assert that,
because Rapp never intended to cause any deposit of hazardous
substances, he did not violate the statute.
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We agree with the Defendants. Although the violation of a
criminal statute may provide the basis for a wrongdoer's
liability in a civil action, see, e.g., Code § 8.01-221, in the
present case, the statute's violation requires proof of an
intentional act and cannot provide the basis for a presumption
of negligence.
Similarly, the Plaintiff contends that "the trial court
erred in holding that there was no presumption of negligence
created by the fact that Rapp's truck was on the wrong side of
the road." The Plaintiff relies upon Code § 46.2-802, which
provides, in pertinent part, that "the driver of a vehicle shall
drive on the right half of the highway." The Plaintiff argues
that the undisputed evidence shows that Rapp drove his vehicle
out of the northbound lane of travel and proceeded into the
southbound lane before crashing into the wall on the western
shoulder of the highway.
We do not think that Code § 46.2-802 applies in the present
case. Code § 46.2-802 requires an operator to "drive" on the
right half of the highway, and the evidence conclusively shows
that Rapp was driving in the northbound lane when the accident
occurred. The presence of the truck on the western shoulder of
the highway did not result from Rapp's failure to drive on the
right half of the highway.
VIII
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In sum, we hold that the trial court erred in striking the
Plaintiff's evidence relating to whether Rapp operated his
vehicle at an excessive speed under the circumstances or failed
to keep a proper lookout and whether any such negligence was a
proximate cause of the accident. We also hold that the trial
court erred in ruling, as matters of law, that Rapp did not
violate 49 C.F.R. § 392.14, Code § 46.2-111, and 49 C.F.R.
§ 392.22.
We further hold that the trial court did not err in its
rulings regarding Code §§ 46.2-888, 18.2-324, and 46.2-802.
The trial court also did not err in excluding evidence of Rapp's
alleged impaired vision and failure to wear eyeglasses.
Accordingly, the trial court's judgment will be affirmed in
part and reversed in part, and the case will be remanded to the
trial court for a new trial.
Affirmed in part,
reversed in part,
and remanded.
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