Legal Notices
Supreme Court of Virginia Again Reverses Circuit Court for Granting Motion to Strike.
In Rascher v. Friend, Record No. 090193 (2/25/10), the Supreme Court of Virginia took "the opportunity to again stress" that issues of negligence and proximate cause are ordinarily questions for the jury, not the court. The Court instructed circuit judges to deny “a motion to strike the evidence in every case in which there is any doubt that the party with the burden to do so had failed to prove negligence, contributory negligence, and proximate cause, as the case may be." This is a familiar theme with the current Supreme Court. Thus, it will be a very rare case in which a circuit judge will feel comfortable granting a motion to strike.
The defendant in the case was clearly negligent - she had an unobstructed view in clear weather with optimal visibility, yet turned left directly in front of the plaintiff, a bicyclist traveling straight on a two-lane road with a 25 m.p.h. speed limit. The plaintiff testified that he saw the defendant's vehicle stopped about 50 feet away in the opposite lane, waiting to make a left turn; "stared" at the defendant and was confident the defendant could see him; glanced at his bicycle's speedometer for " a half second to a second;" and looked up to see that the defendant had turned left and was three to five feet in front of him in the plaintiff's lane. At the close of the plaintiff's evidence, the trial court granted the defendant’s motion to strike on the ground that the plaintiff was guilty of contributory negligence as a matter of law.
The Supreme Court reversed and sent the case back for trial, ruling that both contributory negligence and proximate cause as to the plaintiff’s negligence were issues for the jury. The opinion cites the statutory speed table, Code § 46.2-880, for the proposition that, given the plaintiff's speed of 19 m.p.h. (29.3 feet per second), the jury could reasonably have found that the plaintiff would have had no opportunity to avoid the accident even if he had not looked down at his speedometer. The opinion concludes with the familiar recitation that, following a full trial and a jury verdict, the trial court may set the verdict aside if that appears appropriate, and the Supreme Court can then review the case with a full record. In recent years, however, the Court has rarely affirmed a circuit court's ruling that sets aside a verdict.
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