Recent Cases

Favorable Outcome for Defendant in Admitted Liability Case

October 6, 2011
Radford Circuit Court

David Carson defended a case in the Radford Circuit Court in which the Defendant admitted her liability and the defense presented no evidence. The Plaintiff introduced medical expenses in excess of $26,000 and relied on two medical experts to establish that she had chronic pain, permanent injuries, and needed lifetime treatment for her neck, shoulder, back, and hip complaints that arose out of the rear-end automobile accident.

Carson argued that the accident itself was not significant – as documented by the post-accident photographs of the vehicles. He also argued that the Plaintiff’s pre-accident neck and back complaints could also explain the Plaintiff’s ongoing complaints. He finally argued that the Plaintiff’s excessive physical therapy and massage therapy visits, which the Plaintiff agreed provided only short-term benefit, warranted a mitigation instruction. The trial judge agreed and gave a mitigation of damages instruction.

In his closing argument, Carson conceded that medical expenses of approximately $3,300 were reasonable and related to the accident. After approximately one hour, the jury returned with a verdict of $3,500.

Punitive Damages Claim Dismissed

August 17, 2011 Roanoke County Circuit Court & August 23, 2011 Roanoke City Circuit Court

David Carson was successful in having demurrers sustained in two separate cases in which the Plaintiffs had asked for $250,000.00 and $350,000.00 in punitive damages, respectively.  Each case involved an aggravated liability situation, but no alcohol was involved, and the Plaintiffs were relying on Virginia common law in support of their claims for punitive damages.  Relying on established law that requires specific allegations of conduct that would support a claim that a defendant’s negligence is so willful and wanton so as to evince a conscious disregard of the rights of others, David successfully convinced the Court that the requisite factual allegations had not been asserted and that the punitive damage claims were not supported by the law or the evidence.  Judges in both the Roanoke County Circuit Court and the Roanoke City Circuit Court agreed, stating that at best, the Plaintiff in each case had alleged gross negligence, which was insufficient as a matter of law to sustain a claim for common law punitive damages.  Accordingly, the Court sustained demurrers in both cases, leaving claims solely for compensatory damages against each of the firm’s clients.

Business Conspiracy Claim Dismissed

May 2, 2011
Roanoke County Circuit Court

Lori Bentley was successful in having a demurrer sustained and the firm’s client dismissed with prejudice from a multi-count lawsuit in which a claim for business conspiracy was asserted.  The plaintiff alleged that the defendant conspired with others to prevent her from recovering a parcel of real property that she allegedly held for investment purposes and that, pursuant to the alleged conspiracy, the defendant refused to release a deed of trust on the property.  Relying on the Virginia business conspiracy statutes and cases construing those statutes, Lori convinced the Court that the plaintiff did not have an established business that was injured as a result of the alleged conspiracy, and the Court dismissed, with prejudice, the business conspiracy claims which were the only counts asserted against the firm’s client.

Defense Verdict In Bicycle/Automobile Collision with Significant Injuries

May 2, 2011
Pulaski County Circuit Court

David Carson successfully defended a 15-year-old Pulaski County resident who was operating a motor vehicle that was involved in a head-on collision with the Plaintiff who was riding a bicycle in the opposite direction.

As a result of the accident, the Plaintiff sustained a tibial plateau fracture that required surgical treatment and internal fixation with subsequent hardware removal. The Plaintiff presented special damages of approximately $92,000.00.

The Plaintiff claimed that he was operating a bicycle within his lane of travel on an unmarked rural road when the Defendant, who obtained her learner’s permit two months before the accident, crossed the centerline and struck the Plaintiff. The Plaintiff had three eyewitnesses who confirmed his story.

For the defense, Carson established the criminal history of the Plaintiff as well as the criminal history of his alleged eyewitnesses. Carson also successfully moved the Court for a jury view of the accident scene, which helped to establish that the Plaintiff’s alleged eyewitnesses could not have seen what they claimed to have witnessed.

Both liability and damages issues were submitted to the jury. Based primarily on the impeachment of the Plaintiff in conjunction with the jury view, the jury took 13 minutes to return a Defendant’s verdict.

Defense Verdict In Head-On Collision with Significant Injuries

March 21-23, 2011
Campbell County Circuit Court

Four attorneys spent 3 days presenting evidence in a center-line case in the Campbell County Circuit Court. As a consequence of the impact, which was a 90 mph head-on collision, both vehicles were totaled and both drivers sustained significant injuries.

The Plaintiff (and counter-claim Defendant) was a Liberty University student on her way home from Church. The Defendant (and counter-claim Plaintiff) was on her way home from a friend’s house where she had consumed a disputed amount of alcohol.

The Plaintiff was adamant that at all times, she was wholly within her lane of travel when the Defendant crossed over the center line and struck her. The Plaintiff’s case was severely compromised by post-accident photographs showing what appeared to be objective evidence that the impact had occurred in the Defendant’s lane of travel. The Plaintiff developed shoulder and back problems, which culminated in surgeries and placement of a “pain pump” in the Plaintiff’s spinal column. The Plaintiff claimed medical expenses of approximately $300,000.

The Defendant was adamant that she was wholly within her lane of travel at all time preceding the accident. The Defendant’s case was compromised by a post-accident hospital laboratory test reflecting a BAC of .16. The Defendant suffered a fractured pelvis, fractured arm, fractured leg, and lacerations involving her intestine and bladder. She claimed medical expenses of approximately $500,000.

The attorneys presented much evidence on the Defendant’s BAC level. The Defendant argued that because she had lacerated her intestine in the accident, “unprocessed alcohol” had entered her peritoneal cavity and artificially inflated her BAC.

David Carson defended the Plaintiff on the counter-claim filed against her. On cross examination of the Defendant’s toxicologist, he secured a concession that even if the Defendant had consumed the minimal amount of alcohol she agreed she had consumed in the hours before the accident, the Defendant’s BAC at the time of the accident was between .06 and .09.

The jury took 2 hours and 15 minutes to return with a verdict in favor of both Defendants.

Verdict for the Defense in FELA Case

February 15-17, 2011
Roanoke City Circuit Court

Grimes Creasy and Lori Bentley obtained a defendant’s verdict for Norfolk Southern in an FELA action.  The plaintiff claimed that she slipped on accumulated ice and snow and fell down the steps leading out of her office building while going on her lunch break.  Initially, the plaintiff reported that her knee gave out, causing her to fall.  However, she later said that she slipped on snow and ice.  Photographs taken shortly after her fall did not reveal any snow or ice on the steps.  Plaintiff’s counsel attempted to convince the jury that Norfolk Southern’s failure to preserve video surveillance tape that purportedly would have shown the plaintiff’s fall was an intentional attempt to prevent her from proving that there was ice and snow on the steps.  After deliberating for approximately two hours, the jury returned a verdict for Norfolk Southern.

Judge Grants Motion to Strike

January 11, 2011
Roanoke City Circuit Court

The plaintiff, a 12-year-old boy, fractured an arm jumping on a trampoline which was located in the defendant’s backyard. The defendant’s grandson was present at the time of the accident. The evidence was in dispute with regard to whether or not the defendant was present.

The suit, in the amount of $100,000.00, alleged that the defendant was liable for negligently maintaining the trampoline and negligently supervising activities on her property.

On behalf of the defendant, Joe Matthews filed a demurrer and an answer. In support of the demurrer, Joe Matthews argued that by statute, the plaintiff had to prove the defendant was guilty of gross negligence because jumping on a trampoline is a “recreational activity.” The Court sustained the demurrer, finding that an allegation of simple negligence arising out of the use of a trampoline, when it was not for hire, was insufficient as a matter of law. The Court allowed the plaintiff to amend, and in his amended complaint, the plaintiff alleged that the defendant was guilty of gross negligence.

At trial, the plaintiff presented evidence that the defendant had a defective trampoline and did not adequately supervise the plaintiff’s activities. At the conclusion of the plaintiff’s case, the defendant moved to strike the plaintiff’s evidence on the grounds that there was no evidence of gross negligence. After considering the evidence and reviewing the case law, the Court granted the motion and entered summary judgment for the defendant. Counsel for the plaintiff has advised that there will not be an appeal.

Plaintiff Pedestrian Loses in Personal Injury Action

October 19, 2010
Bath County Circuit Court

The plaintiff claimed that he sustained injuries to his low back, left hip, left shoulder and left elbow as a result of a motor vehicle accident that occurred on August 28, 2007, at 11:00 p.m. along Route 220 South in Bath County, Virginia.  In the vicinity of the accident, Route 220 is an unlit, two-lane highway divided by a double yellow line.  The speed limit is 25 miles per hour.  A sidewalk parallels the northbound lane.

The plaintiff, a cook at the Homestead Resort at the time of the accident, testified he left work that evening, and walked south on the sidewalk toward the auxiliary parking lot used by Homestead employees where he had parked his car.  The plaintiff was dressed in a black long-sleeved shirt, black pants and black shoes.  He walked on the sidewalk until he crossed Route 220, and, according to his testimony, he then walked south along the southbound lane of Route 220, with his back to southbound traffic.  The plaintiff testified that he was not walking within the southbound lane of travel; instead, he was walking with his right foot in an eight inch deep drainage ditch that parallels the southbound lane.  The ditch was littered with sand and gravel.  

As he walked south, he heard a vehicle approaching from behind him, traveling south.  It did not sound as though the vehicle was speeding.  He did not turn to look at the vehicle.  As the vehicle got closer, the plaintiff heard the sound of a tire in gravel.  Again, the plaintiff did not turn to look to see what was happening; he merely took a step to his right.  Two seconds later, he was struck on his left hip and elbow and knocked to the ground.  When he looked up, he saw a car headed south, pulling back onto the paved surface of the roadway, with sparks coming from underneath it.

The defendant did not testify.  However, in that case-in-chief, the investigating trooper, who had received a call about a pedestrian hit and run accident, testified at approximately 11:15 p.m., he located the defendant in the parking lot of a local restaurant.  She was standing outside of her vehicle, looking at a starburst on the windshield on the passenger side.  The trooper testified that the defendant told him that she was driving south on Route 220 when suddenly her windshield cracked.  She did not know what had caused it to crack, but she assumed that a branch had fallen and struck it.  She did not see anyone or any vehicles in  the area where the crack occurred, and she said that her vehicle never left the southbound lane of travel and entered the drainage ditch.  She told the trooper that she pulled into the first lit area she came to, so that she could inspect the damage and try to determine what had happened.

The trooper met with the plaintiff at the location where the plaintiff said he had been struck.  The trooper testified that he did not see any physical signs on the road or in the drainage ditch to suggest that a vehicle had left the southbound lane of travel and entered the ditch.

The plaintiff submitted approximately $8,000 in medical bills.

During Brian Brydges’ closing argument, he argued that the defendant was not negligent; that there was no physical evidence at the accident scene to corroborate the plaintiff's testimony that the defendant’s vehicle had left the southbound lane; and that it was reasonable that the defendant did not see the plaintiff under the circumstances because it was dark, the road was not lit, and the plaintiff was dressed in black.  Brian argued, in the alternative, that the plaintiff was guilty of contributory negligence because he failed to use the sidewalk, which he was legally obligated to do; he failed to maintain a proper lookout for approaching vehicles as he walked south along route 220; and he failed to take reasonable steps to remove himself from a place of peril.

Defendant’s verdict in pedestrian case

October 14, 2010
Roanoke County Circuit Court

David Carson defended a Roanoke County resident whose vehicle allegedly struck an out-of-town businessman who was walking along Route 419.  No police were called, and there were no witnesses to the accident.  The parties’ versions of the accident were irreconcilable.  The plaintiff claimed back injuries and a knee injury, which required surgery.  The plaintiff introduced medical expenses of approximately $24,000.00 and a wage loss of approximately $41,000.00. Contrary to the plaintiff’s sworn deposition testimony that he had a negative pre-accident medical history, evidence secured during the discovery process established that the plaintiff in fact had a significant prior medical history, which the plaintiff conceded during his cross-examination at trial.  Before trial, the settlement demand was $80,000.00, and the settlement offer was $8,000.00.  Both liability and damages issues were submitted to the jury.  Based primarily on the cross-examination of the plaintiff, the jury took only 14 minutes to return a defendant’s verdict.

McGarry v. Ferrum College

June 18, 2010
Virginia Supreme Court (John D. Eure)

This was an action filed by a college student injured in a fight during a pick-up basketball game at the college athletic facilities. The plaintiff claimed that the College had, and had breached, a duty to prevent the repetition of allegedly assaultive behaviors on campus, and that the College had actual knowledge of prior assaultive behaviors by the alleged assailant. These claims were carefully tailored to track those made in a recent Virginia decision imposing expanded liability on innkeepers, and the plaintiff asserted that this same expanded liability should apply to colleges. My partner, Jonnie Speight, obtained a dismissal as a matter of law. Recent Virginia appellate decisions, however, have repeatedly cautioned trial judges not to dismiss cases or take the ultimate decision away from a jury. In this context, in the first round of briefing in the Supreme Court of Virginia, we convinced the Court that this particular case nevertheless was properly dismissed. The plaintiff’s petition for appeal was refused on March 30, 2010, and his petition for rehearing was refused on June 18, 2010.

Favorable Outcome for Defendant in Personal Injury Action

March 5, 2010
Salem City Circuit Court

Lori Bentley successfully represented a driver who struck a pedestrian in a crosswalk in the City of Salem after admitting liability for the accident, but not for the damages alleged. The plaintiff claimed an injury to his right shoulder after being struck by the defendant. There was conflicting evidence as to how the injury may have occurred as well as conflicting testimony by the medical experts as to the cause of the plaintiff’s symptoms.

The plaintiff claimed approximately $40,000 in medical bills and asked the jury to award him $115,000 during closing argument. After deliberating for approximately 30 minutes, the jury awarded the plaintiff $10,000.

Favorable Verdict in Admitted Liability Case

February 25, 2010
Roanoke City Circuit Court

The defendant admitted liability for causing an accident with a vehicle in which the plaintiff was a passenger. The plaintiff claimed injuries to his neck, right shoulder, lower back, and right ankle and was out of work for four months following the accident. He incurred $2,896.10 in medical bills that were causally related to the accident. The plaintiff further claimed approximately $11,000 in lost wages, which the trial judge restricted to $8,000 prior to submission of the case to the jury. On behalf of the defendant, Lori Bentley was able to present evidence that the plaintiff, a self-employed contractor, had never claimed to have earned that much income on his tax returns for any of the five years prior to the accident. After deliberating for approximately 30 minutes, the jury returned a verdict in favor of the plaintiff for $6,896.10, which was just $4,000 over his medical specials.

Weaver Enterprises, Inc., v. Floyd

January 7, 2010
Virginia Supreme Court (John D. Eure)

This was an action by a large and influential rural landowner who claimed ownership, by adverse possession, of an acre of a neighbor’s land. My partner, Lori Bentley, defeated this claim at a bench trial. In the first round of briefing in the Supreme Court of Virginia, we convinced the Court that the trial court had ruled correctly. The plaintiff’s petition for appeal was refused on January 7, 2010.

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