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No contributory negligence in p.i. case

Deborah Elkins//April 7, 2014

No contributory negligence in p.i. case

Deborah Elkins//April 7, 2014//

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A motorcyclist who hit an SUV turning across his lane of travel gets another chance to win damages, after a Virginia Supreme Court majority took issue with a jury instruction on contributory negligence.

It takes just a little more than a “scintilla” of proof for a p.i. defendant to persuade a judge to instruct a jury that the plaintiff was at least partly at fault for a traffic accident. Defined as a “tiny trace or spark,” a “scintilla” may not be the most precise measurement a court must make.

Here’s what the defendant marshaled in Turner v. Perryman, decided April 4 in an unpublished order.

According to the trial evidence, Charles E. Perryman Jr. was traveling west bound in an SUV on Ashland Road in Hanover County, a two-lane state road, approaching an intersection with Greenwood Road. Scott Turner was riding a motorcycle eastbound on Ashland Road. The weather was clear and sunny.

Intending to turn left on Greenwood Road, Perryman put on his left turn signal and stopped or “slowed to a crawl.” Perryman said that as he began to turn, he did not see Turner’s motorcycle approaching the intersection. Additional evidence showed that a westbound driver on Ashland Road at this intersection would have a limited view of oncoming traffic because the intersection is at the crest of a hill.

Turner was traveling at 40 miles per hour and was about 50 yards away when he saw Perryman’s SUV. Turner was about 30 yards away when Perryman began to turn across Turner’s lane of travel. Turner testified he thought he could not avoid a collision by swerving around the SUV, so he applied his brake to at least lessen the impact. He struck the right rear side of the SUV.

Perryman had to produce more than a “scintilla” of proof and he didn’t cross that line, according to the Supreme Court.

At the point Turner saw Perryman turning across his lane, the only possible options were to attempt to avoid a collision by braking the motorcycle or attempting to swerve out of the path of the turning SUV, the high court said.

“Perryman failed to establish that Turner’s decision to apply the brakes of his motorcycle, rather than to swerve, was a proximate cause of the collision, one of the essential elements of a contributory negligence defense,” the court said.

Justices Elizabeth McClanahan and Cleo Powell dissented, saying the majority was not viewing the evidence in the light most favorable to Perryman. Perryman expressly denied turning left across Turner’s lane, and the jury should have considered the reasonableness of Turner’s speed as he approached a hard-to-see intersection, the dissent reasoned.

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