No Negligence Per Se Under Va. Statutes

A plaintiff who suffered injuries in a vehicle collision with a truck and trailer driven by an agent of defendant lawn care service cannot sue defendant for negligence per se under Virginia statutes plaintiff cites that cover towed trailers and inspection penalties; the Newport News U.S. District Court dismisses the suit with leave to amend.

This personal injury suit arises out of an accident that occurred on Interstate 64 in Newport News. Defendant Sam Lloyd was operating a truck and towed trailer, as an agent of defendants Hullihen’s Lawn Care Service and/or Hullihen’s Lawn Care Inc. On May 25, 2012, while driving the truck and trailer, Lloyd crashed into a vehicle driven by plaintiff Randolph Darnell, causing Darnell injury. At the time of the accident, the towed truck allegedly had an expired inspection sticker and was suffering from mechanical problems. Plaintiff heard Lloyd say after the collision that “the d*** trailer brakes failed again.” Plaintiff also overheard Lloyd state he had previously been in an accident involving the same vehicle and trailer.

Plaintiff sued in state court and defendants removed the suit to federal court.

Defendants move to dismiss parts of plaintiffs’ negligence per se claims. Counts 3 and 4 allege violations of Va. Code §§ 46.2-1003, 1070, 1157, 1158, 1158.02 and/or 1171. Defendants move to dismiss all but the claim under Va. Code § 46.2-1003.

Virginia Code § 46.2-1070 requires certain trailers to have brakes controlled by the driver of the towing vehicle. Defendants argued that the statute does not apply to a “vehicle not required to obtain a registration certificate,” and because it was registered in Pennsylvania, it did not require a registration certificate. Plaintiff did not make any specific arguments in its memorandum addressing this statute, and focused only on the registration and inspection issues before the court.

Plaintiff was unable to cite, and the court did not find, any case applying this statute to establish a negligence per se claim against any defendant. This is because, in the court’s view, the negligence would occur, based on the facts as pled in the complaint, from the knowledge that the brakes were defective, as evidenced in paragraphs 15 and 16 of the complaint. Plaintiff failed to plead any facts allowing the court to determine the registration status of the vehicle, such that this statute would apply.

Plaintiff also could not cite to a single case where a Virginia court applied Code §§ 46.2-1157 and 1158 to a negligence per se claim. This is because the failure to inspect would not be the proximate cause of the injury; it would be the knowledge that the brakes were defective. Plaintiff did not plead the registration status of the vehicle.

As to Code §§ 46.2-1158.01 and 46.1-1171, these statutes only provide the penalties for a violation of the Virginia inspection laws. The complaint contains no facts that would allow the court to plausibly infer defendants have violated the penalty statutes, by, for example, failing to pay any penalties assessed against them.

Motion to dismiss granted, with leave to amend.

Darnell v. Lloyd (Morgan) No. 4:14cv94, Oct. 23, 2014; USDC at Newport News, Va. VLW 014-3-569, 6 pp.