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EDVA: Court won’t reconsider contributory negligence

The defendants were not entitled to reconsideration of the court’s decision to grant summary judgment to the plaintiff on the issue of his contributory negligence, as their proposed grounds amounted to mere disagreement with the court’s earlier conclusions.


In this products liability action, Robert Benedict sues Hankook Tire Company Limited and Hankook Tire America Corporation for the production and distribution of an allegedly defective tire. The action involves a single-vehicle accident that occurred when the front right tire of a cement truck driven by Benedict suffered a tread separation. The truck thereafter collided with an embankment on the side of the road, leaving Benedict seriously injured.

At the time of the accident, the 2014 Virginia Commercial Driver’s License Manual published by the Virginia Department of Motor Vehicles was in effect. It apprises commercial drivers of “important information” that they must know to operate their vehicles in a “safe and professional manner.” It advises drivers facing a tire failure as follows:

“Hold the steering wheel firmly. If a front tire fails, it can twist the steering wheel out of your hand. Keep a firm grip on the steering wheel with both hands at all times.

“Stay off the brakes. Braking when a tire has failed could cause you to lose control. Unless you are about to run into something, stay off the brake until the vehicle has slowed down. Then, brake gently and pull off the road.

“Check the tires. Even if the vehicle seems to be handling normally. Many times you won’t know that a dual tire is flat unless you look at it.”

Hankook seeks reconsideration of the court’ s previous order granting summary judgment to Benedict as to Hankook’s contributory negligence defense. In its opinion on the issue, the court held that Defendants were required by Virginia’ s “expert testimony rule” to establish the standard of care in this case by expert testimony, that they had failed to do so, and that Defendants could not avail themselves of any exception to the rule.

Contributory negligence

Absent a significant change in the law or the facts since the original submission to the court, granting a motion for reconsideration is only appropriate where, for example, the court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the court by the parties, or has made an error not of reasoning but of apprehension.

Hankook first argues that the CDL Manual satisfies the exception to the expert testimony rule that applies when “standards of conduct have ripened into rules of law.” But this argument was addressed by the original opinion wherein the court explicitly held that the “rules of law” exception is inapposite in this case. And the very regulations that Hankook cites to support its claim that this exception applies were cited by the court for the opposite proposition. Hankook is therefore moving for reconsideration based on mere disagreement with the court’s ruling, asking it to rethink what it has already thought through. These are impermissible grounds for reconsideration.

Moreover, there is no reason that Hankook could not have presented this argument initially. Reconsideration is not an occasion to present a better and more compelling argument that the party could have presented in the original briefs.

Hankook likewise claims that the CDL Manual is a legislative fact, that it defines the standard of care here in light of its interplay with federal regulations, and that it should be judicially noticed and considered when reconsidering Benedict’s motion for summary judgment. This contention, however, is simply a repackaged version of the argument that the CDL Manual establishes the governing standard of care on its own, which the court has rejected. And again, if Hankook wanted the court to judicially notice the CDL Manual, it should have requested that to have been done when opposing Benedict’s motion.

Hankook also argues that the CDL Manual falls into the exception to the expert testimony rule that applies where some distinct aspect of a normally complex matter clearly lies within the range of the jury’s common knowledge and experience. It claims that the CDL Manual’s instructions for responding to a tire failure “are not complex, technical or beyond the understanding of the average juror.”

These arguments, too, were addressed by the court’s original opinion. The court expressly concluded that this case is sufficiently complex to trigger the expert testimony rule as to the standard of care question and that the exception now relied upon by Hankook is inapplicable. Again, this argument amounts to a mere disagreement with the court’s decision.

Furthermore, before pursuing reconsideration, Hankook actually agreed with Benedict that the standard-of-care question here is complex enough to fall within the expert testimony rule. Had Hankook wished to contest this issue, they certainly could have done that in their opposition brief instead of conceding the point. The court cannot now sanction Hankook’s about-face to allow a novel legal argument that it had the ability to address in the first instance. A party who fails to present its strongest case in the first instance generally has no right to raise new theories or arguments in a motion to reconsider.

Hankook additionally suggests that Benedict’s testimony, especially in conjunction with the CDL Manual and an expert’s testimony, can establish all elements of negligence in this case, including the standard of care. As elsewhere, Hankook is improperly endeavoring to wriggle out of the court’s earlier holding based on mere disagreement. There is no reason that Hankook needed to wait until now to raise or bolster this theory.

Hankook further contends that Benedict previously conceded that the CDL Manual establishes the applicable standard of care. While Defendants do not devote much space to this point, the court calls attention to it because it profoundly mischaracterizes the record and is actually quite misleading. Hankook states in its brief: “Even if these manuals were not legislative facts, Plaintiff has already represented to the Court and taken the position that the undisputed standard of care governing how Plaintiff should respond to a tire failure is in the VA CDL Manual…. Plaintiff confirmed that these instructions are the standard of care during the hearing on his Motion: “[i]n this case, the standard of care in responding to a tire disablement was the method depicted in the CDL manual.”

But Benedict’s brief did not represent that the undisputed standard of care is the CDL Manual. Rather, paragraph 32 observed that: “The Virginia CDL Manual instructs commercial drivers as to the ‘important information that [they] must know to operate [their] vehicle in a safe and professional manner.’” Benedict proceeded to argue that Hankook had presented no qualified expert testimony defining the standard of care, and at argument, Benedict’s counsel simply explained what an expert would need to assert to establish the CDL Manual as the standard of care. The cited statement was made in the following context:

THE COURT: What is the standard of care?

COUNSEL: Well, for Mr. Benedict, we haven’t articulated a standard of care, because that’s an not element that we have a burden of proving in this case.

THE COURT: I didn’t ask you that. Let me try it another way. What would they have to do to articulate a standard of care that they haven’ t done?

COUNSEL: So they would have to have a qualified expert establish the standard of care and then define …

THE COURT: What would he have to say?

COUNSEL: In this case, the standard of care in responding to the tire disablement was the method depicted in the CDL manual, or the standard of care was to counter-steer 60 degrees, any number of ways, but setting the standard by reference to an approach to the situation and then saying how he failed to achieve that, and that’s just not something they have.

In short, Hankook’s argument on this point is specious and takes matters in the record so out of context as to be misleading. This does not establish grounds for reconsideration.

Motion denied.

Benedict v. Hankook Tire Co., Case No. 3:17cv109, Apr. 5, 2018. EDVA at Richmond (Payne). VLW No. 018-3-136, 19 pp.