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Jury gets negligence and causation issues

In these consolidated cases involving multiple vehicle collisions in a construction zone, the issues of negligence, proximate cause and superseding intervening causation will go to the jury.


Defendant Lakeside employed Mathis, who was driving the lead vehicle. Plaintiff Gregory Roberts was driving the second vehicle. Plaintiffs Larissa Roberts and Mark Sanders were passengers. Two other vehicles were involved, one owned by Pitman Transfer and operated by Smith, a Pitman Transfer employee. WCL owned the other vehicle, operated by Rivera, an employee.

Plaintiffs allege that Mathis slowed to turn into a construction zone without signaling the turn. The complaint alleges the vehicles operated by Smith and Rivera either hit plaintiff’s vehicle, hit each other causing a collision with plaintiff’s vehicle, or hit plaintiff’s vehicle, then hit each other and caused another collision with plaintiff’s vehicle. The vehicle Mathis was driving was not struck by any of the vehicles.

Plaintiffs allege Mathis, Rivera and Smith all negligently operated their vehicles by following to closely, stopping abruptly, failing to signal and failing to keep a safe lookout.

Plaintiffs allege that defendant Orders was the general contractor on the road construction project and hired Lakeside to deliver materials to the site and hired LMC to provide safety barriers and signage.

Plaintiffs also allege Orders and LMC contractually assumed a duty and had a common law duty to use reasonable care in designing, laying out and marking the construction site and breached that duty by failing to warn of slow and turning vehicles in the construction site area.

Plaintiffs claim the Orders is also vicariously liable for negligent conduct of LMC, Lakeside, Mathis and other unknown employees.

Plea in bar: Mathis and Lakeside

Mathis and Lakeside argue that because no vehicle in the collision struck the one Mathis was driving, Mathis and Lakeside have no liability despite allegations that Mathis slowed to make a left turn into the work site in front of plaintiff’s vehicle without signaling, which caused plaintiffs to slow down abruptly to avoid hitting Mathis, which, in turn, caused the collision with Smith and Rivera’s vehicles.

Mathis and Lakeside argue that Smith and Rivera, who allegedly were following too closely, was the “but for” or cause in fact of the collision, rather than any negligence by Mathis and Lakeside. These two defendants also argue Smith and Rivera’s acts were “an intervening/superseding cause of the collision.”

Plaintiffs argue that the plea in bar goes to the actual merits of their case, or, if the pleading is treated as a demurrer, the complaint presents issues of fact for the jury’s determination. The court agrees with plaintiffs.

“Under Virginia law, issues of negligence and proximate cause are generally questions of fact for a jury’s determination. … As this Court construes the present allegation, but for Mathis’ negligence in the first instance as the driver of the lead vehicle, which caused the driver of plaintiffs’ vehicle to slow down abruptly in order to avoid striking Mathis’ vehicle, the subject collision would not have occurred. The issue then becomes whether Mathis’ negligence was a proximate cause of the collision in light of additional alleged negligent acts of Smith and Rivera. …

“[T]hese issues of negligence, proximate cause and superseding intervening causation as relates to the alleged liability of Mathis and Lakeside are all issues of fact for the jury to decide in this case, rather than issues of law for this Court to decide.” The court overrules Mathis and Lakeside’s pleading either as a plea in bar or as a demurrer.

Orders’ pleadings

Orders’ plea in bar is argued in Parts A and B. In Part A, Orders argues that it is not vicariously liable for any negligence by Mathis, Smith or Rivera. However, plaintiffs only seek vicarious liability for Mathis’ acts, based on Orders’ contractual relationship with Lakeside, Mathis’ employer.

Plaintiffs allege Orders was in a joint venture with Lakeside. But a “mere agreement between a subcontractor and a general contractor for delivery of materials does not constitute a joint venture.” The court sustains Part A of Others’ plea in bar.

Part B of the plea in bar deals with the inherently dangerous activity doctrine. Plaintiffs assert that Orders had a nondelegable duty to make the construction zone safe. Orders argues that this allegation is a restatement of plaintiffs’ claim that Orders is vicariously liable for Mathis’ alleged negligence. Plaintiffs have clarified that “their theory of Orders’ liability under the inherently dangerous activity doctrine relates entirely to Orders’ contract with LMC in the context of Orders’ alleged nondelegable duty to make the construction zone safe through the ‘use of construction zone markings to avoid injury.’ Therefore, based on this representation of plaintiffs, the Court overrules Part B of Orders’ plea in bar.”

Orders’ demurrer is also in two parts. Part A of the demurrer is moot because it restates the argument in Part A of the plea in bar, which has been sustained. Part B of the demurrer raises the issues of negligence and causation. These issues, as previously stated, are for the jury, so Part B of the demurrer is overruled.

LMC’s pleadings

LMC’s demurrer relies on Orders’ arguments in support of Part B of its demurrer. Thus, LMC’s demurrer is overruled. LMC asserts a sovereign immunity defense in its plea in bar, which be taken up at a later date.

Sanders, et al. v. Wayne, et al., Case Nos. CL-19-269, 19-319, 19-312. Feb. 20, 2020; 28th Cir. Ct. (Rowlett). D. Adam McKelvey, Melissa W. Robinson, Camilla E. Shora, Christopher D. Owens, Wm. Tyler Shands, Michael J. Smith for the parties. VLW 020-8-014, 8 pp.

VLW 020-8-014

Virginia Lawyers Weekly