Negligence – Blind woman sues shopping center after vehicle accident

Where a blind woman who was struck by a vehicle as she was crossing in a designated pedestrian crosswalk at a shopping center plausibly alleged that her injuries occurred because of the manner in which the roadway and lighting were designed and maintained, her negligence claim survived the motion to dismiss.

Background

Clara Deitz sued Daleville Town Center Business Association Inc. after she was struck by a vehicle as she crossed the street in a designated pedestrian crosswalk. Deitz claims that Daleville Town Center violated its duty to supply adequate lighting and signage to protect pedestrians within crosswalks on its premises. Deitz asserts two claims: negligence and negligence per se. Defendant has filed a motion to dismiss.

Negligence per se

Although Deitz styles the counts as separate causes of action, negligence per se is simply a doctrine by which one can show breach in a negligence action. As a result, the court considers the allegations in these counts as stating one substantive cause of action for negligence. Whether Deitz can rely on the doctrine of negligence per se to establish that Daleville Town Center breached any duty of care is reserved for summary judgment or trial. A Rule 12(b)(6) motion challenges whether Deitz has plausibly alleged a claim and since the doctrine of negligence per se is not a separate claim, it is not a proper subject of a 12(b)(6) motion.

Negligence

To establish a common-law negligence claim, a plaintiff must plead “the existence of a legal duty, violation of that duty, and proximate causation which results in injury.” The issue on this motion to dismiss is whether Deitz has plausibly alleged a duty of care that Daleville Town Center owed.

In a premises liability cause of action, the owner of property owes a duty to its business invitees to keep the premises in a reasonably safe condition. Deitz adequately alleges sufficient facts that she was a business invitee and that Daleville Town Center and its roadways were open to the public such that it had a duty of ordinary care to maintain the premises and roadways in a reasonably safe condition.

Daleville Town Center argues that it had no duty to protect Deitz against the negligent action of a third-party such as Cox and that it had no duty to install lighting at the crosswalk. Daleville Town Center relies on the line of cases from the Virginia Supreme Court holding that “generally a person does not have a duty to protect another from the conduct of third persons”

But Deitz’s claim is not that Daleville Town Center owed a duty to prevent Cox from hitting her with his truck. Rather, Deitz plausibly alleges that her injuries occurred because of the manner in which the premises (the roadway and lighting) were designed and maintained. Whether Daleville Town Center breached duty of ordinary care by failing to install proper lights and signage is a question of fact to be decided on a more fulsome record than exists at the motion to dismiss stage of the case. Deitz plausibly alleges that Daleville Town Center owed a duty of reasonable care.

Contributory negligence

Daleville Town Center argues that Deitz’s claims must be dismissed because the dangerous condition, darkness, was open and obvious, and therefore Deitz was contributorily negligent by crossing the street knowing that it was dark. Deitz argues that a combination of factors, including darkness, created a hazardous condition, and therefore she was not contributorily negligent. Additionally, Deitz argues that Daleville Town Center does not provide evidence that she failed to exercise ordinary care.

Because Deitz is blind, she is held to the standard of care of a reasonable blind person. For the purposes of a motion to dismiss, the allegations in the complaint do not establish as a matter of law that Deitz acted unreasonably by crossing Town Center Road in a crosswalk along with a sighted person.

Defendant’s motion to dismiss granted in part, denied in part.

Dietz v. Daleville Town Center Business Association Inc., Case No. 7:25-cv-738, April 27, 2026. WDVA at Roanoke (Ballou). VLW 026-3-192. 8 pp.

Full-Text Opinion

VLW 026-3-192
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