Blind pedestrian’s negligence suit proceeds in part

A blind woman who was struck by a vehicle while crossing a parking lot will see her claims proceed to trial, after the U.S. District Court for the Western District of Virginia partially denied the shopping center’s motion to dismiss.

The woman, Clara Deitz, claimed that Daleville Town Center was negligent, as she alleged it failed to ensure proper safety for pedestrians. She cited allegedly inadequate lighting, signage and road markings to alert drivers to pedestrians to support her claims.

The shopping center moved to dismiss, claiming that Deitz did not plausibly allege a duty of care owed by Daleville Town Center.

U.S. District Judge Robert S. Ballou allowed her common law negligence claim to proceed, stating Deitz “alleges sufficient facts to plausibly state a claim of common law negligence.”

However, the judge granted the motion to dismiss Deitz’s negligence per se claim.

“Because negligence per se does not state a separate cause of action, her negligence per se claim must be dismissed,” Ballou wrote. “Further, the allegations in the complaint do not establish that Deitz was contributorily negligent as a matter of law.”

Ballou’s April 27 opinion is Deitz v. Daleville Town Center Business Association Inc. (VLW 026-3-192).

Counsel for the parties in this case did not respond to requests for comment by deadline.

Background

In March 2025, Deitz was at Daleville Town Center, a “Traditional Neighborhood Development” of mixed-use commercial and residential areas. The development is operated by Daleville Town Center Business Association Inc., doing business as Daleville Town Center.

At approximately 8 p.m., Deitz was crossing Town Boulevard in a designated pedestrian crosswalk when she was struck by a driver turning onto Town Boulevard. Deitz was crossing the street with her two housemates when the accident occurred. Deitz and one of her housemates are blind.

Per the opinion, streetlamps in the area were lit at the time, as it was “nautical twilight” conditions at the time of the incident.

As a result of the incident, Deitz sustained unspecified “personal injuries.”

Deitz filed suit, alleging claims of negligence and negligence per se against Daleville Town Center “for failing to ensure pedestrian safety and to provide proper street lighting.”

In her suit, Deitz contended that the lighting and markings on Town Boulevard were inadequate to alert oncoming traffic to pedestrians, and that Daleville Town Center “owed a duty to supply adequate lighting, retroreflective pavement markings, and/or appropriate pedestrian signage.”

Deitz claimed that the crosswalk was not bordered with white reflective lines and that there were no signs warning drivers that there was a crosswalk ahead.

Separate from her negligence claim, Deitz asserted a negligence per se claim, arguing that Daleville Town Center was negligent “for failing to follow the Manual on Uniform Traffic [Control] Devices by not providing appropriate pavement markings or use pedestrian-crossing signage.”

Cause of action

In her lawsuit, Deitz alleged two causes of action with separate negligence and negligence per se claims.

But Ballou wrote that under Virginia statute, “a claim for negligence per se does not create a separate cause of action from negligence, but ‘suppl[ies] a new standard for determining whether the defendants performed their common law duty of care,’” quoting Butler v. Frieden.

The judge also quoted the 1986 Williamson v. Old Brogue Inc. decision, which held in relevant part that “the doctrine of negligence per se does not create a cause of action where none otherwise exists.” As such, Ballou concluded, the claims do not represent two distinct causes of action.

“Although Deitz styles Counts 1 and 2 as separate causes of action, negligence per se is simply a doctrine by which one can show breach in a negligence action,” Ballou wrote. “As a result, the Court considers the allegations in these counts as stating one substantive cause of action for negligence.”

Ballou noted that the matter of whether Deitz can rely on the doctrine of negligence per se in her claim against Daleville Town Center is reserved for trial or summary judgment.

Duty

Deitz further presented her claim against Daleville Town Center as a premises liability cause of action, arguing Daleville Town Center failed to maintain the crosswalk “in a reasonably safe condition.”

Ballou noted that the issue in the motion to dismiss hinged on whether Deitz plausibly alleged a duty of care owed to her by Daleville Town Center.

In premises liability cases, Ballou noted, a property owner owes a duty to “its business invitees” to keep premises “in a reasonably safe condition.”

The judge cited precedent dating back to the 1933 City of Roanoke v. Sutherland decision, which states in relevant part that “[a] reasonable degree of care is required of cities in constructing their sidewalks and in keeping them in repair.”

“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,” Ballou wrote.

Daleville Town Center countered by arguing it had no duty to protect Deitz against the driver’s “negligent action” and that it had no duty to install crosswalk lighting.

To support its claim, Daleville Town Center cited the Supreme Court of Virginia’s Kellermann v. McDonough decision, where it determined that “generally a person does not have a duty to protect another from the conduct of third persons.”

But a special relationship can exist as an exception to this rule, with examples including carrier-passenger, innkeeper-
guest and business proprietor-
invitee relationships.

“But, Deitz’s claim is not that Daleville Town Center owed a duty to prevent [the driver] from hitting her with his truck,” Ballou wrote. “Rather, Deitz plausibly alleges that her injuries occurred because of the manner in which the premises were designed and maintained.”

As such, the judge wrote that the issue of whether Daleville Town Center breached duty or ordinary care “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 her a duty of reasonable care,” Ballou continued.

Contributory negligence

Daleville Town Center argued that Deitz’s claims should be dismissed due to the “open and obvious” darkness condition and that Deitz still crossed the street despite knowing this, making her contributorily negligent.

Deitz counterargued that a combination of factors created the conditions leading to the accident, and that Daleville Town
Center cannot provide evidence she failed to exercise ordinary care.

Ballou wrote that the standard of care slightly differs for Deitz, as she is held to the standard of care of a reasonable blind person. The standard states that “the proper test for determining contributory negligence is the test of a reasonable person under the same disabilities and infirmities in like circumstances.

“However, it may be incumbent on one with a physical disability to put forth a greater degree of effort than would otherwise be necessary to attain that standard of care which is required of everyone,”
Ballou wrote.

In the present case, however, Ballou stopped short of granting a motion to dismiss on these grounds.

“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 Boulevard] in a crosswalk along with a sighted person,” Ballou wrote.

As such, Deitz’s negligence claims stand and the motion to dismiss was partially denied. The motion to dismiss was granted on the negligence per se claims, as negligence per se does not state a separate cause of action.

Deitz v. Daleville Town Center Business Association Inc.

THE ISSUE    Does the plaintiff properly allege a negligence claim against a shopping center to be decided by a jury?

Answer      Yes (U.S. District Court for the Western District of Virginia)

Attorneys  Jason Whiting, Roanoke, Whiting Injury Law (plaintiff), Glenn B. Williams, Roanoke, Frith Anderson and Peake (defendant)

• Deitz v. Daleville Town Center Business Association Inc.
• City of Roanoke v. Sutherland
• Kellermann v. McDonough
• Williamson v. Old Brogue Inc.