New trial ordered over lack of contributory negligence instruction

By Nathan Bass | Nov 27, 2012


CHARLESTON – A motor vehicle accident case has been sent back to the Circuit Court of Kanawha County for a new trial because the jury was not instructed to assess whether the plaintiff, a passenger in one of the vehicles involved, contributed to his own injuries.

“It is a settled principle in our law that a passenger in a private motor vehicle has a duty to exercise ordinary care under the circumstances for his or her own safety,” the Court wrote in starting its analysis.

On Feb. 16, 2007, a vehicle driven by Edward Keith Withrow was struck by a vehicle driven by Alicia Halcomb at the intersection of Mountaineer Boulevard and Southridge Boulevard in South Charleston, according to the case file.

Christopher Smith was a passenger in the back of Withrow’s vehicle and he was injured in the collision.

At a trial in November of 2010, evidence was presented by each party suggesting that the other driver was responsible for the accident.   

Halcomb, the defendant in the suit, suggested that plaintiff Smith contributed to the collision because Smith testified that he had said to driver Withrow, “It’s clear, let’s go,” before Withrow proceeded into the intersection in which the collision occurred.

According to court filings, Smith claimed he did not see Halcomb’s vehicle turn onto the street approaching the intersection until Withrow’s vehicle was more than halfway through the intersection.  Additionally, Withrow testified that he didn’t hear Smith say anything.

Holcomb argued to the circuit court that the jury’s verdict should have allowed the jury to assess whether Smith contributed to his own injuries but the court rejected the defendant’s arguments on the issue.

The jury determined that Halcomb was “negligent in the operation of her motor vehicle” and returned a verdict in favor of Smith for $573,542.32.  Halcomb’s post-trial motion for a new trial was denied and she appealed to the Supreme Court of Appeals of West Virginia.

“Defendant Halcomb asserts that plaintiff Smith may have breached a duty of care to himself when he told Mr. Withrow, “It’s clear, let’s go.” before Mr. Withrow drove into the intersection and collided with the defendant. The defendant therefore asserts that the jury should have been permitted to weigh whether that carelessness caused or contributed to the plaintiff’s injuries. We agree.

The Court explained that although Withrow said he did not hear Smith say, “It’s clear, let’s go,” it was up to the jury to determine whether Withrow’s statement was credible. 

“The jury’s verdict should therefore have been set aside, and the trial court erred in not awarding the defendant a new trial,” the opinion states.

Justice Robin Jean Davis disagreed with the majority and issued a dissent. 

“The record in this case shows that the defendant had a third-party suit against Mr. Withrow, the driver of the car in which the plaintiff, Mr. Smith, was a passenger," Davis wrote. "The jury heard both cases together. The jury rejected the defendant’s claim against Mr. Withrow and found that Mr. Withrow was not at fault in causing the accident.

“In spite of the fact that the jury found that the driver of the car was not at fault in causing the accident, the majority has decided that the trial court erred in not giving a contributory negligence instruction.

“I find it difficult to discern, under the facts of this case, how Mr. Smith can be held partly liable for the accident as a passenger, when the driver of the car in which he was riding was completely exonerated of all fault by the jury.

"To warrant an instruction on contributory negligence requires evidence of fault on the part of the plaintiff. To allow the jury to speculate as to what Mr. Withrow heard does not constitute evidence of contributory negligence.

“In spite of the lack of any evidence of contributory negligence, the majority has granted a new trial on this issue … Based upon the foregoing, I respectfully dissent.”

The case will now return to the Circuit Court of Kanawha County for a new trial.


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