Patricia Spivey v. Annitavia Latrice Thomas

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Fulton and White
Argued at Norfolk, Virginia
PATRICIA SPIVEY
MEMORANDUM OPINION* BY
v. Record No. 0713-22-1 JUDGE JUNIUS P. FULTON, III
MARCH 21, 2023
ANNITAVIA LATRICE THOMAS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Tyneka L.D. Flythe, Judge
Alexander Christopher Zaleski (Allstate House Counsel, on brief),
for appellant.
Kevin D. Sharp (Eric K. Washburn; Shapiro, Washburn & Sharp,
PC, on brief), for appellee.
While crossing the road inside a crosswalk, Annitavia Latrice Thomas was struck by a car
driven by Patricia Spivey. Neither party saw the other prior to the collision. Thomas sued for
damages. At the conclusion of Thomas’s evidence, Spivey made a motion to strike on the grounds
that Thomas had been contributorily negligent as a matter of law, thus barring any recovery. She
renewed the motion at the close of all the evidence. The trial court denied Spivey’s motions and the
jury returned a verdict in favor of Thomas, awarding her damages totaling $50,000. Spivey now
appeals the trial court’s ruling that Thomas was not contributorily negligent as a matter of law, as
well as its refusal of two jury instructions.
*
This opinion is not designated for publication. See Code § 17.1-413.
BACKGROUND
At approximately 5:50 a.m. on October 16, 2020, in the City of Newport News, Thomas
was walking in a northwesterly direction along the sidewalk on Marshall Avenue on her way to her
job as a security guard at a Food Lion grocery store. It was dark and rainy, and Thomas was
dressed in her dark gray and black security uniform. When Thomas arrived at the intersection with
Briarfield Road, she stopped and looked for traffic. Thomas did not see any cars in the intersection
and when her light turned green, she turned left and began crossing Marshall Avenue at the
crosswalk to travel along Briarfield Road. When Thomas was approximately halfway across the
street, she was struck on her right side by Spivey’s car and thrown to the ground. Thomas never
saw Spivey’s vehicle.
Spivey was traveling westward along Briarfield Road and made a left turn onto Marshall
Avenue. She likewise admitted that although her headlights and the streetlights were on and she
was not otherwise distracted, she did not see Thomas prior to hitting her; “[a]ll [she] felt was a
bump.” Spivey testified at trial that she turned at a green arrow, which Thomas disputed, claiming
that she had a green signal to cross at the time of the collision. There were no witnesses to the
accident.
Thomas agreed on cross-examination that although she looked both ways to ensure there
was no traffic before entering the crosswalk, she did not turn and look again after she began to
cross. She further agreed that “if [she] had looked, [she] would have seen the car,” and “the only
reason [she] didn’t see it is because [she] didn’t look.”
At trial, the court refused a modified version of Model Jury Instruction 10.020 informing the
jury that (modified portions in italics):
The duty to keep a proper lookout requires a driver or
pedestrian to use ordinary care to look in all directions for a vehicle
or person that would affect her driving or path of travel, to see what
a reasonable person would have seen, and to react as a reasonable
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person would have acted to avoid a collision under the
circumstances.
The court also refused an instruction that:
The duty of the Plaintiff to look for traffic does not cease but
becomes more insistent when she comes to the middle of the street,
before stepping into the lane of travel of vehicles coming from her
right.
If the Plaintiff fails that duty to look for vehicles coming
from her right, then she is negligent.
The language in this second rejected instruction was derived from the Virginia Supreme Court’s
opinion in Hopson v. Goolsby, 196 Va. 832, 838 (1955).
ANALYSIS
1. Contributory Negligence
“It is well-settled that ‘a party who comes before us with a jury verdict approved by the
circuit court “occupies the most favored position known to the law.”’” N. Va. Kitchen, Bath &
Basement, Inc. v. Ellis, 299 Va. 615, 622 (2021) (quoting Ravenwood Towers, Inc. v. Woodyard,
244 Va. 51, 57 (1992)). “As a general rule, [w]e will not set aside a [circuit] court’s judgment
sustaining a jury verdict unless it is ‘plainly wrong or without evidence to support it.’” Id.(alterations in original) (quoting Parson v. Miller, 296 Va. 509, 524 (2018)). Where the circuit
court has “declined to strike the plaintiff’s evidence or to set aside a jury verdict, the standard of
appellate review in Virginia requires this Court to consider whether the evidence presented, taken in
the light most favorable to the plaintiff, was sufficient to support the jury verdict in favor of the
plaintiff.” Id. (quoting Parson, 296 Va. at 523-24).
The question as to whether a pedestrian, who is struck by
an automobile . . . at or near a regular street crossing, or at a place
customarily used as a crossing, exercised proper care, or has been
guilty of contributory negligence which will defeat his recovery for
injuries sustained by such collision, is almost invariably one for the
jury.
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Danner v. Cunningham, 194 Va. 142, 146-47 (1952) (quoting 2 Blashfield Cyc. of Automobile Law
1020). The issue of contributory negligence becomes a question of law for the court “only when
reasonable minds could not differ.” Meeks v. Hodges, 226 Va. 106, 109 (1983).
It is axiomatic that a pedestrian endeavoring to cross the roadway owes a reasonable duty
of care. See, e.g., Hopson, 196 Va. at 837-39; Hooker v. Hancock, 188 Va. 345, 355-56 (1948);
Stark v. Hubbard, 187 Va. 820, 826 (1948). In Thornton v. Downes, 177 Va. 451, 458 (1941),
our Supreme Court held that:
When a pedestrian . . . steps from the sidewalk into the street at an
intersection, the law imposes upon him the legal duty of
ascertaining if any vehicular traffic is approaching from the left. If
the way be clear, he has the right to proceed to the comparative
zone of safety, which is the center of the street. Upon his arrival at
the center of the street, he is under the legal duty of looking to his
right for approaching vehicles, and while the statute . . . accords
him the right of way, he would be guilty of contributory negligence
. . . if he attempted to assert his right of way in the face of
approaching traffic dangerously near to him.
See also Stark, 187 Va. at 826 (reiterating the pedestrian’s duty “to look to her right when she
reach[es] the middle of the highway”).
In Hopson, the Court held that “[t]he duty of the . . . plaintiff to look did not cease but
became more insistent when she came to the middle of the street and was stepping into the travel
lane of cars coming from her right.” 196 Va. at 838. And “if a person having a duty to look
‘carelessly undertakes to cross without looking, or, if looking, fails to see or heed traffic that is
obvious and in dangerous proximity and continues on into its path, [s]he is guilty of negligence
as a matter of law.’” Id. at 839 (quoting Hooker, 188 Va. at 356). The plaintiff in Hopson failed
to perform that duty and “necessarily was guilty of contributory negligence” because “[h]ad [the
plaintiff] performed that duty, she would have seen the defendant’s car approaching dangerously
near.” Id.-4-
Unlike in this case, the plaintiff-pedestrian in Hopson crossed not at a crosswalk but “210
feet north of” an intersection “into which traffic moves from five directions.” Id. at 833-34. She
testified that before crossing, “she looked up and down the street twice and nothing was
passing,” but “that after she started across she did not again look to her right or to her left, but
looked straight ahead and did not see the car that struck her and did not hear it until the noise of
the brakes.” Id. at 835. At the time of the collision, the defendant in Hopson was driving
straight along the road the plaintiff sought to cross. Id. Consequently, as the Court remarked,
“[a] glance to [the plaintiff’s] right would have warned her of the danger of going ahead. There
was nothing to keep her from looking, and there was every reason why she should look.” Id. at
838-39.
Spivey largely builds her case around Thomas’s concession that “if she had looked, she
would have seen the Spivey vehicle and that the only reason she did not see the Spivey vehicle is
because she did not look.” Though perhaps accurate, this conclusion does not resolve whether
Thomas “exercised such vigilance and care as an ordinarily prudent person would have exercised
under the existing circumstances.” Schutt v. Brockwell, 214 Va. 38, 41 (1973). Thomas crossed
with the light at the crosswalk of a simple four-way intersection of less complexity than that in
Hopson. And most significantly, Spivey was traveling not straight ahead like the vehicle in
Hopson, but making a left turn behind and to the right of Thomas. “When a defendant relies
upon contributory negligence as a defense, he has the burden of proving by the greater weight of
the evidence not only that the plaintiff was negligent, but also ‘that his negligence was a
proximate cause, a direct, efficient contributing cause of the accident.’” Karim v. Grover, 235
Va. 550, 552 (1988) (internal citation omitted) (quoting Whitfield v. Dunn, 202 Va. 472, 477
(1961)). Thus, though Thomas may have been negligent in failing to continue looking left and
right as she continued across Marshall Avenue, reasonable minds could differ as to (1) whether
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this potential negligence was a proximate cause of the collision, and (2) whether she was
negligent at all in failing to completely turn around and see if any cars were approaching her
from behind as she crossed the road. 1 Consequently, Thomas was not contributorily negligent as
a matter of law and the trial court properly overruled the motions to strike and left the question to
the jury.
2. Jury Instructions
Properly instructing the jury “rest[s] within the sound discretion of the trial court.”
Cooper v. Commonwealth, 277 Va. 377, 381 (2009). The sole purpose of appellate review of
jury instructions is “to see that the law has been clearly stated and that the instructions cover all
issues which the evidence fairly raises.” Dorman v. State Indus., Inc., 292 Va. 111, 125 (2016).
“We review a trial court’s decisions in giving and denying requested jury instructions for abuse
of discretion.” Conley v. Commonwealth, 74 Va. App. 658, 675 (2022). “Whether a proffered
jury instruction accurately states the law, however, is reviewed de novo.” Holmes v.
Commonwealth, 76 Va. App. 34, 53 (2022). “And in deciding whether a particular instruction is
appropriate, we view the facts in the light most favorable to the proponent of the instruction.”
Cooper, 277 Va. at 381.
We first begin our analysis considering the modified Model Jury Instruction 10.020, in
which the trial court refused Spivey’s requested inclusion of a pedestrian’s duty of care. Spivey
argues that the trial court abused its discretion because it “instructed the jury that [Spivey’s] duty
to keep a proper lookout required her to use ordinary care to look in all directions” but rejected
the instruction defining the scope for Thomas. Spivey argues that “no other instruction given to
the jury . . . properly defined the scope of the duty of the pedestrian/Thomas to keep a proper
1
Although Spivey emphasized at oral argument that her car struck Thomas on her right
side, it is nevertheless clear from the record that her car entered the intersection from behind
Thomas after Thomas had already entered the intersection.
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lookout.” Consequently, she was unable to “argue that the pedestrian had a concurrent duty that
required her to use ordinary care to look in all directions.”
We disagree with Spivey’s analysis. The jury was given a detailed instruction of a
pedestrian’s duties by way of granted Jury Instruction No. 16:
A pedestrian has a duty to use ordinary care when she is crossing
and/or walking along, the hard surface and/or traveled portion of a
highway or street:
(1) to keep a lookout for motor vehicles;
(2) to refrain from entering or crossing an intersection; the hard
surface of a highway or street; the traveled portion of a highway or
street in disregard of traffic approaching in such a manner that a
reasonable person would not attempt to enter or cross; and
(3) to step from her course; intended path of travel into a place of
safety if it reasonably appears to her that she is in danger of being
struck by a motor vehicle.
Because granted Instruction No. 16 fairly and accurately informed the jury of a pedestrian’s
duties when crossing the street, the law in this case, including the duties of a pedestrian, was
“clearly stated and . . . the instructions cover all issues which the evidence fairly raises.”
Dorman, 292 Va. at 125. Including a second instruction about the pedestrian’s duties would be
duplicative and “inappropriately ‘single out a part of the evidence tending to establish a
particular fact.’” Holmes, 76 Va. App. at 54 (quoting Woods v. Commonwealth, 171 Va. 543,
548 (1938)). “When granted instructions fully and fairly cover a principle of law,” as the trial
court did here with its instruction about the pedestrian’s duties, “a trial court does not abuse its
discretion in refusing another instruction relating to the same legal principle.” Daniels v.
Commonwealth, 275 Va. 460, 466 (2008).
We likewise reject Spivey’s claim that the trial court erred when it refused to instruct the
jury that a pedestrian’s duty “to look for traffic does not cease but becomes more insistent when
she comes to the middle of the street, before stepping into the lane of travel of vehicles coming
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from her right” and that “[i]f the Plaintiff fails that duty to look for vehicles coming from her
right, then she is negligent.” This language was derived from the Supreme Court’s holding in
Hopson. 196 Va. at 838. But we have “cautioned against lifting the ‘language of a specific
opinion’ for a jury instruction given that an appellate opinion ‘is meant to provide a rationale for
a decision—and may not translate immutably into jury instructions.’” Mason v. Commonwealth,
49 Va. App. 39, 49 (2006) (quoting Va. Elec. & Power Co. v. Dungee, 258 Va. 235, 251 (1999)).
As noted, supra, the circumstances of the collision in Hopson are distinguishable from
those in this case. In Hopson, the vehicle was driving straight along the road which the
pedestrian attempted to cross; the traffic was coming directly from the pedestrian’s right. In
contrast, Spivey was making a left turn onto the road Thomas was crossing; Spivey’s car came
from behind Thomas. The intersection in Hopson was also more complex than that in this case
and, unlike Thomas, the pedestrian in Hopson did not cross at a crosswalk. All of those various
factors were in consideration when the Hopson Court issued its ruling about the pedestrian’s
duties, and that language, tailored to that case, was not an appropriate jury instruction in this one.
Furthermore, we have held that the jury was sufficiently instructed on the pedestrian’s
duties when crossing the street. Instructing the jury that there is a point at which the pedestrian’s
duty “becomes more insistent” would clearly overemphasize “a part of the evidence.” Woods,
171 Va. at 548. The trial court fulfilled its obligation to fully instruct the jury about the
pedestrian’s duties and did not err “in refusing another instruction relating to the same legal
principle.” Daniels, 275 Va. at 466.
CONCLUSION
Reasonable minds could differ regarding whether Thomas was contributorily negligent as
she crossed Marshall Avenue the morning she was struck by Spivey’s car. The trial court
properly denied Spivey’s motions to strike and left the question of contributory negligence to the
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jury. The trial court also fully and clearly instructed the jury on all principles of law fairly raised
by the evidence in this case. We therefore affirm the rulings of the trial court.
Affirmed.
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