Even when a biker is injured in a crash with a car and the Defendant driver is not present to testify as to his version of what happened, the bicyclist can still lose his or her case under Virginia law.
A Virginia Lawyers Weekly case report reminds W&OD Bike Path injury lawyer Doug Landau that the two-wheeled traveler does not always win in court against the four-wheeled defendant.
In this case, the plaintiff was riding a bicycle on September 19, 2005, on a sidewalk in Virginia Beach. As she crossed the driveway of a bank parking lot, she claims the decedent (who passed away from unrelated causes) began to exit the parking lot, bumping plaintiff’s bicycle and knocking her to the ground. Plaintiff was still under doctor’s treatment for neck and back injuries from a car accident seven months earlier, which also resulted in a lawsuit and settlement.
In the suit from the February 2005 car accident, the plaintiff claimed permanent injuries to her neck and back in sworn interrogatories and in a deposition under oath. In the suit arising from the September 2005 bicycle accident, plaintiff claimed she had substantially recovered from her February accident just prior to the September bicycle accident and now had permanent injuries as a result of the bicycle accident.
Plaintiff initially claimed more than $33,000 in incurred medical expenses from the bicycle accident with injuries alleged included neck and back injury, sacroiliitis, myofascial pain syndrome. The injured biker claimed special damages of $17,543.62 plus unspecified future medicals.
However, since some of those medical bills had been claimed in the February lawsuit, which settled, they were excluded from evidence by the court on defendant’s motion in limine. (A “motion in limine” is a motion borough before trial to limit testimony, evidence or both.) The plaintiff’s lawyer had demanded $50,000, but the insurance company would only offer $10,000, so a lawsuit was filed.
At the conclusion of the plaintiff’s evidence, defendant moved to strike plaintiff’s evidence on the basis that the plaintiff’s testimony regarding the alleged negligence of the decedent was uncorroborated as required by Virginia Code 8.01-397 (known as the “Dead Man’s Statute”), and the plaintiff had failed to identify the decedent as the driver involved in the accident.
The court sustained defendant’s motion and entered judgment in favor of the defendant. The Norfolk Circuit Court decided the case; the jury never got to deliberate as the trial judge ruled for the defendant instead.