The U.S. United States District Court, W.D. Virginia, Danville Division reached a decision this year in a personal injury lawsuit arising out of the Federal Tort Claims Act, which involved a U.S. Postal Service employee allegedly running over a woman’s foot.
In the case, Pannell v. US, Dist. Ct., WD Va. (2013), the nine year old plaintiff had been sitting on the porch, when she noticed the civilian vehicle that the rural postal carrier drove approaching her grandmother’s house. The plaintiff and her cousin ran across the lawn toward the mailbox, making eye contact with the USPS employee, who also waved at them.
However, as the girls approached the mailbox, the plaintiff fell, and slid such that her legs were under the vehicle. The plaintiff’s cousin attempted unsuccessfully to pull her from under the vehicle, and as a result, as the car drove away, one of the tires ran over the Plaintiff’s right foot.
The plaintiff subsequently filed a negligence lawsuit against the United States, pursuant to a claim under the Federal Tort Claims Act. The foregoing conclusions were the result of a one day bench trial.
Under FTCA, the court is to apply the underlying negligence law of the state wherein the action arises. Virginia law defines negligence as a failure to exercise a degree of care which an ordinarily prudent person would exercise under similar circumstances, in order to avoid creating a risk of injury to another person.
However, that an injury resulted does not raise the presumption of negligence. A plaintiff bears the burden of showing by a preponderance of the evidence that the defendant owed some duty to the plaintiff, breached that duty, negligence was responsible for that breach, and that the injury was the proximate cause of the defendant’s negligence.
The court then gave an overview of the duty of drivers to keep a proper outlook, as set forth in a case by the Supreme Court of Virginia. The duty is ” not a duty to see; rather, it is a duty to look with reasonable care and to heed what a reasonable lookout would have revealed.” However, this is not the same as an absolute duty to see anything and everything, but rather to exercise reasonable care in looking, whereby something may be discovered in plain view. A more straightforward example of this would be the duty to look in one’s blind spot prior to changing lanes.
In this case, the court found, the plaintiff failed to prove which direction the vehicle was facing. This was critical because it was central to determining whether the defendant could possibly have seen the plaintiff upon looking. It was not clear from the nature of the plaintiff’s injuries whether she was near the front of the vehicle, or its rear, and there was conflicting evidence in this regard. Therefore, the court held, the plaintiff failed to meet her burden of proof necessary in order to establish negligence. Thus, the court ruled in favor of the defendant.
Due to the lack of additional information regarding what evidence was presented at trial, it is difficult to assess what happened in this case. One possibility is that it was the type of freak accident in which the defendant truly was not at fault, although it is no less unfortunate that the young girl was injured. Another explanation, which seems to stem from the failure to establish the position of the car, is that there was some sort of weakness in proof, perhaps inadvertently.
Nonetheless, the case provides a great illustration of the premise that personal injury negligence lawsuits must be proved in order to be successful. Merely becoming injured at someone else’s hands, unfortunately, is not sufficient proof to recover a damage award.
If your child was injured or killed as a result of someone else’s negligence, contact the experienced personal injury attorneys at Lebowitz & Mzhen, LLC. Our lawyers have extensive experience advocating on behalf of individuals and families who have suffered due to someone else’s negligent behavior in Maryland. We have represented families who have lost loved ones as a result of personal injury or wrongful deaths caused by auto accidents, hospital negligence, medical malpractice, and other traumatic events. You can reach us by calling 1-800-654-1949 or through our website in order to schedule your free initial consultation.
More Blog Posts:
D.C. District Court Ruling Upholds Assumption of Risk Defense to In-Home Construction Accident Lawsuit, Maryland Accident Law Blog, published December 10, 2013
U.S. Court of Appeals Decision Affirms Necessity of Certification in Medical Malpractice Claims, Maryland Accident Law Blog, published December 3, 2013