Wrongful death claim question

[jonesgirl6201]

What is the name of your state? Virginia

My sister was killed on the job in Virginia. She works at a hospital and was walking up an alley when a truck delivering supplies backup over her. She was in his blind spot. That alley is used by employee buses and one backsup every 10 minutes so the "backup" signal is heard all the time. That truck did have a working signal. She did have a cell phone to her ear at one point - she had just finished a conversation with her son. A wrongful death lawyer was retained. Then we found out that she had a blood alcohol content over the legal limit at the time of her death. SHe had had a prior DUI conviction. She doesn't normally drink during the day but that day happened to be her son that was murdered the year before and a difficult day to get through. Since she had the cell to her ear and the over the limit BAC the lawyer dropped the case and said that according to Virginia law because she might have been slighlt negligent in her death that they was no hope of any recovery. She has 2 sirviving children and I just a second opinion. The lawfrim said that VA's laws are very different thatn the resat of the US. Is this true?

[moburkes]

Is what true?

Before you said that you had spoken with an attorneyand that she was on the cell, and that she was drunk, I would have asked why she was walking in the street?

You always have the option of taking the information to another attorney, but I'm not sure that you will receive different results.

The truck was backing up. The truck had the sounds on. Your sister was in the street, and apparently, not paying attention. The alcohol would have slowed her instincts.

Sorry.

I take it that she did not have a life insurance policy.

edited:

Oh, and how was she "on the job"? What was she doing in the alley, talking on the phone and drunk, at work? What type of work does she do?

[ellencee]

Originally Posted by jonesgirl6201

What is the name of your state? Virginia

My sister was killed on the job in Virginia. She works at a hospital and was walking up an alley when a truck delivering supplies backup over her. She was in his blind spot. That alley is used by employee buses and one backsup every 10 minutes so the "backup" signal is heard all the time. That truck did have a working signal. She did have a cell phone to her ear at one point - she had just finished a conversation with her son. A wrongful death lawyer was retained. Then we found out that she had a blood alcohol content over the legal limit at the time of her death. SHe had had a prior DUI conviction. She doesn't normally drink during the day but that day happened to be her son that was murdered the year before and a difficult day to get through. Since she had the cell to her ear and the over the limit BAC the lawyer dropped the case and said that according to Virginia law because she might have been slighlt negligent in her death that they was no hope of any recovery. She has 2 sirviving children and I just a second opinion. The lawfrim said that VA's laws are very different thatn the resat of the US. Is this true?

Virginia is a contributory negligence state, meaning that if the injured party (plaintiff) was negligent, then the injured party has no legal recourse except for a potential last fair chance defense.
In other words, just because your sister was over the limit for blood alcohol and had at some point been talking on the cell phone does not mean she was unable to get out of the way of truck's backing up. If the driver had looked to make sure noone was behind him, taking the last fair chance at not hitting someone, he probably wouldn't have hit her.

Noone knows if she was in his blind spot unless there was an unbiased witness to the accident. If she is an alcoholic or is a drug abuser, just because her BAC was above "the limit" does NOT mean she was drunk. An unbiased witness who saw her staggering and, or oblivious to traffic could justify the charge of her being drunk but without it, a medical and/or behavioral expert can testify that BAC in an addict are NOT proof-positive the person was drunk or impaired at all.

Here's a site for you to review and I recommend that you use the "Ask about your Case" option and run it by attorneys from Virginia.

Best wishes,
EC

Originally Posted by ellencee

If the truck's backup warning had sounded...he probably wouldn't have hit her.

This may not change your answer, Ellencee, but just to keep it clear: the truck's backup signal was working.

Originally Posted by jonesgirl6201

That truck did have a working signal.

[ellencee]

Originally Posted by Gevalia

This may not change your answer, Ellencee, but just to keep it clear: the truck's backup signal was working.

My bad. I'll take that part out of my answer! Thanks for the catch,
EC

[ForFun]

Originally Posted by jonesgirl6201

the lawyer dropped the case and said that according to Virginia law because she might have been slighlt negligent in her death that they was no hope of any recovery. The lawfrim said that VA's laws are very different thatn the resat of the US. Is this true?

Yes, your lawyer is correct. VA is a contributory negligence state, which would bar recovery.

Also, the "last clear chance" doctrine does not supersede contributory negligence. If the opportunity to avoid the accident was as available to your sister as to the truck diver, then your sister's negligence was a proximate cause and she (you) cannot recover.

[ellencee]

Originally Posted by ForFun

Yes, your lawyer is correct. VA is a contributory negligence state, which would bar recovery.

Also, the "last clear chance" doctrine does not supersede contributory negligence. If the opportunity to avoid the accident was as available to your sister as to the truck diver, then your sister's negligence was a proximate cause and she (you) cannot recover.

Not according to the law.

Last Clear Chance - An Exception To Contributory Negligence:

As indicated above, the doctrine of last clear chance is a means of avoiding the effect of the doctrine of contributory negligence. A plaintiff who is contributorily negligent may nevertheless recover in the motor vehicle accident lawsuit if the plaintiff is in a situation of helpless peril, and thereafter the defendant had a fresh opportunity to avoid injury to the plaintiff and negligently failed to do so. Under these circumstances it is said that the defendant had the "last clear chance." Maryland has an unusual limitation on the application of last clear chance in car accident lawsuits and other negligence cases that renders this defense inapplicable in many cases.

[url]http://www.ashcraftandgerel.com/Welcome.html[/url]

EC

[ForFun]

Originally Posted by ellencee

Not according to the law

.

Wow, a source! You've improved since the granny thread (), but you're still wrong.

In the future, when conducting legal research, you may want to actually have a looksy at the law rather than rely on a generic paragraph from Ashcraft & Gerel's website. (of course, I am the most stupid person you've encountered on this forum, so feel free to ignore my advice and continue to dish out incorrect info ).

From The Supreme Court of Virginia: "[L]ast clear chance does not supersede contributory negligence. A negligent plaintiff may recover only if his negligence was a remote [255 Va. 277] rather than a proximate cause of the accident. If the opportunity to avoid the accident is as available to a plaintiff as to a defendant, then the plaintiff's negligence is a proximate cause rather than a remote cause, and bars recovery. Cook v. Shoulder, 200 Va. 281, 285-86, 105 S.E.2d 860, 863 (1958)." Williams v. Harrison, 497 S.E.2d 467, 255 Va. 272 (Va., 1998).

Did you really think that I just made this stuff up? LOL.

[ellencee]

Originally Posted by ForFun

Wow, a source! You've improved since the granny thread (), but you're still wrong.

In the future, when conducting legal research, you may want to actually have a looksy at the law rather than rely on a generic paragraph from Ashcraft & Gerel's website. (of course, I am the most stupid person you've encountered on this forum, so feel free to ignore my advice and continue to dish out incorrect info ).

From The Supreme Court of Virginia: "[L]ast clear chance does not supersede contributory negligence. A negligent plaintiff may recover only if his negligence was a remote [255 Va. 277] rather than a proximate cause of the accident. If the opportunity to avoid the accident is as available to a plaintiff as to a defendant, then the plaintiff's negligence is a proximate cause rather than a remote cause, and bars recovery. Cook v. Shoulder, 200 Va. 281, 285-86, 105 S.E.2d 860, 863 (1958)." Williams v. Harrison, 497 S.E.2d 467, 255 Va. 272 (Va., 1998).

Did you really think that I just made this stuff up? LOL.

And, who says your quoted reference applies to the original poster's sister's death. Were you the truck driver?

The OP has the right to consult with an attorney who can review the true events and opine as to whether or not contributory neglgience exists at all and, or whether it negates any possible recovery or is able to be defended by the last clear chance doctorine.

EC

[ForFun]

Originally Posted by ellencee

And, who says your quoted reference applies to the original poster's sister's death. Were you the truck driver?

The OP has the right to consult with an attorney who can review the true events and opine as to whether or not contributory neglgience exists at all and, or whether it negates any possible recovery or is able to be defended by the last clear chance doctorine.

EC

You're not a careful reader.

ForFun: "If the opportunity to avoid the accident was as available to your sister as to the truck diver, then your sister's negligence was a proximate cause and she (you) cannot recover."

I don't see anything above indicating that I have a crystal ball and have conclusively determined that the OP's sister was the proximate cause of the accident, do you? The OP's question was with regard to Virginia's law, and my post was clearly meant to explain Virginia's law. I've made no judgments about the facts at all.

Further, your poorly researched response to me was obviously a challenge of the law, not the facts. Remember this quote: "Not according to the law."

[mommyof4]

Originally Posted by ellencee

And, who says your quoted reference applies to the original poster's sister's death. Were you the truck driver?

The OP has the right to consult with an attorney who can review the true events and opine as to whether or not contributory neglgience exists at all and, or whether it negates any possible recovery or is able to be defended by the last clear chance doctorine.

EC

The OP HAS consulted with an atty, who told her the exact same thing that ForFun told her. Reread the original post. She just wanted a second opinion and confirmation of the atty's statement.

OP: I am sorry for your loss. The atty was correct, as was the confirmation given by ForFun.

[ForFun]

Hahahaha...I guess *somebody* must have cried to management about my post so that it would be temporarily removed.

No worries...here it is again for all to see...

Originally Posted by ellencee

And, who says your quoted reference applies to the original poster's sister's death. Were you the truck driver?

The OP has the right to consult with an attorney who can review the true events and opine as to whether or not contributory neglgience exists at all and, or whether it negates any possible recovery or is able to be defended by the last clear chance doctorine.

EC

You're not a careful reader, are you? I noticed in the granny thread that you're not very good with the word "if", and now here we are again...

ForFun: "If the opportunity to avoid the accident was as available to your sister as to the truck diver, then your sister's negligence was a proximate cause and she (you) cannot recover."

I don't see anything above indicating that I have a crystal ball and have conclusively determined that the OP's sister was the proximate cause of the accident, do you? The OP's question was with regard to Virginia's law, and my post was clearly meant to explain Virginia's law. I've made no judgments about the facts at all.

Further, your poorly researched response to me was obviously a challenge of the law, not the facts. Remember this quote: "Not according to the law."

I'm getting tired of slapping you around. Take a break, will ya? Geez...