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Brandon S. Osterbind, a lawyer at Overbey, Hawkins & Wright, settled a wrongful death/tractor trailer/pedestrian accident for $500,000. Brandon represented the family of a man who was fatally injured by a tractor trailer at a truck stop in Shenandoah County.
In this case, a 68 year old man was walking out of a truck gas station in Shenandoah County one evening after parking his truck and purchasing food from the convenience store. It was dark outside and raining, but the parking lot was well lit. The pedestrian was wearing blue jeans and dark shirt. The Defendant was driving a commercial tractor trailer in the parking lot of the gas station when he made a right hand turn around the rear of the gas station and, according to the Virginia State Trooper, he struck the pedestrian in the rear with the driver side stairs leading up to his truck. Defendant told the Trooper that he heard a thump and stopped. He also told the Trooper that he never saw the pedestrian.
There were no eye witnesses to the collision and the Defendant disputed liability. Because the Defendant said he never saw the pedestrian, no one really saw the collision. In Virginia, the Plaintiff has the burden of proving how the accident happened. Ragland v. Rutledge, 234Va. 216, 220, 361 S.E.2d 133 (1987). The Plaintiff can prove how the accident happened through direct or circumstantial evidence. Eye witness testimony would be considered direct evidence. Eye witness testimony is not always required, although it is most certainly helpful and preferred. Other evidence, like the location of the truck, the pedestrian, the type of injury and the timing of the collision, would be considered circumstantial evidence.
When a person involved in an accident dies from that accident, the law presumes that that person exercised reasonable care in crossing the parking lot unless an independent witness saw otherwise.
“[A] defendant who relies on contributory negligence as a defense has the burden of proving that it existed and that it was a proximate cause of the accident. As a corollary to this rule, it has also long been accepted universally that in a wrongful death action, in the absence of eyewitnesses testimony or other evidence to the contrary, it will be presumed that the deceased acted with ordinary care. This well settled principle derives from the recognition that, death having silenced the decedent from testifying in his own behalf, the defendant should not benefit from being able to assert that the decedent was negligent in the absence of other evidence to support that assertion.”
Hot Shot Express, Inc. v. Brooks, 264 Va. 126, 136, 563 S.E.2d 764 (2002) (emphasis added) (citing Elliot v. Lewis, 207 Va. 361, 265, 150 S.E.2d 129, 131 (1966); Charlottesville Music Cen. v. McCray, 215 Va. 31, 37, 205 S.E.2d 674, 679 (1974); Hagan v. Hicks, 209 Va. 499, 505, 165 S.E.2d 421, 426 (1969); Looney v. Metropolitan Railroad Co, 200 U.S. 480, 488 (1906); and Richards v. Southern Pacific Transp., 666 F.2d 99, 109 (5th Cir. 1982) (Tate, J. dissenting)).
In wrongful death cases, the wife and children of the deceased are entitled to damages for “sorrow, mental anguish and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent; expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; reasonable funeral expenses; and punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.” Code § 8.01-52.
Brandon and his clients agreed to submit to nonbinding mediation with Judge Bruce Bach who works with the McCammon Group, a well-recognized group of mediation professionals. After a long day of mediation, the parties agreed to settle for $500,000.