Carson by Meredith v. LeBlanc

• Decision Date: 26 February 1993
• Docket Number: No. 920696,920696
• Citation: 427 S.E.2d 189,245 Va. 135
• Parties: Trisha Queen CARSON, by Her Mother and Next Friend, Patricia C. MEREDITH, v. Linda F. LeBLANC. Record
• Court: Virginia Supreme Court

Page 189

427 S.E.2d 189

245 Va. 135

Trisha Queen CARSON, by Her Mother and Next Friend, Patricia C. MEREDITH, v. Linda F. LeBLANC.

Record No. 920696.

Supreme Court of Virginia.

Feb. 26, 1993.

Thomas L. Phillips, Jr., Rustburg (Phillips, Phillips, Phillips & Morrison, on brief), for appellant.

Henry M. Sackett, III, Lynchburg (James O. Watts, IV, Edmunds & Williams, on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

In this negligence action arising from injuries received by a minor pedestrian who ran into the side of a moving automobile, the sole question presented is whether the trial court erred in holding that the plaintiff was guilty of contributory negligence as a matter of law.

The appellate record is presented in an unusual procedural posture. There has been no trial; the trial court granted defendant's motion for summary judgment at the pleading stage of the case. The facts upon which the trial court relied were developed from the plaintiff's responses to the defendant's requests for admissions. Many of the requests for admissions were based, in part, upon discovery depositions taken of eyewitnesses to the accident; the requests specifically referred to deposition testimony and posed requests employing that testimony. The following is typical of that technique. Request: "That the witness, Sherri Hall, has testified in her deposition that she looked to her right from the point at which she was stopped approximately on the double solid yellow line and saw more than one vehicle approaching in the right hand westbound lane." Response: "Admitted."

Code § 8.01-420 provides: "No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the suit or action shall agree that such deposition may be so used." Accord Rule 3:18; Rule 4:7(e). In our discovery rules, we have cautioned that discovery ordinarily should not supplant the taking of evidence at a trial; this is especially true in automobile accident cases. Rule 4:0(b) provides, as pertinent: "No provision of any of the Rules in this Part Four shall affect the practice of taking evidence at trial in any action; but such practice, including that of generally taking evidence ore tenus in actions at law ... shall continue unaffected hereby."

In the present case, the plaintiff did not object to the use of the discovery depositions as a basis for the trial court's action on the motion for summary judgment nor is there an assignment of error challenging this prohibited procedural tactic. Accordingly, we have no alternative but to address the substantive issue on appeal, based on the facts as disclosed by the record that we have been furnished.

These facts are virtually uncontradicted. The accident in question occurred on Thursday, October 8, 1987 at 3:20 p.m. on Langhorne Road in the City of Lynchburg. The day was clear and the street was dry. At the scene, Langhorne Road is a two-way, four-lane, east-west street. There are two eastbound and two westbound lanes separated by a double solid yellow line. The eastbound and westbound lanes each are divided by single white broken lines. The record is silent on the speed limit at the scene.

The plaintiff, Trisha Queen Carson, age 15, was crossing Langhorne Road from the south to the north side with two companions, travelling on foot from a nearby school to a convenience store. The trio was crossing at a point approximately 240 feet west of the intersection of Langhorne Road with Tate Springs Road. The plaintiff was not crossing at an intersection, in a marked pedestrian cross-walk, at a traffic light, or in the lateral prolongation of sidewalk lines.

The plaintiff and her companions crossed the two eastbound lanes of Langhorne Road and stopped approximately on the double solid yellow line. They were standing side by side with Sherri Hall to the east, Karla Jennings in the middle, and the plaintiff on the west side. A westbound vehicle, the driver of which was sued as "Jane Doe," stopped in the left hand westbound lane approximately 10 feet from where the plaintiff was standing. The Doe vehicle did not obstruct the plaintiff's view of westbound traffic in either of the westbound lanes.

The plaintiff recalls starting to cross the left hand westbound lane of Langhorne Road in front of the Doe vehicle, but does not recall completing her crossing of that lane or her collision with the vehicle operated by defendant Linda F. LeBlanc. That vehicle was being driven in a westerly direction in the right hand westbound lane at a speed not revealed by the record.

As the plaintiff started across the left hand westbound lane, she looked to her right and saw no traffic approaching in the right hand westbound lane. When she looked to her right, she saw two vehicles stopped behind the Doe vehicle in the left hand westbound lane and one or two other vehicles travelling westbound in the left hand westbound lane at a distance from her that is not revealed by the record.

Because of a head injury sustained in the accident, the plaintiff has no memory whether she saw the defendant LeBlanc's vehicle or any westbound vehicle in the right hand westbound lane before the accident occurred. LeBlanc's vehicle, a 1984 Oldsmobile, had been travelling continuously in the right hand westbound lane for 300 feet leading up to the point where the accident occurred.

The plaintiff's companions testified on deposition that they each looked to the right from where they were standing on the double solid yellow line and saw more than one vehicle approaching in the right hand westbound lane; they decided to stay where they were and not to attempt to cross further. Jennings testified in her deposition that one of the vehicles she saw approaching in the right hand westbound lane was the vehicle that struck the plaintiff.

The plaintiff admitted that she "has no evidence to contradict the testimony of other witnesses that she attempted to run across the right hand westbound lane" just before the accident happened. The point of initial impact between the plaintiff's body and the defendant LeBlanc's vehicle was on the left front fender of the vehicle; no portion of the front of the vehicle struck the plaintiff.

Apparently, there were at least three other witnesses to the accident; they were in vehicles being driven in a westerly direction in the right hand westbound lane at the time the plaintiff attempted to cross that lane. The plaintiff admitted that she had "no reason to believe" that the testimony of all five eyewitnesses at the trial of the case "will be substantially different from that contained" in their respective discovery depositions. She also admitted that her testimony at trial relating to the issue of liability "will be substantially the same as that contained" in her discovery deposition.

The plaintiff sued Doe and LeBlanc seeking recovery in damages for her personal injuries. Following discovery, the trial court granted not only LeBlanc's motion for summary...