Furr v. Al-Saray
| Decision Date | 16 May 2023 |
| Docket Number | 0198-22-4 |
| Parties | SHARON ELIZABETH FURR v. TAMARA AL-SARAY |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY James A Willett,[1] Judge.
Julie S. Palmer (Frank E. Hudson, III; David W. Drash; Harman Claytor, Corrigan &Wellman, PC; Tuemer &Drash, on briefs), for appellant.
Douglas B. Wessel (Stephen M. Terpak; Sutter &Terpak PLLC, on brief), for appellee.
Present: Judges Humphreys, Huff and AtLee Argued by videoconference.
Following trial in the Prince William County Circuit Court (the "trial court"), a jury found Sharon Furr ("appellant") liable for negligence in connection with a 2014 motor vehicle accident between appellant's car and another car in which the plaintiff, Tamara Al-Saray ("appellee") was a passenger. Appellant raises thirteen assignments of error on appeal, the first of which this Court finds dispositive of the entire case. As her primary argument, appellant asserts that the trial court erred in denying her motion to strike because appellee's evidence was insufficient to establish a prima facie case of negligence. Specifically, she argues that appellee did not present evidence establishing that appellant's breach of duty was a proximate cause of the car crash. For the reasons below, this Court agrees and finds that the insufficient evidence of causation warrants reversal of the trial court's judgment.
On November 10, 2014, at approximately 4:30 p.m., appellant's vehicle crashed into another vehicle driven by Janaia Spurlock ("Spurlock") at the intersection of Wellington Road and Market Place Avenue in Prince William County, Virginia. Wellington Road is a four-lane divided highway with two lanes of traffic in each direction-east and west-and the road slopes slightly uphill as one approaches the intersection with Market Place Avenue from the west. At the time of the accident, the traffic signal at the intersection was a solid green light for vehicles traveling east and west along Wellington Road.
Prior to the collision, appellant was traveling westbound in the right-hand thru lane on Wellington Road at approximately 45 miles per hour, the posted speed limit. Spurlock was traveling eastbound on Wellington Road and attempted to enter the shopping center on Market Place Avenue by making a left-hand turn across appellant's westbound lane of travel. The day was bright and the weather clear. As appellant approached the intersection she was looking straight ahead and had an unobstructed view of approximately 300 to 400 feet in front of her. Nevertheless, appellant claims she did not see anything in her path until she saw a "white blur" just before colliding with Spurlock's vehicle in the middle of the intersection.
When the two cars collided, the front of appellant's car struck the rear passenger-side door on the right-hand side of Spurlock's vehicle-where appellee was seated. Both Spurlock and appellee were 16 years old at the time of the accident. After impact, appellant's vehicle came to rest on the sidewalk just past the intersection, and Spurlock's car was facing east with its rear up against a light pole and its front in the intersection. Appellee sustained significant physical and neurological injuries as a result of the collision.
Nearly four years later, on March 29, 2018, appellee filed suit against both Spurlock and appellant, seeking compensatory damages for the injuries she sustained in the 2014 crash. Appellee alleged that both defendants were "jointly and severally" liable to her for their combined negligence. However, on October 8, 2021-only five days before trial commenced on October 13, 2021-the trial court granted appellee's motion to nonsuit Spurlock from the case and the trial court granted her motion to amend the case caption with appellant as the sole defendant.
Subsequently, appellee presented extensive evidence during trial to demonstrate that appellant needed to wear her reading glasses to see properly while driving and that she was not, by her own admission, wearing them on the day of accident.[3] Appellee presented no evidence about Spurlock's actions leading up to the crash.
During pre-trial discovery, appellant filed a motion for a Rule 4:10 neuropsychology exam of appellee to be conducted by Dr. Gary Kay.[4] The trial court granted appellant's request on February 4, 2021, but included in the order a provision granting appellee's request to record the exam. Dr. Kay refused to comply with that provision and did not conduct the exam.
On March 2, 2021, appellant filed a motion for reconsideration in which she asked the trial court to order a second Rule 4:10 exam, this time by Dr. Jeffrey Wilken. The trial court granted appellant's request on March 29, 2021, and removed the mandatory recording provision from that second order. However, in an attempt to prevent any further issues, the trial court required appellant to confirm Dr. Wilken's review of the order and his willingness to abide by its terms. In particular, the trial court ordered appellee to "submit to an examination by Dr. Jeffrey A. Wilken," but made clear that no "substitute examiner" could conduct the exam unless appellant first received permission from the court or both parties mutually agreed to the alternate examiner. Dr. Wilken provided his written assent to those terms.
Both parties agreed that Dr. Wilken would conduct the exam on June 22, 2021. On that date, appellee arrived timely at the exam location with her attorney around 8:45 a.m. Dr. Wilken, however, was not present and instead sent an associate, Dr. Catherine Bergmann, who informed appellee that she would conduct the first part of the exam and Dr. Wilken would arrive at 11:30 a.m. to conduct the latter half of the examination. Based on this new information, appellee left the exam location after approximately thirty minutes and informed the trial court that Dr. Wilken had violated the court's order.
The parties cross-moved for sanctions, and the trial court granted sanctions in favor of appellee for Dr. Wilken's violation of the court's order that he be the one to conduct the examination. Pursuant to that determination, the trial court ruled that Dr. Wilken would not be allowed to testify as to why he had not conducted an examination. The court then ruled that it would not grant appellant's motion to exclude appellee's evidence of a traumatic brain injury and would not grant a continuance or issue a third order for a Rule 4:10 exam.
At a subsequent hearing, the trial court made several rulings regarding the admissibility of proffered testimony by appellant's expert witnesses. Regarding Dr. Falconer, the trial court prohibited testimony that appellee might have suffered from a "second-hit phenomenon" or that her brain injury could have been caused by a subsequent accident. Similarly, the trial court excluded testimony by Dr. Wilken that the delays in the presentation of appellee's symptoms might be consistent with a different cause, other than the 2014 wreck.
In making those admissibility determinations, the trial court relied on the expert disclosures appellant provided. Based on the language Dr. Falconer and Dr. Wilken used in their reports, the trial court concluded that their opinions were not made to a reasonable degree of medical probability and were thus too speculative for the jury to consider.
After the trial court entered the nonsuit order for Spurlock on October 8, 2021, it ruled that appellant could not offer any evidence that Spurlock had pled guilty to failing to yield in connection with the 2014 accident. Despite appellant's arguments to the contrary, the trial court ruled that any testimony about Spurlock's plea was inadmissible hearsay and there was no other basis for admission of such evidence. The court gave multiple reasons for this ruling, including that Spurlock was no longer a party opponent, the police officer who ticketed Spurlock in 2014 had no independent recollection of the accident or Spurlock's plea, Spurlock denied in her deposition to having been issued a ticket or pleading guilty, and all records of Spurlock's plea were sealed because she was a juvenile. Notwithstanding that ruling, appellant still announced her intention to subpoena Spurlock to testify at trial.
Trial commenced on October 13, 2021. Appellee introduced portions of appellant's deposition testimony at trial, as well as in-person testimony from several witnesses; but neither appellee, appellant, nor Spurlock testified in the trial court.[5] In fact, the only other witness who was present at the scene of the accident-Greg Burke ("Burke")-did not see the moment appellant's and Spurlock's vehicles collided.
Burke testified that he had been driving westbound on Wellington Avenue in the right-hand thru lane at approximately 4:30 p.m on November 10, 2014. When he reached the intersection at Market Place Avenue, he had a solid green traffic light and he moved into the right-hand turn lane so he could turn into the shopping center on his right. As he did so, he saw Spurlock's vehicle in the eastbound left-hand turn lane on Wellington Road. He described her as having [6] He did not see appellant's vehicle in the right thru lane behind him.
When Burke started making his right-hand turn, he saw that Spurlock's car "was at a hesitation or barely creeping at that point." Approximately four seconds after he started making that turn, Burke heard the crash of appellant's and Spurlock's vehicles colliding, but he did not see the moment of impact which had occurred behind him. He did not hear any horns honking or...
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