A deadly crash in the Arrowhead section of Virginia Beach, VA, highlights the dangers drunk drivers pose even during sunny workday afternoons. The fatal collision at the intersection of Princess Anne Road and Comanche Road also shines a light on an unfair legal rule that often prevents families of deceased crash victims from holding negligent and reckless drivers financial accountable for the incalculable losses they inflicted.
According to a Tuesday, Feb. 9, 2021, report by WAVY-TV 10, a driver hit a bicyclist at about 3:10 pm earlier that same day. The bike rider initially survived and was taken to Sentara Norfolk General Hospital. Family members of the bicyclist who was publicly identified as 68-year-old Paul Mozley said he sustained severe traumatic brain injuries and several broken bones.
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The driver involved in the crash, identified as a 38-year-old Norfolk resident, remained on the scene and spoke with police. An article in the Virginian-Pilot notes that law enforcement officials found an open beer can in the man’s car and a case of beer behind the driver’s seat. One officer also said the driver smelled “slightly” of alcohol and was slurring his speech.
The bike rider died in the hospital on February 24. The driver currently faces charges for driving under the influence of alcohol, refusing a breath test and drinking in public. Additional charges may be filed following the death of the person he hit.
Floating an ‘I Never Even Saw …’ Defense
News reports state that the driver had a green light when he entered the intersection. According to the newspaper, the driver also told police that the bike rider “crossed in front of him” unexpectedly and that “there is no way I could have seen this guy. He just came out.”
A full investigation will be required to conform any details shared by the driver. What can be said at this point is that a majority of drivers who hit and injure or kill pedestrians and bike riders claim they did not see their crash victim. The truth of the matter is that few drivers make an effort to watch out for and yield to anything but other cars and trucks.
Drivers also neglect to ensure walkers and bike riders have cleared an intersection before reacting immediately to their stop light turning green. Making these common errors behind the wheel will only become more likely after drinking several beers.
Shifting Blame to the Victim
Two principles embedded in Virginia state law may make it impossible to succeed with a wrongful death claim regardless of whether evidence shows that the driver was most at fault for causing the fatal collision on Princess Anne Road. First, bicycles are treated a vehicles.
This classification allows bike riders to use roads. It also gives bicyclists legal duties to obey all the same traffic rules as drivers. Bike riders must stop for red lights, for instance.
Second, Virginia (along with North Carolina) is one of just four states that still follows a pure contributory negligence rule. As applied to the deadly Virginia Beach bike crash, the contributory negligence rule would prevent recovery on a wrongful death claim if evidence showed that the rider ran the light at the intersection. It would not matter if the driver was also shown to be so intoxicated that he could not react appropriately to unexpected traffic situations.
My Virginia Beach-based wrongful death law firm colleagues and I have argued for decades that the state should switch to the comparative negligence rule. This is much more just and reality-based. While challenges to accusations of contributory negligence can prevail, no assumption of a victim’s fault should exist in the first place.