graemebryson—February 7, 2022
On June 27, 2018, the Plaintiff riding his bicycle on a shared-use path eastbound along Dam Neck Road approaching London Bridge Road in the City of Virginia Beach, Virginia where he attempted to cross the roadway in a marked crosswalk and was struck by a vehicle operated by Defendant Brittain. Plaintiff admitted to not stopping before entering the crosswalk and that he recognized entering the crosswalk was a hazardous and dangerous situation. Plaintiff testified he was looking for oncoming traffic to his left but that overgrown vegetation on the side of the shared-use path obstructed his view of oncoming traffic until he was in the crosswalk. The Plaintiff was transported to Sentara Virginia Beach General Hospital, where he was treated for his injuries including grade 2 open left distal tibia and fibula intra-articular. Plaintiff underwent an external fixation of his left lower extremity followed by an open reduction internal fixation of the same extremity. Plaintiff’s wound developed an infection that required a debridement. Later, Plaintiff experienced a non-union of his left lower extremity resulting in a hardware removal and replacement operation. Plaintiff’s experts did not project future surgery or related medical treatment and opined that he had a remarkable recovery in light of the severity of his injury.
The Plaintiff asserted that Defendant Brittain failed to keep her vehicle under proper control, failed to yield to a cyclist in a crosswalk, and failed to keep a proper lookout. Plaintiff took the deposition of Defendant Brittain early in the matter wherein she testified that the overgrown vegetation adjacent to the roadway blocked her view of Plaintiff before he entered the crosswalk and blocked her view of a yield sign. Plaintiff and Defendant Brittain agreed to a settlement and covenant not to sue for her policy limits of $50,000, and dismissed her from the action. Plaintiff then resolved his claim against his UIM carrier for an additional $50,000.
Plaintiff’s action continued against the City of Virginia Beach under theories of negligent maintenance of the shared-use path and adjacent vegetation obstructing Plaintiff’s sight line of Defendant Brittain’s oncoming vehicle. Plaintiff retained Christian Englemann, a civil and traffic engineer, to inspect the subject intersection and crosswalk to provide opinions regarding the industry standards in roadway design and maintenance of sight lines to provide motorists, bicyclists, and pedestrians adequate sight lines of others on the roadway. Mr. Englemann opined that the maintenance of the subject intersection resulted in a grossly deficient sight distance for bicyclists entering the crosswalk and, as a result, the crosswalk wherein Plaintiff was struck was an unreasonably dangerous condition on the roadway. Joel Koci, an ISA certified arborist, inspected the vegetation adjacent to the roadway and shared-use path leading up to the crosswalk and opined that that vegetation was negligently maintained. Koci opined that the vegetation at issue was in a substantially similar condition for months if not years providing adequate notice to the City of the sight line obstruction. Koci further opined that the vegetation at issue sprout in the spring around March or April thus, at a minimum, the City was on notice of the dangerous condition created by a sight line obstruction several months before the subject incident occurred in June. Matthew Dwyer performed a scan of the subject intersection to provide accurate measurements to Englemann to appropriately calculate sight lines and stopping distances.
The City of Virginia Beach admitted to being responsible for the maintenance at the subject intersection and to owning the property where the subject vegetation was located. The City denied any negligence and asserted it properly maintained the vegetation because it did not intrude onto the roadway or onto the shared-use path. The Plaintiff deposed City inspectors who testified they inspected the subject location yearly in the years leading up to the incident but that a transition in the department meant that no inspection was performed the year of the subject incident.
The City retained Stephen Chewning who opined that, had the Plaintiff stopped, the subject motor vehicle collision would not have occurred. Chewning further opined that the Plaintiff and Defendant Brittain had ample sight distance to see, react, and respond to each other had they been paying proper attention based upon the Virginia Code’s table of vehicle speeds and stopping distances.
Plaintiff and the City of Virginia Beach settled for $950,000 weeks before trial. At the time of settlement, Plaintiff had filed a motion to limit the testimony of Chewning at trial and exclude him entirely asserting his opinions were not based in fact.
By Courtney Sweasy