According to the police report, the driver claimed the girl ran into the roadway. The driver stated that she swerved to avoid the child, but the girl moved back into the vehicle’s path.
The child’s account differed. She reported seeing the approaching car and attempting to return to the sidewalk before being struck.
Managing partner C. Arthur “Brother” Rutter III questioned the driver’s version of events and raised an important point about Virginia’s contributory negligence laws:
“If the driver swerved, how fast was she really going? Why couldn’t she stop?” Brother asked. “The reasonable presumption would be that a twelve-year-old can not be contributorily negligent!”
Under Virginia law, children between the ages of 7 and 14 are generally presumed incapable of contributory negligence. Although that presumption can be challenged, it presents an important consideration when a driver attempts to shift responsibility for an accident onto a child.
With no available traffic camera footage of the collision, Rutter Mills investigated the conflicting accounts, obtained police and emergency medical records, searched for nearby surveillance footage, and located a witness.
The accident also raised concerns among nearby residents, interviewed for local news coverage:
“Definitely scary,” said Robert Fogle, who lives nearby. “I have my daughter inside. So, it’s just kind of scary with the drivers around here, in Virginia in general.”
The driver was operating a rental vehicle, creating additional questions about which insurance coverage applied.
Rutter Mills initially encountered difficulty identifying the rental vehicle’s insurance arrangements and obtaining information about available policy limits.
The legal team continued investigating and eventually identified another source of liability coverage through the driver’s personal automobile insurance policy.
