Virginia Speeding Ticket Traffic Lawyers Reckless Driving DUI Misdemeanor Killed While Driving

Joyce L. Arndt, Administratrix of The Estate of Edward George Strike

, Deceased v. Steven Michael Russillo, A Minor

Supreme Court of Virginia

April 25, 1986

Issue:

Whether was contributorailly negligent or whether the jury believed he assumed the risk?

Observation and Holding:

Defendant's (Russillo) theory of decedent's (Strike) contributory negligence or assumption of risk is atypical. In one version of the usual case, the driver of the car contends that the injured passenger either knew or should have known that the driver had been drinking and that the driver's ability to drive was impaired, yet the passenger entered the car or continued to ride in the car despite an opportunity to get out. In this appeal, there is no claim that Russillo was impaired by alcohol or that Strike knew or should have known that Russillo was driving while impaired. Here, Strike's contributory negligence or assumption of the risk is said to arise from the episodes of braking, skidding, and speeding that immediately preceded the fatal crash. Though there is no evidence as to who was driving on the first two passes, the contention is that Strike either established a pattern of reckless driving that was continued by Russillo or that Strike urged Russillo to drive recklessly. By this approach, Russillo contends that it makes no difference whether Strike was driving or riding as a passenger on the two passes that preceded the collision. However, in our opinion, it makes a great deal of difference as to who was driving. In order to make out the defense of assumption of risk, Russillo would have to prove that Strike knew Russillo would drive recklessly, yet Strike voluntarily remained in the car even though he had an opportunity to get out. The clearest example of this defense would be proof that Russillo was driving on the first two episodes of braking, skidding, and speeding away. Then, after those two episodes of reckless driving, Russillo pulled into the dirt parking lot and the boys got out to relieve themselves. At that point, if Strike got back into the car as a passenger, with Russillo driving, and the accident occurred, then a jury could reasonably believe that Strike knew Russillo would again drive recklessly yet Strike voluntarily stayed in the car despite an opportunity to get out. However, the facts do not support this approach because, according to Russillo, Strike was driving up to the point that the boys pulled into the dirt parking lot. It was only afterwards that Russillo started driving and then the accident occurred. There is no way for the trier of fact to determine whether Strike gave the keys to Russillo because Strike knew that he himself was not driving safely and that Russillo would be the safer driver or whether Strike gave the keys to Russillo so that Russillo could have a chance at braking, skidding, and speeding away. Nor did Russillo prove the defense of contributory negligence. To establish that defense, Russillo was required to prove that Strike knew or should have known that Russillo would drive recklessly when he drove from the parking lot. He had to establish that Strike carelessly remained in the car of a reckless driver even though he had an opportunity to get out.

In light of all the foregoing, the judgment in favor of defendant will be reversed and the case remanded for further proceedings consistent with this opinion.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

Virginia Speeding Ticket Traffic Lawyers Reckless Driving DUI Misdemeanor Killed While Driving

By: Atchuthan Sriskandarajah

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