Category Archives: Negligence

New anti-texting legislation to take effect in West Virginia

The new texting-while-driving legislation which was passed in West Virginia is set to take effect on Friday, June 8, 2012.  West Virginia is now the 41st state banning texting-while-driving.

However, the law does not apply just to texting, but also to talking on the cell phone.  On June 8 texting or using a hand-held cell phone becomes a secondary offense – meaning that cops are not supposed to pull you over just for that offense, but they can ticket you for that offense if they pull you over for some other reason.  On July 1, 2012 it becomes a primary offense.

At this point it is important to make sure new vehicles you buy are equipped with bluetooth hands-free cellular technology.  If not, you will want to buy a bluetooth headset if you must talk on your cell phone while driving.


I Was a Passenger in a Car Accident, Can I Sue The Driver?

This is a common question for many car accident victims. The answer, in West Virginia anyways, is yes – if the driver was negligent. The driver of the car owes a duty to any passengers in the vehicle, a duty not to drive negligently or recklessly. If the driver breaches that duty and ends up crashing the vehicle, either in a single vehicle accident or with another car, then he or she is liable to any passengers, as well as occupants of the other vehicle. This means that the driver’s insurance will be liable for any personal injuries sustained up to the policy limits.

There are other issue however, that need to be examined thoroughly by a West Virginia car accident attorney, such as: are there any other insurance polices that could provide coverage, such as the passenger’s vehicle insurance or underinsured driver’s coverage? Another concern is that if there have been several people injured, there may be insufficient coverage for all of the injured persons. Each situation must be examined individually and will bring unique issues, all of which should be quickly addressed by a West Virginia car accident lawyer.

– John H. Bryan, West Virginia Car Accident Attorney.

Importance of Seat Belts in WV Car Accident Law

West Virginia, like almost every other state, has a mandatory seat belt law. Thus, there is a limited “seat belt defense” which means if you are injured in a car crash while not wearing a seat belt, and the injury was caused or made worse due to the lack of a seat belt, the amount of damages you can collect may be reduced.

In other words, you are “comparatively negligent” and therefore are partially responsible for causing your own injuries, even if you were not responsible for the accident itself. It is important to consult an experienced auto accident attorney for advice regarding your particular situation.

– John H. Bryan, West Virginia Car Accident Attorney.

Causes of West Virginia Truck Accidents

According to the Federal Motor Carry Safety Administration’s 2006 report, there are approximately 141,000 truck crashes every year. In more than half of those, the accident was the truck driver’s fault. The FMCA report further broke that figure down into percentage categories.

According to the FMCA 2006 report, the top 10 causes of truck accidents where the truck driver is a fault:

1. Prescription drug use (26%)

2. Traveling too fast (23%)

3. Unfamiliar with the roadway (22%)

4. Over the counter drug use (18%)

5. Inadequate surveillance 14%)

6. Fatigue (13%)

7. Illegal maneuver (9%)

8. Exterior distraction (9%)

9. Inadequate evasive action (7%)

10. Aggressive driving (7%)

Although I don’t have the figures for West Virginia truck accidents specifically, statistically it shouldn’t be that much different. However, I would guess that traveling too fast and being unfamiliar with the roadway would play an even larger role in West Virginia truck accidents, since the roads are so steep, windy, and narrow.

– John H. Bryan, West Virginia Car Accident Attorney.

WV Car Accident Law Regarding Pedestrians

Unfortunately, there have been many accidents in WV lately involving pedestrians who have been seriously injured or killed. It is important to look at what WV law actually says about situations where pedestrians are struck by cars and suffer personal injuries or death. What better way to look at this than to examine jury instructions that are actually given to juries considering these issues. Following you will find proposed jury instructions that instruct jurors in personal injury cases as to WV law regarding pedestrians. These jury instructions were provided by the State of West Virginia, and can be found here.

Pedestrians Crossing Highway Other Than Crosswalks

Every pedestrian crossing a roadway, at a point other than a marked crosswalk, shall yield the right-of-way to all vehicles upon the roadway. Nevertheless, every driver of an automobile shall exercise due care to avoid colliding with any pedestrian so crossing upon any roadway and shall give warning by sounding the horn when necessary.

Statutes: 17c-1O-3; 17c-1O-4
Caselaw: Kretzer v.Moses Pontiac Sales, Inc., 201 S.E.2d 275

Pedestrians Crossing Highway Within a Crosswalk

When traffic control signals are not in place or not in operation at a crosswalk, the driver of a motor vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the motor vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger. Every driver of a motor vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary.

However, no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a motor vehicle which is so close that it is impossible for the driver to yield.

Statutes: 17c-1O-2; 17c-1O-4

General Instruction Concerning Duty of Driver to Pedestrian

Every driver of a motor vehicle shall exercise due care to avoid colliding with a pedestrian upon any roadway and shall give warning by sounding the horn when necessary.

Statute: 17c-10-4

Duty of Driver to Child, Confused or Incapacitated Person Upon the Roadway

Every driver of a motor vehicle shall exercise due care to avoid colliding with a pedestrian upon any roadway and shall give warning by sounding the horn when necessary. In addition, the driver of a motor vehicle shall exercise proper precaution upon observing any child, or any confused, or any incapacitated person upon the roadway.

Statute: 17c-10-4

Passing a Vehicle Stopped at a Cross Walk When a Pedestrian is Present

Whenever any vehicle is stopped at a marked crosswalk, or at any unmarked crosswalk at an intersection to allow a pedestrian to cross the roadway, the driver of any other vehicle approaching the stopped vehicle from the rear shall not overtake and pass such stopped vehicle.

Statute: 17c- 1O-2b

Lastly, regarding these statutes, violation of a statute by a driver itself is prima facie evidence of negligence. Thus, usually the following jury instruction is given regarding violation of a statute:

Violation of a Statute Instruction

Prima fade evidence of negligence is evidence that is sufficient in and of itself to establish a given fact. In other words, if you find that the defendant violated any of the statutes regarding the operation of motor vehicles in the State of West Virginia, then the establishment of that fact is in and of itself sufficient to establish negligence on the part of the defendant.

For the defendant to overcome this evidence, the defendant must present evidence himself that said negligence was not a proximate cause of the plaintiffs injuries and damages.

Caselaw: White v. Lock 332 SE. 2d 240 (W Va. 1985).

– John H. Bryan, West Virginia Car Accident Attorney

Squirrel Blamed For Accident

from the Martinsburg Journal:

Squirrel blamed for accident
Couple struck head-on after woman swerves to avoid animal

By EDWARD MARSHALL / Journal Staff Writer

HAGERSTOWN — A Maryland woman who swerved to avoid hitting a squirrel Saturday in Hagerstown struck a car head-on that was carrying a Martinsburg couple.

Philip N. Kisner, 50, and his wife, 50-year-old Karen Lynn Kisner, of Martinsburg, were both wearing seatbelts at the time of the accident.

Philip Kisner refused medical treatment while his wife was transported to Washington County Hospital with nonlife-threatening injuries, police said.

The driver of the other vehicle, 32-year-old Amy Deosaran, of Middletown, Md., and her 9-year-old son, who was in a child safety restraint in the backseat, were also taken to Washington County Hospital with nonlife-threatening injures.

According to police, the accident happened at 1:47 p.m. on Alternate U.S. 40 near Moser Road when Deosaran, who was driving east in a 2002 Acura MDX, swerved to avoid a squirrel in the roadway and collided head-on with an oncoming 1995 Toyota Tacoma driven by Philip Kisner.

Maryland state troopers from Hagerstown state police barracks responded to the accident.

Deosaran was charged with failure to drive right of center. The Boonsboro Police Department and Washington County Sheriff’s Department assisted with the investigation.

According to police, the squirrel that caused the accident later attempted to cross U.S. 40 again and was eventually struck by a vehicle. It was pronounced deceased at the scene, police said.

— Staff writer Edward Marshall can be reached at (304) 263-8931, ext. 215, or

Dump Truck Flips, Kills Man

Also from the Wheeling Intelligencer:

Dump Truck Flips, Bethesda Man Dead
POSTED: March 28, 2008 Save | Print | Email | Read comments | Post a comment
Article Photos


Photo by William Daniel
Members of the Wheeling Police and Fire departments survey the scene of a fatal accident that occurred this morning on Evelyn Avenue. The driver, a Bethesda man, died at the scene when the truck crashed into a utility pole.

WHEELING — A Bethesda man died at about 8 a.m. today after the tandem dump truck he was driving crashed on Evelyn Avenue in Elm Grove.

According to Wheeling Police Sgt. William Goldbaugh, the truck carrying limestone hit a telephone pole then flipped over on its side on Evelyn Avenue. The driver, who had to be extricated from the cab by Wheeling Fire Department personnel, was the only occupant of the vehicle which was owned by a Somerton company. Goldbaugh said the accident is currently under investigation.

The victim’s name was not being released as of press time. The body was transported to Wheeling Hospital.

Wheeling Fire Chief Larry Helms said witnesses said they thought the vehicle may have been having brake problems on the steep hill before it crashed.

“I talked to the owner of the company, and he thinks the driver may have gotten lost. He was supposed to have been heading toward Cameron,” Helms noted.

Firefighters said the roof of the truck cab was partially torn off when they arrived and the driver was still in his seatbelt.

“Our guys got him out and started working on him but he was already gone,” Helms said.

No other vehicles or people were involved in the accident.

However, an American Electric Power Co. pole was split and live wires were still attached to the pole but hanging above the pavement. AEP workers were called to the scene to cut the power to allow for clean up.

Carmen Prati-Miller, American Electric Power spokesperson, said no residents were immediately left without power following the crash, but an emergency outage was slated to occur at 10:45 a.m. to restore the lines. This outage was projected to last for about two hours. Much of Elm Grove and parts of Bethlehem would be affected by this outage.

As of press time, Junior Avenue was open for passing traffic but much of the Hillsdale section was blocked off to passing traffic.

It was unknown how long it would take to clear the truck and the rocks from Evelyn Avenue.

Heather Ziegler contributed to this story