Gravitt v. Ward

11 Citing cases

  1. Ponirakis v. Choi

    262 Va. 119 (Va. 2001)   Cited 24 times
    Finding error in offering contributory negligence instruction was not harmless because the general verdict obscured whether the jury found for the defendant concluding he lacked primary negligence or because of the plaintiff's contributory negligence

    The defendant has the burden of proving contributory negligence by the greater weight of the evidence. Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Artrip, 240 Va. at 358, 397 S.E.2d at 823. In order for contributory negligence to bar recovery by a plaintiff, the plaintiff's negligence must be concurrent with the defendant's negligence.

  2. Judy v. Grant County Health Department

    210 W. Va. 286 (W. Va. 2001)   Cited 11 times

    Contrary to the appellees' assertions, the mere absence of a notation in the appellant's chart indicating that she had reported finding a lump in her breast does create a triable issue, and thus warrant a comparative negligence instruction. The facts in the case at bar are strikingly similar to those in Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631 (1999). In Gravitt, the plaintiff was also diagnosed with breast cancer a few months after she was examined by her doctor and told that a lump in her breast was a cyst.

  3. Wilson v. McEwen

    CASE NO. 6:14-cv-00033 (W.D. Va. Feb. 9, 2015)

    Under Virginia law, a plaintiff's contributory negligence acts as a complete bar to recovery. Gravitt v. Ward, 518 S.E.2d 631, 634 (Va. 1999). To prevail on such a claim, the burden rests on the defendant to show the plaintiff's injuries were proximately caused by his own negligence.

  4. Chandler v. Graffeo

    268 Va. 673 (Va. 2004)   Cited 8 times
    Holding that the trial court erred in granting a contributory-negligence instruction when the physician negligently discharged the patient by failing to recognize that his condition was “life threatening” and the patient, “a layman, c[ould not] be expected to know otherwise”

    To constitute contributory negligence in a medical-malpractice case, a plaintiff's negligence must be contemporaneous with the claimed defendant's negligence. Sawyer v. Comerci, 264 Va. 68, 75, 563 S.E.2d 748, 753 (2002); Ponirakis v. Choi, 262 Va. 119, 125, 546 S.E.2d 707, 711 (2001); Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987); Lawrence v. Wirth, 226 Va. 408, 412-13, 309 S.E.2d 315, 317-18 (1983). We conclude that the record is devoid of any evidence suggesting that Fields was negligent.

  5. Schlimmer v. Poverty Hunt Club

    268 Va. 74 (Va. 2004)   Cited 32 times
    Finding error was not harmless because we could not determine whether the jury returned a verdict for the defendant due to lack of primary negligence or due to plaintiff's contributory negligence

    These principles are likewise true with regard to instructions pertaining to primary negligence. See Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Yeary v. Holbrook, 171 Va. 266, 287-88, 198 S.E.2d 441, 451 (1938). [3-5] The doctrine of negligence per se represents the adoption of "the requirements of a legislative enactment as the standard of conduct of a reasonable [person]."

  6. Rose v. Jaques

    268 Va. 137 (Va. 2004)   Cited 34 times
    Rejecting argument that jury's verdict was excessive when compared to other post-traumatic stress disorder (PTSD) cases statewide and nationally

    However, "more than a scintilla of evidence is necessary to establish each of the elements of contributory negligence before such instruction may be given to a jury." Sawyer, 264 Va. at 75, 563 S.E.2d at 753; see also Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Ring v. Poelman, 240 Va. 323, 327, 397 S.E.2d 824, 827 (1990). The prima facie case is demonstrated when there is more than a scintilla of evidence produced on each of the elements of contributory negligence.

  7. Wolbers v. Finley Hospital

    673 N.W.2d 728 (Iowa 2003)   Cited 28 times
    Holding the hospital vicariously liable for the negligence of the emergency room caregivers, even though the caregivers were designated independent contractors rather than employees because "an emergency–room patient looks to the hospital for care, and not to the individual physician" (quoting 40A Am. Jur. 2d Hospitals & Asylums § 48, at 460 (1999) )

    These include: Matthews v. Williford, 318 So.2d 480, 483 (Fla. Dist. Ct. App. 1975) (patient's failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative-fault instruction); Van Vacter v. Hierholzer, 865 So.2d 355, 360 (Mo. Ct. App. 1993) (reversal warranted when comparative-fault instruction invited jury to apportion fault based on conduct not proximately causing death); Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178, 186-87 (Neb. 1990) (patient's failure to heed doctor's advice to lose weight may have caused pulmonary embolism but is irrelevant to the claim that doctor later negligently treated the condition); and Gravitt v. Ward, 518 S.E.2d 631, 635 (Va. 1999) (insufficient proof of patient's failure to notify doctor of breast lump to warrant comparative-fault instruction). In the present case, the hospital contends that Wolbers' history of tobacco use, even up to the date of his admission into the hospital, was a producing cause of his death because it contributed to the blockage of his air passages.

  8. Sawyer v. Comerci

    264 Va. 68 (Va. 2002)   Cited 34 times
    Finding evidence insufficient to support the contributory-negligence instruction, explaining that when the patient declined to be admitted to the hospital, the physician failed to explain that if the patient “chose to leave the hospital without being admitted … he could die”

    Additionally, in order for contributory negligence to bar a plaintiff's recovery in a medical negligence action, the plaintiff's negligence must be concurrent with the defendant's negligence.Ponirakis, 262 Va. at 125, 546 S.E.2d at 711; Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987); Lawrence v. Wirth, 226 Va. 408, 412, 309 S.E.2d 315, 317 (1983). We have stated that "[i]n the medical malpractice context, this requirement means that the patient's negligent act must be contemporaneous with the main fact asserted as the negligent act of the physician."

  9. Demoss v. Hamilton

    644 N.W.2d 302 (Iowa 2002)   Cited 16 times
    In DeMoss v. Hamilton, 644 N.W.2d 302 (Iowa 2002), the Iowa Supreme Court addressed the question of "when, if ever, a patient's fault may be considered by the jury and compared with the alleged fault of the doctor."

    Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178, 186-87 (Neb. 1990) (patient's failure to heed doctor's advice to lose weight may have caused pulmonary embolism but is irrelevant to claim that doctor later negligently treated the condition); accord Matthews v. Williford, 318 So.2d 480, 483 (Fla.Dist.Ct.App. 1975) (patient's failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative fault instruction); Van Vacter v. Hierholzer, 865 S.W.2d 355, 360 (Mo.Ct.App. 1993) (reversal warranted where comparative fault instruction invited jury to apportion fault based on conduct not proximately causing death); Gravitt v. Ward, 518 S.E.2d 631, 635 (Va. 1999) (insufficient proof of patient's failure to notify doctor of breast lump to warrant comparative fault instruction). Applying these principles to the case before us, it is tempting to conclude that the temporal proximity as well as the causal relationship between Brian's conduct and his heart disease makes for a closer call on proximate cause than the cases upon which DeMoss relies.

  10. Carroll v. Whitney

    29 S.W.3d 14 (Tenn. 2000)   Cited 53 times
    Holding that plaintiff-employees "must bear the burden of not collecting those damages" from immune defendant-employers

    While virtually all jurisdictions have adopted some form of comparative fault, five jurisdictions retain the traditional system of contributory negligence. See Williams v. Delta Int'l Mach. Corp., 619 So.2d 1330 (Ala. 1993); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998); Harrison v. Montgomery County Bd. of Educ., 456 A.2d 894 (Md. 1983); Jones v. Rochelle, 479 S.E.2d 231 (N.C. Ct. App. 1997); Gravitt v. Ward, 518 S.E.2d 631 (Va. 1999).