LEGAL WRITING

FACTS UNDERLYING THE INITIAL PLEADING,

THE ANSWER AND THE APPEAL BRIEF

The following facts are to be used as the basis for the initial pleading assignment, the anwers assignment and the appeal brief assignment.

All of these facts neen not be necessarily included in the above assignments. It is up to you to determine which facts should be included and how they should be included.

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On April 23, 1994, Maureen McDougal was a pedestrian attempting to cross the intersection of Simmons Street and Cherry Lane in Arlington, Virginia.. This is an uncontrolled intersection in a residential-type neighborhood. Simmons Street runs north and south while Cherry Lane runs east and west. Ms. McDougal was crossing Simmons Street in a westerly direction from the northeast corner to the northwest corner.

The intersection did contain a pedestrian crosswalk which was clearly marked. There were no stop signs controlling the intersection.

Ms. McDougal was in the crosswalk when she noticed Thomas Tulane, the driver of a 1959 Ford pickup truck approaching from the right (heading south on Simmons Street toward the intersection). As she reached the center of the road, the pickup truck appeared to slow down. She assumed he was granting her the right of way and she then proceeded to cross in front of him. She was then struck by the pickup and knocked to the pavement.

An ambulance was called to the scene and she was transported to Mercy Hospital, where she was treated in the emergency room and later admitted. She sustained a broken arm, a broken leg, two broken ribs, a collapsed lung and lacerations across the left side of her body. She spent two weeks in the hospital and was ordered by her doctors to remain at home for the four months following her hospital stay. Her hospital bill was $12,098.00; her doctors= bills were $3409.00;

and private duty nursing cost $6,000.00. Her lost wages amounted to $4,500.00.

She was also forced to drop out of her second year at George Mason University.

Ms. BcDougal is 19 years old. She was a sophomore at GMU when the accident occurred. She also worked part-time as a secretary-receptionist at the Xerox Corporation for $1,000.00 per month. She lives at home with her parents at 4567 York Street, Vienna, VA.

Mr.. Tulane is a 44-year old bricklayer for the Murphy Company, a construction company based in Bethesda, MD. He lives in Rosslyn at 345 Offit Street, Arlington, VA. He was going to visit a friend when the accident occurred.

The accident occurred at 10:15 a.m. There was no evidence that either party had been drinking alcohol prior to the accident.

Mr. Tulane is married and as three children, aged 9, 11 and 16. He was convicted of reckless driving in 1976 in Fairfax County.

Conference between Ms. BcDougal and he lawyer

She told her attorney that she saw the truck and when he slowed down, she assumed he would stop and allow her to cross. She then proceeded to cross and the next thing she knew, she had been knocked to the ground. She did not see him wave her across, but assumed it was safe simply because he slowed down. She did not continue to watch the truck as she crossed the intersection.

She further told her attorney that he must have seen her as he was looking straight at her when he slowed down. She could see him in the truck looking at her.

Conference between Mr. Tulane and his lawyer

He told his attorney that he saw Ms. McDougal stop in the middle of the intersection and he assumed she would wait for him to pass through. Why else would she have stopped there? He did slow down a bit as he approached but only because he saw a pedestrian there. He was not slowing down in order to stop. When she did step in front of him, she didn=t even look his way and it was too late for him to avoid hitting her.

USE THE ABOVE FACTS AS THE BASIS FOR

YOUR INITIAL PLEADING AND ANSWER

YOU MAY ALSO USE THE FOLLOWING SUMMARY OF THE LAW IN ORDER TO FORMULATE YOUR INITIAL PLEADING AND ANSWER

Negligence: Negligence is the failure to exercise that degree of care which a reasonable person would under the circumstances. It involves the violation of a duty owed to another to conduct your activity in such a way so as to not unreasonably endanger the lives or property of others. Violation of a safety statute is also considered negligence if the victim is part of the group that the statute is designed to protect. Driving a vehicle contra to the traffic code and in a way which endangers others is clearly negligence.

Contributory negligence: In Virginia, if a plaintiff=s own negligence contributes to the accident or injury, that plaintiff will not be allowed to recover damages against a negligent defendant. Thus, Mr. Tulane would want to be able to establish that Ms. McDougal was contributorily negligent - that would constitute a Aground of defense.@ Remember that contributory negligence is an affirmative defense.

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HISTORY OF THE CASE AND THE LAW

TO BE USED FOR THE APPEAL BRIEF

The following facts are to be used in conjunction with the appeal brief.

All of these facts need not necessarily be included. It is up to you to determine which facts should be included and how they should be included.

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Trial in the case of McDougal v. Tulane (Case Number Law 01-457) took place in the Arlington County Circuit Court on April 17, 2001. It was tried with a jury before the Honorable Wayne S. Borough.

During the course of the trial, both the plaintiff and the defendant testified. The basic content of their testimony included the information found in the earlier pages of this handout.

Medical testimony was also elicited in behalf of the plaintiff as to her injuries and treatment by Dr. G.K. Corn, her treating physician. Her lost wages were stipulated to by the defense. The content of both the medical testimony and the testimony as to lost wages can also be found in the earlier pages of this handout.

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ISSUE: The trial court granted the defendant=s motion to dismiss after the plaintiff presented her case. The judge ruled that the plaintiff was contributorily negligent as a matter of law. This means that a reasonably jury could only have concluded that she was contributorily negligent. He then dismissed the jury and ruled in favor of the defendant.

DID THE TRIAL COURT ERR IN FINDING APPELLANT

GUILTY OF CONTRIBUTORY NEGLIGENCE AS A MATTER

OF LAW?

NOTE: When referring to the judge=s rulings and references to testimony during the trial, use imaginary transcript pages.

NOTE: You should not look up any law for this assignment. The following legal references are all that you are to include. This is a writing, not a research assignment.

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LEGAL REFERENCES:

West v. City of Portsmouth, 217 Va. 734, 232 S.E. 2d 763 (1977). AA pedestrian is guilty of contributory negligence as a matter of law when he had actual knowledge of a defect in the sidewallk and no reasonable excuse for inattention.@

A pedestrian tripped on the root of a tree that crossed the sidewalk and protruded upward across the pathway.

Town of Hillsville v. Nester, 215 Va. 4, 205 S.E. 2d 398 (1974). The plaintiff fell on a crack in the sidewalk that was open and obvious. He was found to have been contributorily negligent as a matter of law.

King v. Bondurant Dev. Corp., 227 Va. 206, 270 S.E. 2d 500 (1984). A janitor slipped and fell on ice which had accumulated at the entrance of the building in which he worked. He crossed the ice as he entered the building, but slipped and fell a short time later as he exited. The Virginia Supreme Court found that the trial court improperly found that he had been contributorily negligent as a matter of law in trying to cross the ice as he left the building. It should be been considered a jury issue. The Supreme Court also found that Ain order to establish the defense of contributory negligence as a matter of law, Bondurant would be required to establish the foregoing matters as facts to the degree that reasonable men should not be able to differ in their opinions...@

Phillips v. Stewart, 207 Va. 214, 148 S.E. 2d 784 (1966). Plaintiff was struck by a vehicle while he was a pedestrian crossing an intersection with a green light. The defendant had run a red light but the plaintiff had not looked to first see whether he was actually going to stop or not. The Supreme Court found that this was properly found to be a jury issue rather than a matter of law. The Court found that a jury might properly have found his failure to see if the driver was going to stop amounted to contributory negligence. They also found that while a pedestrian is under no duty to keep an approaching vehicle under continuous watch, he also has a duty not to walk in front of a vehicle that is dangerously close to him.

Include all of these cases in your appeal brief.