Tort Law

The cases set forth below are a compilation of cases from the Virginia Supreme Court summarized by Brien Roche dealing with the topic of the Dead Mans Act and the related topic of personal injury. For more information on the dead mans act see the pages on Wikipedia.

Dead Mans Act-Statutes

Va. Code § 8.01-397.

Dead Mans Act-Cases

2010 Jones v. Williams, 280 Va. 635, 701 S.E.2d 405.
In this medical malpractice action against deceased doctor, testimony of nurse on behalf of plaintiff did not require corroboration under the Dead Man’s Act since corroboration only applies as to an interested party. The nurse was not an interested party.

2003 Williams v. Condit, 265 Va. 49, 574 S.E.2d 241.
Dead mans act.Trial court improperly held that plaintiff had not met corroboration requirement under the Dead Mans Act even though a defense witness testified about the facts concerning the accident. Defense counsel in this case made the motion to strike at the conclusion of plaintiff’s case but the court did not rule on the motion until after the defense had called a witness who testified as to the circumstances of the accident. At that point, the trial court was obliged to consider all of that evidence that was before it when it made the ruling. In this case, plaintiff was the only witness who testified in her case about the circumstances surrounding the accident. The personal representative of the deceased driver who otherwise would have been a defendant did testify and that was sufficient corroboration.

2002 Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727.
In regards to the corroboration requirement under this statute, the question for the trial court is whether, given the entire trial testimony, there is more than a scintilla of corroborative evidence upon which jury may determine sufficiency. The corroboration requirement under the Act does not apply to a party’s testimony regarding certain facts if another interested party testified to a version of the facts on behalf of the dead man. In this case, the administrator testified as to one version of the facts and the defendant testified as to a different version of the facts. Where a person is not an interested party for purposes of the Dead Man’s Act, then that person’s testimony, which is contrary to that of an adverse party, will not eliminate the corroboration requirement. That is, the corroboration requirement would apply. Evidence of habit is not sufficient to meet the corroboration requirement under the act.

2000 Rice v. Charles, 260 Va. 157, 532 S.E.2d 318.
In this wrongful death action, defendant admitted negligence but relied upon defense of contributory negligence as to decedent who was passenger in vehicle. The uncorroborated evidence of defendant in support of contributory negligence defense was insufficient to support this defense under Dead Man’s Act since lacking corroboration and therefore, defense was stricken.

1998 Diehl v. Butts, 255 Va. 482, 499 S.E.2d 833.
In this medical malpractice action doctor should not have been allowed to testify as to conversations between he and his deceased patient. In this case corroboration requirement was not satisfied. Due to confidential nature of the relationship between doctor and patient higher degree of corroboration may be required than in other transactions.

1994 Taylor v. Mobil Corp., 248 Va. 101, 444 S.E.2d 705.
Whether sufficient corroboration exists is usually an issue for jury. In this case Mobil employee testified that decedent had not complained of chest pains. Fellow employee testified that she heard no such complaints. Jury issue as to whether or not this was sufficient corroboration.

1986 Gray v. Graham, 231 Va. 1, 341 S.E.2d 153.
Statements of decedent admissible under Va. Code § 8.01-397.

1984 Hereford v. Paytes, 226 Va. 604, 311 S.E.2d 790.
In regards to corroboration requirement it is not necessary that corroboration be sufficient to support verdict. If survivor’s testimony is corroborated to some degree it is unnecessary that it receives corroboration on all material points. In this case critical testimony offered by survivor was that he had veered his car to left so as to avoid oncoming car of decedent. His explanation as to why he veered to left was uncorroborated by any other evidence and as such was not admissible.

1980 Penn v. Manns, 221 Va. 88, 267 S.E.2d 126.
Defendant’s account of how accident occurred was corroborated by medical evidence.

1975 Hackett v. Emmett, 215 Va. 726, 214 S.E.2d 139.
Dead mans act. Corroboration not essential on all material points.

1973 Whitmer v. Marcum, 214 Va. 64, 196 S.E.2d 907.
There can be no judgment against estate of dead man unless testimony of adverse party is corroborated. Corroboration may come in many forms. In this case, tire marks as matter of law corroborated plaintiff’s testimony. Although corroboration is normally jury issue, it may be ruled on as matter of law.

1968 Sturman v. Johnson, 209 Va. 227, 163 S.E.2d 770.
Dead Mans act not applicable where defendant merely unable to recall actual details of accident. He was not incapable of testifying, and in fact, he did testify at length. Moreover, retrograde amnesia is not such incapability as is envisioned by statute.

1963 Carter v. Nelms, 204 Va. 338, 131 S.E.2d 401.
Plaintiff testified that she did not recall making certain statements and did not recall how accident happened. Defense counsel then moved to read testimony of defendant, now deceased, which was given at prior criminal proceeding involving same accident. Trial court properly refused to admit defendant’s testimony since plaintiff’s testimony was stricken.

1962 Balderson v. Robertson, 203 Va. 484, 125 S.E.2d 180.
Defendant called as adverse witness and plaintiff’s counsel elicited testimony from defendant of statement made by deceased plaintiff. No corroboration necessary. Dead Mans Act not applicable.

1962 Doe v. Faulkner, 203 Va. 522, 125 S.E.2d 169.
John Doe does not qualify as person incapable of testifying under Dead mans Act.

1958 Hoge v. Anderson, 200 Va. 364, 106 S.E.2d 121.
When adverse party testifies concerning any phase of case, then all entries, memoranda and declarations by party so incapable of testifying made while he was capable, relevant to matter in issue, may be received as evidence.

1956 Haynes v. Glenn, 197 Va. 746, 91 S.E.2d 433.
Dead Man’s Act not applicable because at prior trial testator given full opportunity to controvert party.