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Motion To Strike Cases Summarized By Personal Injury Lawyer

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Motion to Strike.  

See Va. Code § 8.01-274 as to motion to strike defensive pleadings.

2008 Super Value, Inc. v. Johnson, 276 Va. 356, 666 S.E.2d 335.

A motion to strike during the course of the trial is an appropriate way of testing the sufficiency of the evidence as is a motion to set aside the verdict. Either approach is acceptable in terms of making a record since either approach presents to the trial judge the appropriate question for decision.

2008 Brown v. Hoffman, 275 Va. 447, 657 S.E.2d 150.

In this medical malpractice action the court improperly granted a motion to strike where the issue was whether the defendant’s surgeon was confronted with a normal or abnormal anatomical configuration during the surgery. That question of fact should have been submitted to the jury.

2005 Green v. Ingram, 269 Va. 281, 608 S.E.2d 917.

In deciding a motion to strike, the trial court is not to judge the weight and credibility of the evidence and may not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense. The motion can be granted only when it is conclusively apparent that the plaintiff has proven no cause of action. In this police shooting case, a jury could have concluded that the officer was guilty of gross negligence and that he departed from instructions and training in firing a shotgun.

2002 Howerton v. Mary Immaculate Hosp., Inc., 264 Va. 272, 563 S.E.2d 671.

Medical malpractice case. Plaintiff alleged that hospital nurses were negligent in not notifying obstetrician of mother’s change of condition which resulted in delayed delivery of child. One physician testified that neurological damage to child occurred 15 minutes before her birth and that no damage would have occurred if child had been delivered 15 minutes earlier. Thus, jury could have concluded that if physician had been notified earlier, she would have delivered the child without neurological damage. As such, jury issue presented as to both negligence and proximate cause. Trial court improperly rejected part of physician’s testimony that conflicted with opinions of defense experts.

1998 Claycomb v. Didawick, 256 Va. 332, 505 S.E.2d 202.

Court granted motion to strike based upon finding of contributory negligence as to plaintiff. Plaintiff in this case was traveling in right-hand eastbound lane of Route 50. Tractor trailer pulled up in lane to plaintiff’s left alongside plaintiff. Defendant then pulled out into plaintiff’s lane forcing plaintiff to pull left to avoid impact with rear of defendant’s vehicle. Plaintiff impacted rear of defendant’s vehicle. Trial court in ruling on motion to strike at close of all evidence on liability by plaintiff ruled that plaintiff had clear unobstructed view of defendant’s vehicle and failed to maintain a proper lookout. That was not evidence viewed in light most favorable to plaintiff and therefore motion to strike should not have been granted.

1997 Austin v. Shoney’s, Inc., 254 Va. 134, 486 S.E.2d 285.

Plaintiff was elderly woman who walked with cane. She was exiting restaurant when she fell on what was alleged to be slippery floor. Plaintiff’s evidence was that slippery oil-like substance had been on floor for at least 20 minutes before accident and that one other patron had slipped on floor and that this substance may have been cleaning substance placed there by the defendant. If jury accepted plaintiff’s theory that grease-like film was result of improper cleaning methods, then Shoney’s is charged with constructive knowledge of risk because it had duty to exercise reasonable care to avoid genesis of danger. Jury was unable to reach verdict and court sustained post-trial motion to strike. This was error.

1997 Norfolk Southern Ry. v. Trimiew, 253 Va. 22, 480 S.E.2d 104.

Defendant did not make motion to strike at close of plaintiff’s case or at conclusion of all evidence. Following verdict, defendant moved Court to set verdict aside on ground that plaintiff had failed to prove defendant was negligent. Citing Gabbard v. Knight, 202 Va. 40, Supreme Court stated that in testing sufficiency of evidence, defendant has option of making motion to strike plaintiff’s evidence or awaiting jury verdict.

1994 Bentley v. Felts, 248 Va. 117, 445 S.E.2d 131.

Defendant entered intersection due to alleged failure of power assisted brakes. Evidence could support alternative findings as to cause of accident and as such motion to strike properly denied.

1989 West v. Critzer, 238 Va. 356, 383 S.E.2d 726.

Striking evidence at close of plaintiff’s case is drastic measure with high cost of administration of justice and should be avoided unless there is no doubt plaintiff has not proven any cause of action.

1989 Hadeed v. Medic 24 Ltd., 237 Va. 277, 377 S.E.2d 589.

In reviewing motion to strike, Supreme Court will examine evidence determine if reasonable men may differ on conclusion to be reached. If so, trial court committed error. Plaintiff is entitled to benefit of all substantial conflict in evidence and all fair inferences. Motion to strike in this medical malpractice case is overturned.

1988 C. & P. Tel. v. APAC/Virginia, 236 Va. 492, 373 S.E.2d 927.

Trial court should not strike plaintiff’s evidence unless it is conclusively apparent plaintiff has failed to prove prima facie case.

1988 Payne v. Gloeckl, 236 Va. 356, 374 S.E.2d 32.

Motion to strike should only be granted when it conclusively appears that plaintiff has proved no cause of action against defendant or when it plainly appears trial court would be obliged to set aside any verdict for plaintiff.

1987 Kesler v. Allen, 233 Va. 130, 353 S.E.2d 777.

Directed verdicts are expressly prohibited by Va. Code § 8.01-378.

1987 Graddy v. Hatchett, 233 Va. 65, 353 S.E.2d 741.

Where parties have introduced all available evidence and trial court has sustained motion to strike, Supreme Court will examine evidence to determine whether verdict on behalf of losing party can be sustained. If it cannot, it will affirm action of trial court. Evidence in this case could lead to only one conclusion, i.e., that Graddy, in violation of duties applicable, moved from place of safety into intersection and into path of fast-moving traffic in plain view upon assumption vehicle would stop before entering intersection. This is classic case of negligence as matter of law.

1986 Medcom, Inc. v. C. Arthur Weaver Co., 232 Va. 80, 348 S.E.2d 243.

Plaintiff pled that it issued no warranty to defendant and the goods sold to defendant were fit for purpose for which intended. Defendant denied this. Therefore, issue of breach of warranty by plaintiff was properly before the court.

1985 Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440.

Principle of tort litigation that issues of negligence and proximate cause ordinarily are for jury apply with no less force to medical malpractice cases. Where there is any doubt on question, motions should be denied. For motion to be granted it must be conclusively apparent that plaintiff has proven no cause of action.

1983 Meeks v. Hodges, 226 Va. 106, 306 S.E.2d 879.

Court must view evidence and all reasonable inferences drawn therefrom in light most favorable to plaintiff and resolve any reasonable doubt as to its sufficiency in his favor.

1983 City of Suffolk v. Hewitt, 226 Va. 20, 307 S.E.2d 444.

Defendant’s motion to strike was denied. Defendant then introduced evidence, thereby waiving its earlier motion. On appeal Supreme Court, therefore, considered all of relevant evidence.

1983 Geico v. Gallop, 224 Va. 720, 299 S.E.2d 525.

Summary judgment was reversed where there was conflicting evidence on speed of defendant’s vehicle, on whether defendant kept proper lookout, and on role of John Doe defendant in accident.

1982 Wells v. McMahon, 223 Va. 192, 288 S.E.2d 439.

Party whose evidence was struck is entitled to have evidence viewed in light most favorable to him on appeal.

1981 Basilotta v. Barker, 222 Va. 683, 283 S.E.2d 220.

On motion to strike, evidence must be viewed in light most favorable to plaintiff.

1981 Butler v. Yates, 222 Va. 550, 281 S.E.2d 905.

In ruling on motion to strike, trial judge is obliged to adopt those inferences most favorable to party whose evidence is challenged, even though he may believe different inferences are more probable.

1981 Harris v. Bankers Life & Cas. Co., 222 Va. 45, 278 S.E.2d 809.

Jury issue presented as to whether stabbing was accident under terms of insurance policy.

1981 Jones v. Downs, 222 Va. 25, 278 S.E.2d 799.

In ruling on motion to strike court should resolve any reasonable doubt as to sufficiency of evidence in plaintiff’s favor.

1979 Sumner v. Smith, 220 Va. 222, 257 S.E.2d 825.

Plaintiff admitted prior back injury but said this accident resulted in injury to other part of back. Doctor testified to aggravation of pre-existing problem. Motion to strike improperly granted on issue of causation.

1975 Rouse v. Great Atl. & Pac. Tea Co., 216 Va. 293, 217 S.E.2d 891.

Trial court struck plaintiff’s case before case in chief concluded. Harmless error since remainder of evidence stipulated to on appeal.

1975 Monday v. Oliver, 215 Va. 748, 214 S.E.2d 142.

Defendant is entitled to have his evidence reviewed in light most favorable to him when his evidence is struck by trial court. It was error to strike defendant’s evidence and enter summary judgment against him since jury could have inferred that defendant was not negligent.

1975 Surface v. Johnson, 214 Va. 777, 214 S.E.2d 152.

When trial court sustained motion to strike plaintiff’s evidence, on review, evidence and all reasonable inferences therefrom will be viewed in light most favorable to plaintiff.

1974 Meador v. Lawson, 214 Va. 759, 204 S.E.2d 285.

Motion to strike should be granted only when it is conclusively apparent that plaintiff has proven no cause of action against defendant.

1970 Woodson v. Commonwealth, 211 Va. 285, 176 S.E.2d 818.

Litigants may not raise question of admissibility of evidence for first time in motion to strike. Such motions deal with sufficiency rather than admissibility of evidence.

1970 Sykes v. Langley Cabs, Inc., 211 Va. 202, 176 S.E.2d 417.

On motion to strike, all inferences which jury might fairly draw from plaintiff’s evidence must be drawn in favor of plaintiff.

1969 Behen v. Manning, 210 Va. 173, 169 S.E.2d 452.

In reviewing motion to strike at close of plaintiff’s case, inferences that may be fairly drawn from plaintiff’s evidence must be resolved in her favor.

1968 Carter v. Miley, 209 Va. 206, 163 S.E.2d 15 1.

Error to strike plaintiff’s evidence where reasonable men could differ on inferences to be drawn from facts. Jury question presented.

1968 Taylor v. Great Atl. & Pac. Tea Co., 209 Va. 64, 161 S.E.2d 692.

In considering motion to strike plaintiff’s evidence, evidence is to be considered very much as on demurrer to evidence, and all inferences which jury might favorably draw from plaintiff’s evidence must be drawn in his favor.

1966 Hall v. Hockaday, 206 Va. 792, 146 S.E.2d 215.

In ruling on such motion, all reasonable inferences must be drawn in favor of plaintiff.

1962 Spurlin v. Richardson, 203 Va. 984, 128 S.E.2d 273.

Court must draw in plaintiff’s favor all inferences that can be fairly drawn.

1960 Stimeling v. Goodman, 202 Va. 111, 115 S.E.2d 923.

Where trial court has struck plaintiff’s evidence, Supreme Court must view evidence in light most favorable to plaintiff.

1960 Gabbard v. Knight, 202 Va. 40, 116 S.E.2d 73.

Fact that motion to strike evidence was not made does not preclude party from making motion to set aside verdict.

1960 Turner v. Burford Buick Corp., 201 Va. 693, 112 S.E.2d 911.

In accord with Code, no directed verdict shall be entered in jury case unless trial court has first granted motion to strike.

1959 Smith v. New Dixie Lines, 201 Va. 466, 111 S.E.2d 434.

In considering motion to strike, all reasonable inferences must be drawn in plaintiff’s favor.

1957 Clark v. Kimnach, 198 Va. 737, 96 S.E.2d 780.

In making motion to strike plaintiff’s evidence, defendant is in effect making motion for summary judgment.

1956 Coureas v. Allstate Ins. Co., 198 Va. 77, 92 S.E.2d 378.

In reviewing motion to strike, all inferences which jury might fairly draw from plaintiff’s evidence must be drawn.

1953 Eggleston v. Broadway-Manhattan Taxi Corp., 194 Va. 584, 74 S.E.2d 212.

Where defendant has made motion to strike at close of plaintiff’s case, if plaintiff’s counsel has given any indication that other evidence would be offered to explain, change or lessen full import of what plaintiff has said then ample opportunity to develop these facts should be granted.

1951 Dudley v. Guthrie, 192 Va. 1, 63 S.E.2d 737.

Striking plaintiff’s evidence should not be done unless it is plain that court would be compelled to set aside verdict for plaintiff. Somewhat more liberal rule applies as to motions made at close of all evidence.

1950 Interstate Veneer Co. v. Edwards, 191 Va. 107, 60 S.E.2d 4.

Defendant moved to strike at close of plaintiff’s case. By thereafter presenting evidence, defendant waived right to rely on his own motion.

1950 Robinson v. Fidelity & Cas. Co., 190 Va. 368, 57 S.E.2d 93.

Where trial court strikes plaintiff’s evidence at end of plaintiff’s case, then, on appeal, evidence must be reviewed from point of view most favorable to plaintiff.

1950 Guthrie v. Carter, 190 Va. 354, 57 S.E.2d 45.

Where plaintiff has failed to establish any negligent conduct of defendant and overall has little or no recall of accident, directed verdict is appropriate.

1949 Edwards v. Hobson, 189 Va. 948, 55 S.E.2d 857.

Motion should be granted if it plainly appears that trial court would be compelled to set aside verdict due to insufficiency of verdict.

1948 Spangler v. Commonwealth, 188 Va. 436, 50 S.E.2d 265.

By introducing evidence after motion to strike denied, defendant waives right to stand on such motion in civil or criminal case.

1947 Barnes v. Mabry, 186 Va. 243, 42 S.E.2d 304.

Motion to strike at close of plaintiff’s case should not be granted unless it is plain that court would be compelled to set aside verdict for plaintiff.

1946 Clark v. Hodges, 185 Va. 431, 39 S.E.2d 252.

Refusal of trial court to strike plaintiff’s case is not binding determination of jury issue having been presented. In any case, Supreme Court is required to exercise its independent judgment.

1946 Gray v. Van Zaig, 185 Va. 7, 37 S.E.2d 751.

Motion to strike plaintiff’s case at conclusion of plaintiff’s evidence should be granted only in those cases where it is conclusively apparent that plaintiff has proven no cause of action against defendant. Better course of action is to allow case to go to jury and then to set aside verdict if contrary to evidence.

1944 Hoover v. Neff, 183 Va. 56, 31 S.E.2d 265.

In considering motion to strike, all inferences which jury might fairly draw from plaintiff’s evidence must be drawn in his favor.

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Motion To Strike Cases Summarized By Personal Injury Lawyer

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