ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Saturday, March 1, 1997 TAG: 9703030036
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
The Virginia Supreme Court has revived a wrongful death lawsuit stemming from an automobile accident that killed four Roanoke-area residents.
The young people were out drinking and joyriding in Craig County the night of Oct. 24, 1991, when the car they were in ran off the side of Virginia 311, smashed into a tree and burst into flames.
Killed were: Lisa Nicole Jordan, 20, of Goodview; Tammy Lynn Rutherford, 22, of Roanoke; Christopher Zamora Reyes, 16, of Roanoke; and Phillip Michael Lambert, 21, of Roanoke.
In a wrongful death lawsuit filed in Roanoke Circuit Court, Rutherford's family members sued the estate of Lambert, who was driving Rutherford's car at the time of the accident.
After hearing that all four victims had blood-alcohol levels above the legal limit for driving, a jury found that Lambert's estate was not liable for damages. In reaching that decision, jurors were instructed to consider whether Rutherford assumed any risk by riding with someone who had been drinking.
But the Supreme Court ruled Friday that Judge Richard Pattisall erred in giving the jury an "assumption of risk" instruction.
The jury could only speculate whether Rutherford knew Lambert had consumed too much alcohol to drive, Justice Barbara Keenan wrote in a seven-page opinion that reversed the verdict and sent the case back to Roanoke for a new trial.
Because there were no witnesses or survivors, there was no way to tell if Rutherford was aware that Lambert was intoxicated, said Brian Jones, a Roanoke lawyer who represented Rutherford's estate.
Attorneys for Lambert's estate pointed to evidence showing that he was "sober and empty-handed" when he joined the three passengers about three hours before the fatal accident. Therefore, they argued, he must have been drinking heavily over a short period of time - and in Rutherford's presence - in order to have a 0.12 percent blood-alcohol level as determined by an autopsy.
"Our position was that everybody in that car assumed the same risk of drinking and driving," said Frank Friedman, a Roanoke lawyer who represented Lambert's estate on appeal.
The accident happened about 3 a.m. near New Castle, on a stretch of 311 that curves sharply to the left. The car left a 77-foot skid mark before it ran off the right side of the road and hit the tree.
The car came to a rest pinned between two trees, where it burst into flames. Rescue workers had to cut the top off the car to remove the bodies.
Jones said it was likely that all four victims died from the impact before the fire started. A medical examiner testified at the trial that they suffered injuries consistent with falling 50 feet onto concrete.
LENGTH: Medium: 55 lines KEYWORDS: FATALITYby CNB