GINA COUTLAKIS, PERSONAL REPRESENTATIVE OF JAMES COUTLAKIS, DECEASED, AND EXECUTOR OF HIS ESTATE,
CSX TRANSPORTATION, INC., ET AL.
THE CIRCUIT COURT OF THE CITY OF RICHMOND Theodore J. Markow,
PRESENT: All the Justices
E. POWELL JUSTICE
Coutlakis ("Gina") appeals the judgment of the
trial court sustaining a demurrer on the basis that her
action was barred because her husband, James Coutlakis
("James"), was contributorily negligent.
present case was decided on demurrer, "we recite the
facts contained in the pleadings and all reasonable
inferences therefrom in the light most favorable to the
plaintiff." Martin v. Ziherl, 269 Va. 35, 38,
607 S.E.2d 367, 368 (2005). So viewed, the record
demonstrates that, on September 4, 2015, Gina filed her third
amended complaint against CSX Transportation, Inc.
("CSX"), Brian Crowder ("Crowder"), and
Daniel Epstein ("Epstein") (collectively the
"Appellees"), alleging that their negligence
resulted in the death of James. In her complaint, Gina
alleged that, on July 6, 2013, James was walking adjacent to
railroad tracks owned by CSX. At the time, James was
listening to music on his cellular telephone through earbuds.
As a result, James was unaware of the fact that a CSX train
was approaching him from behind.
further alleged that Crowder, the train's conductor, and
Epstein, the train's engineer, had a chance to avoid the
accident, as they saw James while he was several hundred
yards in front of the train. However, as James continued to
walk along the tracks, showing no sign that he was aware of
the approaching train, neither Crowder nor Epstein took any
steps to alert James or avoid a collision. James was
subsequently "struck by a part of the train that
extended out from the side of the body of the [t]rain which
caused severe injuries to his head and . . . shoulder, "
killing him immediately.
Crowder and Epstein collectively demurred, arguing that, even
when viewed in the light most favorable to Gina, James's
contributory negligence was evident on the face of the
complaint and, therefore, Gina's claim was barred. The
defendants further asserted that Gina's reliance on the
last clear chance doctrine was misplaced, because James's
negligence was ongoing at the time he was struck. After
hearing argument on the matter, the trial court sustained the
appeal, Gina argues that the trial court erred in sustaining
the Appellees' demurrer. According to Gina, her third
amended complaint contained sufficient facts to support her
allegation that the last clear chance doctrine may apply to
the present case and, therefore, James's contributory
negligence did not require dismissal of her complaint. We
The purpose of a demurrer is to determine whether a
[complaint] states a cause of action upon which the requested
relief may be granted. A demurrer tests the legal sufficiency
of facts alleged in pleadings, not the strength of proof.
Accordingly, we accept as true all properly pled facts and
all inferences fairly drawn from those facts. Because the
decision whether to grant a demurrer involves issues of law,
we review the circuit court's judgment de novo.
Abi-Najm v. Concord Condo., LLC, 280 Va. 350,
356-57, 699 S.E.2d 483, 486-87 (2010) (citations and internal
quotation marks omitted).
present, this Court has only recognized two types of
plaintiff who may avail themselves of the last clear chance
doctrine. The first type of plaintiff, the helpless
plaintiff, is a plaintiff who "negligently placed
himself in a situation of peril from which he is physically
unable to remove himself." Greear v. Noland
Co., 197 Va. 233, 238, 89 S.E.2d 49, 53 (1955). In the
case of a helpless plaintiff, "the defendant is liable
if he ...