Ernestine M. Burton v. John Doe

• Court: Court of Appeals of Virginia
• Decided: July 14, 2026
• Docket: 0424252
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Record No. 0424-25-2

ERNESTINE M. BURTON v. JOHN DOE

Present: Chief Judge Decker, Judges Beales and Athey Argued at Richmond, Virginia Opinion Issued July 14, 2026*

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND C.N. Jenkins, Jr., Judge

Brenda L. Page (Alan F. Duckworth; Douglass A. A. James; Page Law Firm, P.C., on briefs), for appellant.

E. Brandon Ferrell (Kerrigan O’Malley; Carter & Shands, PC, on brief), for appellee.

MEMORANDUM OPINION BY JUDGE RANDOLPH A. BEALES

Ernestine M. Burton sued John Doe, an unidentified driver,1 for personal injuries she

allegedly sustained in an accident. Doe admitted liability and the case proceeded to a jury trial

solely on the issue of damages, and the jury found for Doe on the issue of damages—i.e., finding

that she suffered no damages. On appeal, Burton argues that the circuit court erred in denying

her motion in limine to exclude certain video evidence and in rejecting her proposed verdict

form.

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Because the driver was never identified, Burton sued the driver as a “John Doe” and served the uninsured motorist insurance carrier under Code § 38.2-2206(E). BACKGROUND

Burton has worked as a bus driver for the Greater Richmond Transit Company for over

two decades. On June 30, 2017, she stopped on Jefferson Davis Highway in the City of

Richmond to let passengers board and disembark. While she was stopped, a car struck the back

of the bus and then fled the scene. Burton sued John Doe to recover for personal injuries that she

alleges that she sustained.

Before trial, Burton moved to prohibit Doe from introducing a video showing the

passenger area of the bus at the time of the collision. Burton argued that it was irrelevant and

was a redundant video of the driver’s area—and that “the absence of injuries to other person[s] is

not admissible in a personal injury case.” Burton further argued that the video showed the inside

of the bus—not the collision. Doe’s counsel stated that he was “in no way going to argue that no

one else was hurt.” Doe asserted that the rear-facing video contextualized the other video of

Burton that was admitted and “show[ed] the actual accident.” Thus, Doe contended, there was

not substantial prejudice “that would outweigh the [video’s] relevance.”

The forward-facing video shows Burton allowing a person to get on and off the bus and

pressing a button on the dashboard. Then there is a loud thud before Burton looks around and

questions, “Did somebody just run into the back of me? Really?”2 The rear-facing video shows

the rear interior of the bus, including a handful of passengers standing and sitting in the bus, and

vehicles are visible through the windows. The rear-facing video then exhibits a loud thud. At

the same time, a car is visible through the rear side windows, before it continues to pass by the

driver’s side of the bus.

The trial court noted Doe’s assurance that the video would not be used as evidence of

others’ injuries, or lack thereof, and found that “to the extent that [the video] does show the

2 Doe played only the first 25 seconds of this video to the jury. -2- actual collision, . . . that’s the best evidence you can have in automobile accident cases.” The

trial court also opined that the video could actually be a “detriment” to Doe. Thus, the trial court

denied Burton’s motion.

At trial, Burton testified that a car “ran into the back of the bus.” When she exited the

bus to survey the damage, she saw “scrapes on the [left rear] bumper,” and the metal grate on the

driver’s side of the bus was “bent to the side” and “looked like a candy cane.”

After Burton concluded her case-in-chief, Doe proceeded to put on evidence, including

the forward-facing and rear-facing videos. The parties then discussed jury instructions and their

competing verdict forms with the trial court. Doe proffered a verdict form which included the

options: “We, the jury, on the issues joined, find for Defendant” or “We, the jury, find in favor of

the Plaintiff” with blank spaces for the jury to fill in any findings related to damages. Burton’s

proffered verdict form only allowed the jury to find for her with blank spaces for the jury’s

damages findings. Doe argued that finding damages is an element of a negligence action and

any failure to prove damages should result in a defense verdict. Doe also asserted that, if the jury

determined Burton failed to meet her burden, the jury should not be forced to write zero in the

blank space for damages. Burton argued that, as Doe had admitted liability, it was appropriate

for the jury to find for her and write down zero if it found she failed to prove damages. The trial

court adopted Doe’s verdict form.

The trial court’s instructions to the jury included that Doe had admitted liability and the

only issue the jury should “decide is the amount of damages, if any,” that Burton was entitled to

recover. The jury was instructed that Doe’s admission of liability should not influence its

decision on damages and that Burton maintained the burden of proof. Jury Instruction 11

outlined factors the jury could consider “[i]n determining the damages to which Ernestine Burton

is entitled” and stated that the “verdict should be for such sum as will fully and fairly compensate

-3- the plaintiff for her damages sustained as a result of the defendant’s negligence.” After argument

from counsel and deliberation, the jury returned a verdict for Doe. Burton now appeals to this

Court.

ANALYSIS

I. Admissibility of the Rear-Facing Video

Burton argues, “The trial court committed reversible error when it denied the Appellant’s

Motion in Limine and allowed the introduction of an irrelevant video.”

Determining the “‘admissibility of evidence is within the discretion of the trial court,’ and

an appellate court will not reject such decision absent an ‘abuse of discretion.’” Williams v.

Commonwealth, 71 Va. App. 462, 487 (2020) (quoting Tirado v. Commonwealth, 296 Va. 15, 26

(2018)). “[T]he abuse of discretion standard requires a reviewing court to show enough

deference to a primary decisionmaker’s judgment that the [reviewing] court does not reverse

merely because it would have come to a different result in the first instance.” Commonwealth v.

Thomas, 73 Va. App. 121, 127 (2021) (alterations in original) (quoting Lawlor v.

Commonwealth, 285 Va. 187, 212 (2013)). “Only when reasonable jurists could not differ can

we say an abuse of discretion has occurred.” Commonwealth v. Barney, 302 Va. 84, 94 (2023)

(quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).

“All relevant evidence is admissible, except as otherwise provided by the Constitution of

the United States, the Constitution of Virginia, statute, Rules of the Supreme Court of Virginia,

or other evidentiary principles.” Va. R. Evid. 2:402(a). “‘Relevant evidence’ means evidence

having any tendency to make the existence of any fact in issue more probable or less probable

than it would be without the evidence.” Va. R. Evid. 2:401. “Relevant evidence may be

excluded if: (a) the probative value of the evidence is substantially outweighed by (i) the danger

-4- of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact; or (b) the

evidence is needlessly cumulative.” Va. R. Evid. 2:403.

“The requirement under Rule 2:403 that only ‘unfair’ prejudice may be considered

reflects the fact that all probative direct evidence generally has a prejudicial effect to the

opposing party.” Lee v. Spoden, 290 Va. 235, 251 (2015). “[T]he mere fact that evidence is

highly prejudicial to a party’s claim or defense is not a proper consideration in applying the

balancing test. Rather, a trial court must determine whether the probative value of the evidence

is substantially outweighed by its unfair or unduly prejudicial effects.” Id. at 252 (emphases in

original). “‘[U]nfair prejudice’ refers to the tendency of some proof to inflame the passions of

the trier of fact, or to invite decision based upon a factor unrelated to the elements of the claims

and defenses in the pending case.” Id. at 251.

Unfair prejudice is “the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt [or liability] on a ground different from proof specific to the [case

elements]” and refers to evidence which has “an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Id. at 251-52 (alterations

in original) (quoting Old Chief v. United States, 519 U.S. 172, 180 (1997)).

Here, the rear-facing video was relevant to the question of Burton’s potential damages.

The video shows Doe’s collision with the side of the bus, including the force of impact, and was

the only video admitted that showed the actual collision. Thus, the video helped contextualize

the first video and also could have aided the jury in determining whether the collision injured

Burton as she claimed.

Furthermore, the simple fact that the rear-facing video did not show a significant collision

is not a reason for exclusion, even if the lack of a significant collision did prejudice Burton’s

-5- claim for damages.3 See id. Burton fails to demonstrate that the video was unfairly prejudicial,

that the prejudice substantially outweighed the probative value, and that reasonable jurists could

not have reached a different conclusion. See id.; Va. R. Evid. 2:403.

Burton correctly notes that “evidence of the absence of other injuries is not admissible in

a negligence action when timely objection to it is made” because “[s]uch evidence introduces

into the trial collateral issues, remote to the issue at trial, which would tend to distract, mislead,

and confuse the jury.” Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 335 (1991) (emphasis in

original). However, evidence is frequently “admissible for one purpose yet inadmissible for

another purpose.” Vanhook v. Commonwealth, 40 Va. App. 130, 135 (2003). Doe assured the

trial court before trial that the video would not be used to show absence of other injuries. When

Doe played the video for the jury, Doe did not comment on the passengers’ reactions, or lack

thereof, and Doe’s counsel did not comment on the passengers during his closing argument.4

Therefore, the trial court did not abuse its discretion in permitting Doe to introduce the

rear-facing video. See Williams, 71 Va. App. at 487.

3 In her brief to this Court on appeal, Burton argues that the jury would inherently use the video for an improper purpose like the effect of the collision on the other passengers. Burton’s counsel could have requested the trial court give a limiting instruction to the jury, but Burton did not make any such request for a limiting instruction. See Rule 5A:18. 4 Burton asserts, “Clearly, Defense Counsel was referring to ‘all’ persons in both edited videos and violated the exclusionary rule.” Burton contends that Doe’s closing statement clearly referred to the other passengers, but Burton did not object to Doe’s closing statement. Nonetheless, a review of the passage makes clear that Doe was not referring to the passengers, but rather to the videos showing what did, or did not, happen to Burton. In his closing argument, Doe’s counsel argued that Burton’s “body doesn’t even move.” Then he continued on to argue, “What is better than a video? That shows the vehicle striking the bus and shows what happened to the person inside it or what didn’t happen.” -6- II. The Verdict Form

Burton further argues, “The trial court committed reversible error when it rejected the

Plaintiff’s verdict form and accepted the Defendant’s verdict form, thus contradicting the agreed

upon Jury Instructions 7 and 11.”5

“The elements of an action in negligence are a legal duty on the part of the defendant,

breach of that duty, and a showing that such breach was the proximate cause of injury, resulting

in damage to the plaintiff.” Al-Saray v. Furr, 304 Va. 19, 28 (2025) (quoting Blue Ridge Serv.

Corp. v. Saxon Shoes, Inc., 271 Va. 206, 218 (2006)). Here, Doe admitted liability.

“[I]n the context of an automobile accident case, an admission of liability relieves the

plaintiff of the burden of proving that the defendant was negligent and that defendant’s

negligence was a proximate cause of the accident.” Gilliam v. Immel, 293 Va. 18, 26 n.7 (2017).

“An admission of liability, however, does not admit compensable damage. Even a finding of

liability does not require a finding of some compensable damage.” Id.; see also Shumate v.

Mitchell, 296 Va. 532, 550 (2018) (noting plaintiff “had the burden of proving her damages by a

preponderance of the evidence”).

The trial court instructed the jury on Doe’s admission of liability. The instructions given

to the jury included Instruction No. 7: “The Defendant has admitted that he is liable for any

injury the Plaintiff received from the accident. Therefore, the only issue that you have to decide

is the amount of damages, if any, the Plaintiff is entitled to recover.” The jury was instructed

that Burton was entitled to recover and that it was Burton’s burden to prove the amount of

damages, if any.

Furthermore, the verdict form stated, “We, the jury, on the issues joined, find for

Defendant.” (Emphasis added). The “issue[] joined” was the issue of damages, and the verdict

5 Internal references in appellant’s brief removed for clarity. -7- form specifically allowed the jury to find for John Doe—or Burton—on that issue. Thus, the

jury was properly instructed on the sole issue before it, and “[j]uries are presumed to follow their

instructions.” Davison v. Commonwealth, 69 Va. App. 321, 331 (2018).

CONCLUSION

For all of the foregoing reasons, we do not disturb the circuit court’s judgment.

Affirmed.

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