Nobody Saw How the Crash Happened. Can You Still Win a Virginia Injury Case?
Two cars meet head-on. One person is killed, another is gravely hurt, and the only people who could say what happened are dead or cannot remember. Everyone agrees a terrible thing occurred. Nobody can say why.
That is close to routine in the worst crashes, because the worst crashes kill or concuss the witnesses. On August 19, 2026, the federal appeals court that covers Virginia explained what Virginia law demands in exactly that situation.
What happened
On the afternoon of April 29, 2019, Dr. Sung-Chul Jung and Ms. Hyo Jung Kim, two South Korean citizens visiting the United States for a conference, hailed a Red Top taxicab in Virginia. The driver was Amoah Gyimah.
Around 4:00 p.m., as the cab traveled north on the George Washington Memorial Parkway, it collided head-on with a southbound Volkswagen Beetle driven by Eric Jewett.
Gyimah was killed. So was Ms. Kim. Dr. Jung survived, but a serious head injury erased his memory of the collision and of an indeterminate stretch of time before it. Jewett survived and also remembers nothing. One witness saw the collision, but none could say which vehicle crossed the center line, when it crossed, or how much time remained before impact.
The United States Park Police found no skid marks on the northbound side. Data from the cab's airbag control module showed Gyimah traveling between 50 and 53 miles per hour in a posted 45-mile-per-hour zone five seconds before impact, a speed the report itself called "moving with traffic on the parkway and not excessive." His toxicology was negative. Investigators concluded that Jewett crossed into oncoming traffic.
Dr. Jung and the administrator of Ms. Kim's estate sued anyway, bringing negligence claims against Gyimah's estate and three theories against Fairfax Taxi, Inc., which does business as Red Top Cab.
You can read the decision yourself: O'Connor v. Fairfax Taxi, Inc., Nos. 25-1699 & 25-1702 (4th Cir. Aug. 19, 2026), a published opinion by Judge Richardson, joined by Judges Quattlebaum and Rushing.
The rule that decided the case
Virginia law does not let a jury infer carelessness just because a crash occurred. As the Supreme Court of Virginia put it more than sixty years ago, negligence "cannot be presumed from the mere happening of an accident." The injured person carries the burden, and that burden has a specific shape: he must show why and how the crash happened. If the answer is left to guesswork, he cannot recover.
That is narrower than it sounds: a plaintiff need not prove his case beyond doubt, but he must offer real evidence of how the crash occurred, rather than asking a jury to work backward from the fact that someone was badly hurt.
The families offered two theories. Neither reached a jury.
The cell phone. Dr. Jung remembered seeing Gyimah holding a phone, but could not say whether he was using it, or place the memory in time: he did not know whether it came seconds or minutes before impact, and his last recollection put the cab in a different lane than the one where the collision happened. A witness saw a phone in Gyimah's lap afterward, but its screen was dark. As the trial court put it, a phone on a driver's leg after a violent crash is not evidence he was using it before.
The absence of braking. The families argued that because there were no skid marks and nobody heard tires screech, Gyimah must have failed to react. The court rejected that inference, relying on the Supreme Court of Virginia's 2021 decision in Lucas v. Riverhill Poultry, Inc., which had refused nearly identical reasoning.
The problem is arithmetic. Failing to brake is negligent only if the driver had time to brake. Two cars approaching at 45 miles per hour close the gap between them at 132 feet per second, and Virginia's statutory tables put an average driver's perception-and-reaction interval at a second and a half. Roughly 198 feet would vanish before either driver could begin to respond. Everything therefore turned on one missing fact: how far apart were the cars when the Volkswagen crossed the double-yellow line? Nobody knew, so a jury could not tell whether Gyimah had a second and a half to react or a tenth of a second.
Why the claim against the cab company fell too
The families also sued Fairfax Taxi three ways: as the driver's employer, on the theory that operating a taxi carries a duty it could not hand off to a contractor, and as a joint venturer.
All three shared a weakness. Each was derivative, meaning each depended on Gyimah having been negligent in the first place. Once there was no triable claim against the driver, there was nothing for the company to answer for, and the court never had to decide whether Gyimah was an employee or an independent contractor.
That cuts both ways. Reaching the company behind the driver is often the difference between a nominal claim and a real one, because companies carry far larger policies. But that path runs through the driver's conduct: the proof you build against the driver is what makes the corporate claim worth anything.
What this means if you or your family were hurt in a Virginia crash
The lesson is not that unwitnessed crashes are hopeless. It is that they are won on evidence that has to be collected, and much of it starts disappearing immediately.
- Event data recorders. Modern vehicles record speed, braking, throttle and steering in the seconds before impact. That record sits in the car itself, and it generally goes away when the car is repaired or scrapped. Whether it is worth chasing depends on the case, but in a crash where nobody can say how it happened, it is at least worth knowing whether the vehicles still exist.
- Phone records, not phone sightings. Seeing a phone proves nothing. Carrier and device records show whether it was in use, and when. They are not kept forever.
- Scene and vehicle evidence. Roadway measurements, debris fields and crush patterns are what an expert would later use to calculate positions and distances. Once the scene is cleared and the cars are gone, so is that chance.
- Experts, when a case actually calls for one. The families' reconstructionist was ultimately kept out of this case. Most crash cases never need one. But in the most extreme of cases, it may be worthwhile to hire a crash reconstructionist early, because expert work has to be started and disclosed on a schedule that is set long before trial.
There is also the question of who pays. Investigators here concluded the other driver crossed the center line. When the driver at fault is not the one whose car you were riding in, recovery usually runs through that driver's liability policy, and, where it is too small for a catastrophic injury or a death, through uninsured and underinsured motorist coverage. A head injury like Dr. Jung's brings its own proof problems, which we take up in our post on normal imaging in concussion claims.
The clock is the other enemy. Virginia gives a family two years from the date of death to sue, and only the estate's personal representative can bring the claim, which itself takes time to arrange.
Wrongful death in Maryland, D.C., and Virginia
| Maryland | District of Columbia | Virginia | |
|---|---|---|---|
| Deadline to file a wrongful death claim | 3 years from the date of death (Cts. & Jud. Proc. § 3-904(g)(1)) | 2 years from the date of death (D.C. Code § 16-2702) | 2 years from the date of death (Va. Code § 8.01-244(B)) |
| Who brings the claim | Filed for the benefit of the statutory beneficiaries, who are named as use plaintiffs | The personal representative of the estate, in that representative's name (D.C. Code § 16-2702) | The personal representative of the estate, in that representative's name (Va. Code § 8.01-50(C)) |
| Who the claim is for | The spouse, parent, and child of the person who died (Cts. & Jud. Proc. § 3-904) | The surviving spouse or domestic partner and next of kin (D.C. Code § 16-2701) | The surviving spouse, children, and grandchildren first; other relatives only if none survive (Va. Code § 8.01-53) |
| Fault rule that can bar recovery | All three follow contributory negligence: a person even slightly at fault can recover nothing | ||
Two notes. Virginia and the District both run from the date of death, not the date of the crash, and both are a year shorter than Maryland. And Maryland is structurally different: the claim belongs to the family members rather than the estate's representative, so naming the right people matters, as we explain in our post on why being named in a Maryland wrongful death lawsuit isn't enough.
You can read the provisions yourself: Va. Code § 8.01-244, Va. Code § 8.01-50, Va. Code § 8.01-53, D.C. Code § 16-2702, and Md. Cts. & Jud. Proc. § 3-904.
One more warning across all three: they still follow contributory negligence, so a plaintiff even slightly at fault can recover nothing. See our primer on contributory negligence in D.C., Maryland, and Virginia. It is another reason pinning down how a crash happened matters so much.
If this happened to you or someone in your family
If you lost a family member or were seriously injured in a crash and have been told there is not enough evidence to prove what happened, that deserves a hard look before anyone accepts it. Often the proof still exists somewhere and simply has to be pursued before it is lost.
Call Posey Lebowitz PLLC at (202) 524-0123, or use our contact form to set up a free consultation.
This is general information, not legal advice about your case.
