A state law that says it is not negligent to fail to restrain a child in a vehicle does not abrogate the common law duty to protect the child, a divided Supreme Court of Virginia holds today.
Four-year-old Hannah Leigh Evans was seriously injured in a head-on collision after her father put her in a portable foam seat on the floorboard of his 1972 pickup. Hannah sued her father through her mother, but the trial judge in Bedford County ruled that Virginia Code § 46.2-1095 barred the claim.
The statute requires children younger than eight to be restrained but says, “A violation of this section shall not constitute negligence.”
Justice Donald W. Lemons said in Evans v. Evans that the limitation must be read in conjunction with Code § 46.2-1098, which establishes the $50 civil penalty for a violation and says that a violation “shall not constitute negligence per se.” The legislature meant “negligence per se” in both provisions, so that the common law action remains, he concluded.
Justice Cynthia D. Kinser scoffed at the conclusion. The legislature knows very well the distinction between “negligence” and “negligence per se” and has used the two terms of art with precision in other parts of the code, she said in her dissent.
Concurring, Justice William C. Mims took a common-sense approach. In adopting the child-restraint law, the General Assembly intended to add minimal statutory protection to the common law and not “to replace entirely the tort remedy” for injured children, he said.
By Alan Cooper