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ALFONSO, et al.



April 16, 1999
Record No. 981333




LeRoy F. Millette, Jr., Judge
Present: All the Justices

In this appeal of a judgment in favor of a
plaintiff in a negligence action, we consider whether the trial
court erred in instructing the jury on the issue of willful and
wanton negligence.

On November 23, 1994, shortly before midnight,
Anthony Manuel Alfonso was operating a tractor-trailer owned by
Schneider Specialized Carriers, Inc. He was proceeding in one of
three northbound lanes on Interstate Route 95 in Prince William
County on a "very dark" stretch of roadway. The truck
stalled and, although Alfonso could not restart the engine, he
was able to steer the truck into the right-hand lane of the
highway near a rest area.

About the same time, Darlene Robinson was
operating a passenger van at a speed of approximately 55-60 miles
per hour in the right-hand lane of the highway. Her van collided
with the rear of Alfonso’s trailer, and Robinson was
seriously injured in the accident.

Robinson filed a motion for judgment against
Alfonso and Schneider Specialized Carriers, Inc. (collectively,
Schneider), seeking damages for her injuries. In her amended
motion for judgment, she alleged that Alfonso negligently failed
to perform certain statutory duties placed on the driver of a
disabled motor vehicle. In Count I, Robinson alleged that Alfonso
negligently failed to activate the truck’s flashing hazard lights
and to use warning flares or reflective triangles as required by
state and federal regulations. In Count II, Robinson alleged that
Alfonso’s actions constituted willful and wanton negligence
and exhibited a total disregard for the safety of the traveling
public. In its grounds of defense, Schneider alleged that
Robinson was guilty of contributory negligence.

Prior to a jury trial, Schneider admitted that
Alfonso was guilty of simple negligence in failing to place
reflective triangles behind the disabled truck. At trial,
Robinson and Michelle Annette Andrus, who was driving directly
behind Robinson’s van prior to the collision, testified that no
flares or reflective triangles had been placed in the roadway
behind the truck before the collision. They each also stated that
while Alfonso’s truck had the usual "running
lights" on prior to the accident, the truck’s flashing
hazard lights were not activated. Trooper G.R. Austin of the
Virginia State Police, who arrived at the accident scene about
five minutes after the collision, testified that the truck’s
hazard lights had not been activated at the time he arrived.

Both Robinson and Andrus stated that they had
seen the truck from about a quarter-mile or a half-mile away, but
that they thought the truck was moving. Robinson testified that
she did not realize the truck was stopped until she was "on
top of it." She explained that she tried to avoid the
collision by applying her brakes and swerving to the left, but
that she was unable to get around the truck.

Andrus testified that she did not realize the
truck was stopped until the Robinson van collided with it. After
the accident, Andrus stopped to assist the occupants of
Robinson’s van. She observed Alfonso return from the rest
area about 10 to 15 minutes after the accident.

Alfonso testified that when the disabled truck
came to a stop, he unsuccessfully tried to send a message to his
employer on the truck’s computer that the truck needed to be
towed from the highway. Alfonso then left the truck and ran about
100 yards to the rest area to use a telephone to call for
assistance. Although he had reflective triangles in his cab,
Alfonso did not place them behind the truck. He testified that he
thought he could run to the rest area, summon help, and return to
the truck within ten minutes to set out the triangles.

Alfonso stated that he had activated the
truck’s flashing hazard lights before the truck stalled,
because traffic in the area had temporarily stopped due to road
construction. He testified that the truck’s
"flashers" were still on when he left the truck to run
to the rest area. As he was returning from the rest area after
placing the telephone call, Alfonso heard Robinson’s van
collide with his truck. Alfonso estimated that he had been away
from the truck for three to five minutes.

On cross-examination, Alfonso testified that he
had attended eight weeks of training classes in 1990 in order to
work as an interstate truck driver, and that he received further
training from his employer later that year. Alfonso stated that
he learned from his training classes that the deployment of
warning flares or reflective triangles was "the first thing
you should do" after securing a truck that had become
disabled. He knew that the purpose of the safety triangles was
"to warn people who are coming up from behind and let them
know that you’re stopped." He also stated that he was
aware that federal regulations governing interstate trucking
require drivers to place flares or reflective triangles at
specified distances behind a disabled truck "as soon as
possible, but in any event within ten minutes."

Both at the end of the plaintiff’s case
and at the conclusion of all the evidence, Schneider moved to
strike Robinson’s evidence on Count II, arguing that
Alfonso’s conduct did not rise to the level of willful and
wanton negligence. The trial court denied both motions to strike
the evidence and submitted the case to the jury on the issues of
proximate causation, willful and wanton negligence, and
contributory negligence.

A special verdict form [1] returned
by the jury contained three findings: 1) that Alfonso’s
negligence was a proximate cause of the accident; 2) that
Alfonso’s negligence was willful and wanton; and 3) that
Robinson was not guilty of contributory negligence. The jury
awarded damages in favor of Robinson in the amount of $550,000,
plus interest from the date of the accident. On the
defendants’ motion, the court reduced the award of damages
to $450,000, the amount requested in the amended motion for
judgment. The court denied Alfonso’s motion to set aside the
verdict and entered final judgment in favor of Robinson in that
amount, plus interest. This appeal followed.

Schneider argues that the trial court erred in
submitting the issue of willful and wanton negligence to the
jury. He contends that Alfonso’s violation of a "motor
vehicle safety statute" did not constitute willful and
wanton negligence, and that his conduct was not egregious and did
not manifest a complete disregard for the safety of others.
Schneider asserts that Alfonso’s actions in trying to
contact his employer by computer, and in running to the nearby
rest area to obtain assistance by telephone, demonstrate that
Alfonso attempted to remove the truck from the highway as soon as
possible out of concern for the safety of others.

In response, Robinson argues that the evidence
concerning Alfonso’s conduct presented a factual question of
willful and wanton negligence that was properly submitted to the
jury. Robinson contends that the evidence supported a conclusion
that Alfonso acted with conscious disregard for the rights of
other drivers on the highway, or with reckless indifference to
the knowledge that his conduct probably would cause injury to
another driver. We agree with Robinson’s argument.

Willful and wanton negligence is action taken
in conscious disregard of another’s rights, or with reckless
indifference to consequences that the defendant is aware, from
his knowledge of existing circumstances and conditions, would
probably result from his conduct and cause injury to another. Harris
v. Harman
, 253 Va. 336, 340-41, 486 S.E.2d 99, 101 (1997); Clohessy
v. Weiler
, 250 Va. 249, 252, 462 S.E.2d 94, 96 (1995); Griffin
v. Shively
, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984).
Each case raising an issue of willful and wanton negligence must
be evaluated on its own facts, and a defendant’s entire
conduct must be considered in determining whether his actions or
omissions present such a question for a jury’s
determination. Clohessy, 250 Va. at 253, 462 S.E.2d at 97;
Huffman v. Love, 245 Va. 311, 315-16, 427 S.E.2d 357,
360-61 (1993).

Willful and wanton negligence, unlike gross or
ordinary negligence, requires an actual or constructive
consciousness that injury will result from the act done or
omitted. Infant C. v. Boy Scouts of America, Inc., 239 Va.
572, 580-81, 391 S.E.2d 322, 327 (1990); see Wolfe v.
, 241 Va. 462, 465, 403 S.E.2d 338, 339-40 (1991); Boward
v. Leftwich
, 197 Va. 227, 231, 89 S.E.2d 32, 35 (1955).
However, ill will is not a necessary element of willful and
wanton negligence. Infant C., 239 Va. at 581, 391 S.E.2d
at 327; Baker v. Marcus, 201 Va. 905, 909, 114 S.E.2d 617,
621 (1960).

Schneider is correct in its contention that the
intentional violation of a traffic law, without more, will not
support a finding of willful and wanton negligence. See Harris,
253 Va. at 341, 486 S.E.2d at 102; Baker, 201 Va. at 910,
114 S.E.2d at 621-22. We disagree, however, with Schneider’s
further assertion that our prior decisions require a conclusion
that Alfonso was not guilty of willful and wanton negligence as a
matter of law.

Schneider’s argument relies primarily on our
holdings in Harris and Clohessy.
[2] In Harris and Clohessy, we concluded as a
matter of law that the defendant’s conduct did not rise to
the level of willful and wanton negligence. In Harris, the
evidence showed that the defendant "tailgated" the
plaintiff’s vehicle while travelling at a speed between 10
and 30 miles per hour in excess of "the 30 m.p.h. speed
which was safe for that stretch of road." 253 Va. at 338,
486 S.E.2d at 100. In Clohessy, the record demonstrated
that the defendant’s vehicle hit a pedestrian walking in the
street as the defendant was driving at night without headlights
and with a fogged windshield while operating her vehicle about
ten miles in excess of the speed limit. 250 Va. at 251, 462
S.E.2d at 96.

The defendants’ conduct in Harris
and Clohessy was not as egregious as Alfonso’s
conduct. A critical characteristic distinguishing the present
case from those two cases is that Alfonso was a professional
driver who had received specialized safety training warning
against the very omissions he made prior to the accident. As
stated above, Alfonso admitted at trial that he was instructed
that the deployment of safety flares and reflective triangles was
the first act that should be taken after securing a disabled
truck. He knew that the purpose of such safety devices was to
warn motorists that they were approaching a stopped vehicle.
Despite this training and knowledge, Alfonso consciously elected
to leave the disabled truck in a travel lane of an interstate
highway without placing any warning devices behind it.

Such evidence that a defendant had prior
knowledge or notice that his actions or omissions would likely
cause injury to others is a significant factor in considering
issues of willful and wanton negligence. See e.g., Huffman
v. Love
, 245 Va. at 315, 427 S.E.2d at 360; Booth v.
, 236 Va. 269, 270, 272-73, 374 S.E.2d 1, 2-3
(1988). In the present case, Alfonso’s prior knowledge was a
conceded fact that related directly to the specific circumstances
with which he was confronted on the night of the accident.

Alfonso’s knowledge and omissions were
factors to be considered in the context of the other evidence in
the case. The evidence stated above showed that the disabled
truck remained entirely on the traveled portion of the highway,
and that Alfonso left the truck unattended in nighttime traffic
in a "very dark" area where there were no light
fixtures and the speed limit was 55 miles per hour. Also, viewing
the evidence in the light most favorable to the plaintiff,
Alfonso did not activate his hazard lights before leaving the
vehicle unattended, and he did not return to the truck until 10
to 15 minutes after leaving it on the highway.

We conclude that the cumulative evidence of
Alfonso’s knowledge and conduct raised a question of willful
and wanton negligence for the jury’s determination. Thus,
the trial court did not err in instructing the jury on this

For these reasons, we will affirm the trial
court’s judgment.





[1] Although the use of a special verdict
form is not at issue in this appeal, we note that this Court has
not sanctioned the use of special verdicts in negligence actions.
See Johnson v. Smith, 241 Va. 396, 401, 403 S.E.2d
685, 688 (1991).

[2] Schneider also relies on our holding
in Harris Motor Lines v. Green, 184 Va. 984, 37 S.E.2d 4
(1946). This reliance is misplaced, however, because we did not
decide an issue of willful and wanton negligence in Green.
There, the issue presented was whether the trial court erred in
instructing the jury on the doctrine of last clear chance. Id.
at 989, 37 S.E.2d at 5. We concluded that both drivers "were
guilty of such negligence as efficiently contributed to the
accident and which continued down to the time of the
accident" and, thus, that the doctrine of last clear chance
was inapplicable. Id. at 990-91, 37 S.E.2d at 6.

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