WEBB v. RIVERS


WEBB v. RIVERS


November 6, 1998
Record No. 980014

SIDNEY M. WEBB

v.

JASON W. RIVERS

Randall G. Johnson, Judge
Present: All the Justices

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
OPINION BY JUSTICE LEROY R. HASSELL, SR.


In this appeal, we consider whether the trial
court erred in striking the plaintiff’s claim for punitive
damages.

The plaintiff, Sidney M. Webb, filed his motion
for judgment against Jason W. Rivers. The plaintiff alleged that
he was injured in an automobile accident and that his injuries
were proximately caused by the defendant’s "carelessness,
recklessness and negligence." The plaintiff sought
compensatory and punitive damages.

The plaintiff produced the following evidence
at a jury trial. On May 3, 1995, the plaintiff was operating a
Chevrolet Blazer, and his wife and young daughter were
passengers. As the plaintiff, who was traveling on Hamilton
Street in the City of Richmond, drove through the intersection of
Hamilton and Grove Avenue, he observed a car driven by the
defendant. The defendant ignored a red light, drove through the
intersection, and his car collided with the plaintiff’s vehicle,
which rolled over and "came to rest on its roof."

Jacqueline Webb, the plaintiff’s wife,
testified that the defendant was driving his car at 90 m.p.h. The
legal speed limit at the intersection where the accident occurred
is 25 m.p.h.

Officer Walter P. Wilhelm, a Richmond police
officer who responded to the accident, testified that when he
arrived at the scene, the defendant was "entirely
intoxicated sitting behind the wheel of a wrecked
automobile." The defendant, whose car was on Grove Avenue,
told Officer Wilhelm that the defendant thought he was on the
Boulevard, another street in Richmond. The defendant also stated
that the time was 10:00 p.m. when it was actually 11:50 p.m.

Officer Wilhelm testified that "[i]t was
hard to understand anything [the defendant] said" and that
the defendant admitted that he had been drinking alcoholic
beverages that night. Officer Wilhelm described the defendant as
"very" drunk and that he had a very strong odor of
alcohol about his person. Officer Wilhelm testified that the
defendant was in a stupor because he was so drunk.

At 1:39 a.m. on May 4, 1995, about two hours
after the accident, a breath test indicated that the defendant
had a blood alcohol level of .21%. The blood alcohol level to
establish a rebuttable presumption of intoxication in Virginia at
that time was .08%. The defendant pled guilty to the charge of
driving under the influence.

The defendant made a motion to strike the
plaintiff’s claim of punitive damages after the plaintiff rested
his case. The trial court sustained the motion, and the case
proceeded to a jury which returned a verdict in favor of the
plaintiff and awarded him $350 in compensatory damages. The trial
court entered a judgment confirming the jury’s verdict. The
plaintiff appeals, challenging that portion of the trial court’s
judgment which sustained the defendant’s motion to strike the
plaintiff’s claim for punitive damages.

Code Sect.8.01-44.5 states in relevant part:

"In any action for personal injury or
death arising from the operation of a motor vehicle
. . . the finder of fact may, in its discretion, award
exemplary damages to the plaintiff if the evidence proves that
the defendant acted with malice toward the plaintiff or the
defendant’s conduct was so willful or wanton as to show a
conscious disregard for the rights of others.

"A defendant’s conduct shall be deemed
sufficiently willful or wanton as to show a conscious disregard
for the rights of others when the evidence proves that (i) when
the incident causing the injury or death occurred the defendant
had a blood alcohol concentration of 0.15 percent or more by
weight by volume (ii) at the time the defendant began, or during
the time he was, drinking alcohol, he knew that he was going to
operate a motor vehicle . . . and (iii) the defendant’s
intoxication was a proximate cause of the injury to or death of
the plaintiff."

The plaintiff argues that the trial court erred
by striking his statutory claim for punitive damages because he
believes that he proved each of the aforementioned statutory
elements. The defendant argues, however, that the plaintiff
failed to prove that "at the time the defendant began, or
during the time he was, drinking alcohol, he knew that he was
going to operate a motor vehicle . . . ." Id.

We agree with the defendant. Code
Sect.8.01-44.5 required that the plaintiff prove each of the
statutory elements contained therein. Here, the plaintiff failed
to produce any evidence that at the time the defendant began
drinking alcohol, or during the time he was drinking alcohol, the
defendant knew he was going to operate a motor vehicle. The
record is simply devoid of such evidence. Therefore, we hold that
the trial court correctly struck the plaintiff’s statutory claim
for punitive damages.

The plaintiff contends that even if he failed
to satisfy the requirements of Code Sect.8.01-44.5, he presented
sufficient evidence to support a common law claim for punitive
damages. The defendant, relying principally upon Puent v. Dickens,
245 Va. 217, 427 S.E.2d 340 (1993), responds that the plaintiff
failed to produce sufficient facts to support a common law claim
for punitive damages. We disagree with the defendant.

In Puent, Edward W. Dickens, who was
operating a pickup truck, collided with the rear of a car in
which Anne R. Puent was a passenger. Puent filed a motion for
judgment against Dickens, seeking compensatory and punitive
damages. According to Puent’s evidence, which was struck by the
trial court, Dickens had three drinks from a bottle of whiskey
within 60 to 75 minutes before the truck he was driving collided
with the car in which Puent was a passenger.

The car in which Puent was traveling had
stopped at a traffic light, and the car’s brake and rear lights
were lit. A witness testified that Dickens was driving very fast
and that apparently he did not apply his brakes before he
collided with the Puent car.

Immediately after the collision, Dickens
consumed another drink of whiskey as he sat in his truck. A short
time after the accident, a test of Dickens’ breath indicated that
his blood alcohol content was 0.24% by weight which raised the
presumption that he was intoxicated. Dickens subsequently pled
guilty to the charge of reckless driving.

In Puent, we observed that "in
order to create an issue of punitive damages where misconduct or
malice has not been shown, a plaintiff must show that the
defendant’s conduct was of ‘such recklessness or negligence as
evinces a conscious disregard of the rights of others.’" 245
Va. at 219, 427 S.E.2d at 342 (quoting Baker v. Marcus,
201 Va. 905, 909, 114 S.E.2d 617, 621 (1960)). We stated that the
evidence of record in Puent was insufficient to support an
award of punitive damages and, thus, we held that the trial court
properly struck the plaintiff’s evidence.

We hold that unlike the plaintiff in Puent,
Webb has established sufficient facts from which a jury may infer
that the defendant’s acts of recklessness or negligence evinced a
conscious disregard of the rights of others. Viewing the evidence
in the light most favorable to the plaintiff, the defendant was
traveling 90 m.p.h. in a residential neighborhood with a 25
m.p.h. speed limit, and he drove his car through a red light.
Additionally, the defendant had a blood alcohol content of .21%,
and he was so intoxicated that he did not know where he was, nor
did he know the time of night. Therefore, the trial court should
not have struck the plaintiff’s common law claim for punitive
damages.

We will affirm that portion of the trial
court’s judgment which held that the plaintiff failed to
establish a claim for punitive damages under Code Sect.8.01-44.5.
We will reverse that portion of the trial court’s order which
dismissed the plaintiff’s common law claim for punitive damages,
and we will remand this proceeding for a trial only on the
plaintiff’s common law punitive damages claim.

Affirmed in part, reversed in part, and
remanded
.

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