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JOHNSON, et al.



November 5, 1999

Record No. 982606





Thomas H. Wood, Judge

Present: All the Justices


Plaintiffs Marlon E. Johnson and Kaheen
Sandridge filed separate actions against defendant Carla M.
Campbell seeking recovery of damages as the result of personal
injuries allegedly received in a motor vehicle accident. In
virtually identical motions for judgment, consolidated for
hearing below, the plaintiffs alleged they were injured while
passengers in a motor vehicle negligently operated by defendant
that left a highway in Augusta County shortly after midnight on
August 13, 1997, and collided with a tree.

Responding, the defendant filed a grounds of
defense, counterclaim, and motion to dismiss in each action. The
plaintiffs filed grounds of defense and demurrers to the

In the counterclaims, defendant made the
following allegations. During the hours preceding the accident,
she participated with a group of young persons, including the
plaintiffs, in a card game at a private residence. The rules of
the game required a player who "lost" to consume a
specific amount of beer.

Defendant was 17 years of age at the time and
several other participants also were minors. Plaintiffs Johnson
and Sandridge were 24 and 21 years of age respectively.

According to the allegations, the plaintiffs
"encouraged" the minors, including the defendant, to
consume beer and use marijuana, which they supplied to her, so
that defendant’s eyes became "red and she appeared to be
under the influence of alcohol." Subsequently, plaintiffs
"prevailed upon" defendant to drive her automobile with
the plaintiffs as passengers. At the time of the accident,
plaintiff Johnson "distracted her by making unwanted
physical contact," causing her to lose control of the

In the grounds of defense to the counterclaims
and in responses to requests for admissions, the plaintiffs
admitted they participated in the card game. However, they denied
encouraging defendant to participate and denied supplying her
with beer or marijuana.

In the motions to dismiss, the defendant
asserted that plaintiffs’ actions were barred because each
"plaintiff’s injury appears to arise as a consequence of his
voluntary participation in an illegal act."

Subsequently, after considering argument of
counsel on the issues raised in the pleadings, the trial court
dismissed the motions for judgment and the counterclaims. The
court concluded that the plaintiffs voluntarily participated with
defendant in a card game involving the consumption of alcohol by
all players, including the minor defendant. The court noted that
simple possession of alcohol by a minor is unlawful. Code
? 4.1-305(A). The court also noted that plaintiffs rode
voluntarily with defendant on a trip for their mutual benefit
after she had consumed alcohol, and that no person under the age
of 21 may lawfully operate a motor vehicle after she has consumed
any alcohol, Code ? 18.2-266.1(A).

The trial court decided that violations of the
foregoing statutes by a minor are acts of delinquency and that,
by voluntarily participating with defendant in the commission of
these acts, plaintiffs were guilty of contributing to her
delinquency in violation of Code ? 18.2-371. And, the trial
court ruled as a matter of law that there was a "causal
connection" between the illegal conduct and the accident
requiring dismissal of the actions.

Upon the counterclaims, the trial court
concluded that defendant’s allegations show "she voluntarily
operated a motor vehicle after consuming enough alcohol and
marijuana to be a contributing cause" of the accident, and
that "[t]his amounts to assumption of risk as a matter of

The trial court employed an odd procedure; it
treated the plaintiffs’ demurrers to the counterclaims as motions
to dismiss and the defendant’s motions to dismiss as motions for
summary judgment. Nevertheless, even though the procedure below
was unusual, we can reach the merits of the appeal.

The primary appellate issue is whether the
trial court erred in ruling that any illegal conduct in which the
plaintiffs may have participated was a proximate cause of the
alleged injuries as a matter of law.

Virginia permits the employment of the
so-called "illegality" defense, which is based on the
principle that a party who consents to and participates in an
illegal act cannot recover damages from other participants for
the consequences of that act. Lee v. Nationwide Mut. Ins. Co.,
255 Va. 279, 282, 497 S.E.2d 328, 329 (1998); Zysk v. Zysk,
239 Va. 32, 34, 404 S.E.2d 721, 722 (1990); Miller v. Bennett,
190 Va. 162, 164-65, 56 S.E.2d 217, 218 (1949). The consent must
be "freely given without fraud or duress." Zysk,
239 Va. at 34, 404 S.E.2d at 722. The main premise for the rule
is "the idea that courts will not assist the participant in
an illegal act who seeks to profit from the act’s
commission." Id.

Repeatedly, this Court has insisted that,
before the defense can be successful, a causal relationship must
be established between participation in the illegal act and the
injuries or damage claimed. For example, in Lee, in which
we affirmed the trial court’s enforcement of the defense and in
which the requirement of causation was not an appellate issue, we
noted that the trial court held that the plaintiff voluntarily
consented to participation in the illegal act that
"resulted" in his injuries. 255 Va. at 282, 497 S.E.2d
at 329.

In Godbolt v. Brawley, 250 Va. 467, 463
S.E.2d 657 (1995), we discussed the illegality defense, although
the case was decided on other issues. We said that the
participant’s intentional criminal act was not "the direct
cause" of his injury and that the facts of Godbolt
differed from the facts in cases like Zysk and Miller
in which there was a direct cause-and-effect link. Godbolt,
250 Va. at 472, 463 S.E.2d at 660.

In Miller, the Court said that, when the
illegality defense is applied in tort actions, the consent or
participation in an unlawful act by plaintiff precludes recovery
for injuries sustained "as a result of that act." 190
Va. at 165, 56 S.E.2d at 219.

We emphasize the requirement of direct
causation, which the trial court recognized, because defendant on
appeal argues that the injury need not be a proximate result of
the illegal act. Instead, defendant contends, the injury merely
must be "an ultimate consequence" of the plaintiff’s
voluntary illegal acts. The defendant is wrong, whatever a
standard of "ultimate consequence" may mean, for the
reasons we have just outlined.

Turning to the question whether any unlawful
conduct of the plaintiffs was a proximate cause of their alleged
injuries as a matter of law, we conclude that the trial court
erred in so ruling.

As a preliminary matter, we will assume without
deciding that, contrary to the plaintiffs’ contention, the
requisite level of "participatory" illegal conduct by
plaintiffs is present. At this stage of the proceedings, the
facts are in dispute concerning whether the plaintiffs merely
were present in the defendant’s company or whether they bought
alcohol for defendant, supplied alcohol to her, encouraged her to
consume alcohol, or persuaded her to drive a motor vehicle. This
issue must be decided upon a full development of the facts, but
we will give the defendant the benefit of the doubt on this issue
at this juncture of the cases.

Given the facts developed thus far, however,
many of which are disputed, a jury question has been presented on
the issue of proximate cause. For example, furnishing alcohol to
defendant may be too remote an event to constitute proximate
cause of the plaintiffs’ injuries. See Williamson v.
The Old Brogue, Inc.
, 232 Va. 350, 353, 350 S.E.2d 621, 623
(1986) (individuals, drunk or sober, responsible for own torts
and drinking intoxicant, not furnishing it, is proximate cause of
injury). Indeed, the motions for judgment did not claim that
defendant’s alcohol consumption caused the accident; thus, at
this stage of the proceedings, the trial court erred in making a
causal connection between defendant’s drinking and the accident.
Also, if plaintiff Johnson distracted defendant "by making
unwanted physical contact," as alleged, there is the factual
question whether plaintiffs’ prior illegal acts directly caused
their alleged injuries. Consequently, we hold that the trial
court should not have dismissed the motions for judgment.

Finally, defendant has assigned cross-error.
She claims the trial court erred in dismissing the counterclaims.
We agree. Even if the defendant drove the vehicle after using
drugs and alcohol, as she alleges, and thus may have assumed the
risk of injury, the question remains whether that conduct was a
proximate cause of the accident in view of the disputed facts
about what actually caused her to lose control of the vehicle. In
other words, may a defendant assume the risk of "unwanted
physical contact" by driving after consuming intoxicants?

Thus, the judgments of the trial court in these
two cases will be reversed and the cases will be remanded for
further proceedings on the motions for judgment and the

Reversed and remanded.