Home / Fulltext Opinions / Supreme Court of Virginia / LEE, ET AL. v. NATIONWIDE MUTUAL INSURANCE COMPANY



February 27, 1998
Record No. 970970





George E. Honts,
III, Judge

Present: All the

In this case, we
consider whether the trial court erred in holding as a matter of
law that the defense of illegality barred the claim for damages
of a 13-year-old boy rather than submitting to the jury the issue
of the boy's consent to the illegal act.

Late in the evening
of November 1, 1993, 13-year-old Roy James Lee locked his bedroom
door and left his house, apparently through his bedroom window.
His parents did not know he was gone. Lee went to the home of his
friend, William Randall Slate, a high school freshman who was 16
years old. Around 11:00 p.m., Lee called his girlfriend,
12-year-old Jessica Lee Fisher, and told her to take the keys to
her mother's car from the coffee table and meet Lee and Slate at
the basement door of her house. Fisher's mother had already gone
to bed.

Fisher changed her
clothes, got the keys, and met the boys as planned. She gave the
keys to Lee who, in turn, gave them to Slate. When the group
walked to Mrs. Fisher's car, they heard the motor running on a
neighbor's car parked nearby. They decided not to take Mrs.
Fisher's car at that time because they feared being discovered.
Instead, Lee and Slate unsuccessfully tried to take a motorized
bicycle parked nearby. The group then walked to Slate's house
where they stayed for about an hour.

When the three
youths returned to Fisher's house, the motor of the neighbor's
car was no longer running. Fisher got into the back seat of her
mother's car and Slate got in the driver's seat. To avoid the
possibility that Mrs. Fisher might hear the engine start, Lee
pushed the car some distance away from its parking place. Lee
then got into the front passenger's seat. For the next hour and a
half, Slate drove the group around the area in Mrs. Fisher's car.
Both Fisher and Lee knew that Slate had only a learner's driving

At some point,
Fisher asked Slate to return to her home, and he agreed to do so.
Around 2:00 a.m. on the return trip, Fisher noticed that Slate
was driving at a speed of between 40 and 45 m.p.h. and asked him
to slow down. She also observed a "loose gravel" sign.

About one hour
later, at 3:10 a.m., Virginia State Trooper Gene E. Ayers
received a call to investigate an accident on a portion of Route
605 that was under construction. The road at the accident
location was an unmarked gravel surface 15 feet wide with ditches
on both sides. When Trooper Ayers reached the accident scene, he
found 270 feet of wavy tire marks in the gravel leading to one of
the ditches. Mrs. Fisher's car was approximately 30 feet off the
road. Trooper Ayers found Fisher "in and out of
consciousness" in the back seat of the car. Lee was outside
the car, halfway between the car and the road. The temperature
was below freezing and some of the blood on both Lee and Fisher
had begun to freeze. Slate was not at the scene of the accident
when Ayers arrived.

Lee suffered severe
head injuries in the accident resulting in catastrophic,
permanent brain damage, and permanent disability.

Lee's mother, Debra
S. Lee, filed a motion for judgment against Slate on her own
behalf and on behalf of Lee as his next friend. Since Slate was
an uninsured motorist, Nationwide Mutual Insurance Company
(Nationwide), Debra Lee's uninsured motorist insurance carrier,
defended the action. Nationwide filed an answer and a special
plea asserting the defense of illegality. At trial, on motion by
Nationwide, the court struck Lee's evidence and held that, as a
matter of law, Lee freely and voluntarily, without coercion or
duress, consented to participation in the illegal act that
resulted in his injuries. The trial court entered judgment in
favor of Nationwide. Lee appeals, claiming the trial court erred
in its application of the illegality defense.

The illegality
defense is based on the principle that a party who consents to
and participates in an illegal act may not recover from other
participants for the consequences of that act.
v. Bennett
, 190 Va. 162, 164-65, 56 S.E.2d 217, 218
(1949). The defense will be applied to bar recovery if the
evidence shows that the plaintiff freely and voluntarily
consented to participation in the illegal act, without duress or
Trotter v. Okawa, 248 Va. 212,
216, 445 S.E.2d 121, 123-24 (1994). As with other defenses, the
party raising the defense has the burden to establish it.

While none of our
prior cases has involved the application of the defense of
illegality to acts of a person younger than 14 years of age, Lee
does not contend that the defense is unavailable in such cases.
Nor does Lee dispute that taking Mrs. Fisher's car without
permission was an illegal act. Rather, Lee asserts that the
evidence presented conflicting factual issues as to whether Lee
freely and voluntarily, without duress or coercion, consented to
participation in the illegal act, and, therefore, that the trial
court should have submitted resolution of these issues to the
jury rather than deciding them as a matter of law. In support of
his position, Lee argues that the trial court's error was based
on both its failure to apply a rebuttable evidentiary presumption
that a person between the ages of 7 and 14 is incapable of
consenting to an illegal act and its failure to consider the
evidence in the light most favorable to Lee. However, Lee's
position is not supported by either the record in this case or
the law of this Commonwealth.

Lee argues that
minors between the ages of 7 and 14 are afforded the protection
of certain rebuttable presumptions of incapacity when charged
with criminal culpability, citing
Law v. Commonwealth,
75 Va. 885, 889 (1881), or contributory negligence, citing
v. Dewhirst
, 240 Va. 266, 268, 396 S.E.2d 840, 842
(1990). The trial court, according to Lee, either should have
applied those presumptions here or created and applied an ad hoc
rebuttable presumption based on the circumstances of this case.
We disagree.

Neither of the above
standards is applicable to a determination of whether a person
has engaged in an illegal act, for purposes of the illegality
defense. That determination is an objective inquiry.
Zysk v. Zysk, 239 Va. 32, 35, 404 S.E.2d
721, 722 (1990). However, whether the defense will be applied
requires more than a simple showing that the plaintiff committed
the illegal act. As we have said, the defendant must also prove
that the plaintiff consented to the commission of the illegal act
and engaged in it, freely and voluntarily, without duress or
coercion. This evidentiary burden necessarily includes
consideration of the maturity, intelligence, and mental capacity
of the plaintiff, regardless of age. Given this burden of proof,
the rebuttable presumption suggested by Lee would serve no
additional purpose and would provide no additional protection to
the minor plaintiff. Thus, there is no legal basis or persuasive
rationale for imposing the type of presumption suggested by Lee,
and the trial court correctly declined to do so.

We now turn to Lee's
assertion that the evidence of voluntary consent, duress, and
coercion was in conflict, and therefore, the trial court should
have submitted the issue to the jury. Viewing the evidence in the
light most favorable to Lee, as we must when reviewing a motion
to strike,
Austin v. Shoney's, Inc., 254
Va. 134, 135, 486 S.E.2d 285, 285 (1997);
Meador v.
, 214 Va. 759, 761, 204 S.E.2d 285, 287
(1974), we conclude that the trial court did not err in holding
that reasonable persons could not disagree that Lee freely and
voluntarily, without duress or coercion, consented to his
participation in an illegal act.

The record shows
that Lee was capable of understanding the nature of his acts and
had the ability to make choices about his behavior. At the time
of the illegal act, Lee was almost 14 years old. He performed at
an average level in school and was capable of better performance.
His behavior at school was average, and he played on organized
sports teams. He complied with his parents' directions not to
ride a motorized bicycle under certain circumstances. While
described as a "follower" in his relationship with
Slate, there is no evidence to support a finding that Lee was
incapable of withholding consent or making other choices
regarding his behavior.

With regard to the
incident in question, the record shows that, outside the presence
of Slate, Lee actively planned to take Mrs. Fisher's car and
referred to the plan as "steal[ing]" the car when
talking to Fisher. He told Fisher to take the keys, locked his
bedroom door to avoid detection, and left his home through his
bedroom window. He turned the keys over to Slate. Lee pushed the
car away from Fisher's house to avoid detection and, according to
Fisher's testimony, during the ride in Mrs. Fisher's car, never
tried to stop Slate, alter the way Slate was driving, or get out
of the car.

Lee argues that his
actions were taken, not freely and voluntarily, but under duress
and coercion by Slate. Lee relies on Fisher's testimony that
Slate was the "leader" and Lee the
"follower," that Lee wanted to impress Slate, that Lee
would not get into trouble unless Slate was present, and that Lee
would "act differently" when Slate was around. Lee also
relies on Fisher's testimony that when Lee called her to plan the
taking of her mother's car, she heard Slate in the background
directing Lee to "tell me if we didn't take Mom's car, then
they were going to bust out the windshield."

This evidence
suggests that when Lee was with Slate he engaged in activity
which he might not have undertaken by himself or with others.
This evidence does not, however, support a conclusion that the
change in Lee's demeanor or his actions were the result of
coercion or duress by Slate, or that Lee had no control over his
actions when he was with Slate. Rather, the evidence suggests
that Lee engaged in actions which he believed would impress Slate
and keep Slate as his friend. No expert evidence was presented
that Slate's relationship with or influence on Lee in some way
deprived Lee of his ability to make choices about his actions
either on the night in question or at any other time. Therefore,
we conclude that, based on the record, the trial court was
correct when it decided that reasonable persons could not
disagree that Lee consented to his participation in an illegal
act and that the illegality defense barred his recovery for
injuries sustained as a result of that illegal act.

Accordingly, the
judgment of the trial court will be affirmed.







[1] Lee has no memory of the
accident or the events surrounding it.