Home / Fulltext Opinions / Supreme Court of Virginia / Mark Brian Harris v. Julian David Harman, et al. (59908)

Mark Brian Harris v. Julian David Harman, et al. (59908)


April 18, 1997
Record No. 961774


B.A. Davis, III, Judge
Present: All the Justices


This appeal arises from an automobile accident involving two
vehicles. On August 1, 1992, Julian David Harman, Jr., was
driving Tracy Lee Sweeney and two of his friends home from the
Franklin County Speedway about 11:00 p.m. when a second vehicle,
driven by Mark Brian Harris, approached Harman’s vehicle from the
rear. For some distance, Harris "tailgated" the Harman
vehicle; that is, the Harris vehicle "would get ‘real
close’" to the rear of the Harman vehicle. The two vehicles
were traveling at speeds estimated at 40 to 60 m.p.h., well above
the 30 m.p.h. speed which was safe for that stretch of road. As
the vehicles approached a sharp curve, Harman glanced in his
rearview mirror to check Harris’ position. When Harman turned his
eyes back to the road, his truck was almost in the curve. He
applied the brakes, but lost control of the vehicle. The vehicle
slid off the road and down into a creek embankment. Harris’ car
followed Harman’s vehicle off the road at approximately the same
point. There was no contact between the vehicles, but Harman and
Sweeney, among others, were injured in the accident.

Sweeney filed a motion for judgment against Harman and Harris
seeking recovery for his injuries. Harman sought recovery for his
injuries in a motion for judgment he filed against Harris. The
two cases were consolidated. The jury returned a verdict in favor
of Sweeney and against Harman and Harris jointly and severally
for $25,000, and a verdict against Harris in favor of Harman for

Harris appealed both judgments maintaining that, as a matter
of law, his actions were not a proximate cause of the accident
and Harman was contributorially negligent. Harris also challenged
the verdicts as inconsistent. Harman assigned cross-error to the
trial court’s refusal to instruct the jury on Harris’ willful and
wanton negligence.


Proximate Cause

Harris argues that he is entitled to final judgment in both
actions because the evidence established, as a matter of law,
that his actions were not a proximate cause of Harman’s vehicle
skidding off the road. Harris does not challenge the jury’s
determination that his actions were negligent, but argues that
the evidence shows that Harman’s admitted excessive speed and
inattention were the sole proximate cause of the accident as a
matter of law. We disagree.

Harman testified that just before the accident,
he was "[n]ot focusing on what [he] was doing" because
he was paying attention to the Harris vehicle. He also testified
that Harris’ actions frightened, scared, and distracted him. The
state trooper investigating the accident testified that when he
interviewed Harman two months after the accident, Harman stated
that he "didn’t pay much attention to the vehicle being
behind him." The conflicting testimony in this record
presents a classic jury issue of whether Harris’ tailgating was a
proximate cause of the accident, and the trial court was correct
in submitting the issue to the jury for resolution.


Contributory Negligence

Harris argues that Harman’s admissions that he was driving at
an excessive speed and failed to maintain a proper lookout
require a determination that Harman was contributorially
negligent, as a matter of law, and, therefore, that Harris is
entitled to final judgment in Harman’s action against him. Harman
replies that the issue was properly submitted to the jury because
Harris’ tailgating placed Harman in a position of sudden peril,
and, thus, the jury could find that Harman’s actions were
reasonable under the circumstances.[1]
Harman bases his position on our cases which have excused
otherwise negligent acts, such as Perlin v. Chappell, 198
Va. 861, 96 S.E.2d 805 (1957), in which we held

if the circumstances are such as would reasonably cause a
normal person to become greatly excited or frightened, he is
not required to exercise the coolness and sound judgment that
he would be required to exercise under ordinary
circumstances. One who negligently places another in a
position of sudden peril may not complain that the other
fails to react with wisdom and promptness.

Id. at 866, 96 S.E.2d at 809.

In Perlin, the plaintiff faced a runaway 1,100 pound
heifer, and was "so frightened that ‘he could not
move.’" Id. at 863-64, 96 S.E.2d at 808. Under these
circumstances, the plaintiff’s failure to take reasonable steps
to avoid injury was not negligent. Like Perlin, all the
cases relied on by Harman in which the sudden peril doctrine has
been applied involved situations in which the actor engaged in
some activity which could be considered negligent under normal
circumstances, but was not because the actor was faced with
immediate peril. Norfolk & Portsmouth Belt Line R.R. Co.
v. Parker
, 152 Va. 484, 500-01, 147 S.E. 461, 466
(1929)(failing to draw arm in car before collision with train); Richmond
Traction Co. v. Wilkinson
, 101 Va. 394, 404-05, 43 S.E. 622,
626 (1903)(boy jumping off moving street car when ordered to do
so by conductor); South West Improvement Co. v. Smith’s Adm’r,
85 Va. 306, 319, 7 S.E. 365, 371 (1888)(young boy opening door of
mine chamber when faced with run-away coal train).
In this case, Harris’ tailgating did not present Harman with
immediate peril. While the record is not precise, it does
establish that Harman was aware of Harris’ tailgating for four to
five miles before the two vehicles approached the curve and that
Harman’s speed was consistent throughout that four to five mile
stretch. Harman was familiar with the road, knew he was
approaching the curve, and knew he had to slow down to negotiate
it. Harman was not put in sudden peril by Harris’ tailgating, but
he had been aware of, and had reacted to, the situation for a
period of time. During that time, Harman, by his own admission,
drove at an excessive speed and failed to keep a proper lookout.
Accordingly, Harman was contributorially negligent as a matter of
law, and the trial court erred in submitting that issue to the


Willful and Wanton Negligence

Harman assigned cross-error asserting that the trial court
should have instructed the jury on willful and wanton negligence
and that Harman’s contributory negligence would not bar his
recovery from Harris if Harris was guilty of willful and wanton

Willful and wanton negligence is one of three levels of
negligence. Simple negligence is the failure to use the degree of
care an ordinary person would exercise to avoid injury to
another. The second level of negligence, gross negligence, is
action which shows indifference to others, disregarding prudence
to the level that the safety of others is completely neglected.
Gross negligence is negligence which shocks fair-minded people,
but is less than willful recklessness. Griffin v. Shively,
227 Va. 317, 321, 315 S.E.2d 210, 212-13 (1984). Willful and
wanton negligence, the third level, is "acting consciously
in disregard of another person’s rights or acting with reckless
indifference to the consequences, with the defendant aware, from
his knowledge of existing circumstances and conditions, that his
conduct probably would cause injury to another." Id.
at 321, 315 S.E.2d at 213.

Harman argues that the evidence showed that Harris intended to
tailgate Harman, had prior knowledge of the road and curve, and
knew that his speed was in excess of the speed required to safely
negotiate the curve. These facts, Harman contends, would support
a finding by the jury that Harris’ acts were conscious,
intentional acts, in "disregard of another person’s
rights," and that Harris was aware, "from his knowledge
of existing circumstances and conditions, that his conduct
probably would cause injury to others."

Harman applies the phrases we have used to describe willful
and wanton negligence in characterizing Harris’ conduct. But
adopting his analysis would turn every intentional moving traffic
violation into a case of willful and wanton negligence. Traffic
laws are established for the safety of those who are on the
public roads. Every time a driver intentionally violates a
traffic law, by definition, the violator is on notice that other
users of the road may be injured as a result of his violation.
Such conduct alone, however, does not have the characteristics of
conduct generally classified as willful and wanton. See Baker
v. Marcus
, 201 Va. 905, 910, 114 S.E.2d 617, 621-22 (1960).

While each case must be resolved on its own facts, willful and
wanton negligence generally involves some type of egregious
conduct – conduct going beyond that which shocks fair-minded
people. Such conduct has ranged from a driver with a
significantly high blood alcohol content involved in an accident
after a prior collision with another car, exceeding the speed
limit, driving in the wrong lane, and leaving the scene of the
accident, Huffman v. Love, 245 Va. 311, 313, 427 S.E.2d
357, 359 (1993), to a driver intentionally chasing and running
into a bicyclist in a dispute over money, Friedman v. Jordan,
166 Va. 65, 68, 184 S.E. 186, 187 (1936), but has not included
the actions of a drunk driver who was speeding, took no evasive
action to avoid a rear-end collision, and tried to leave the
scene of the accident, Puent v. Dickens, 245 Va. 217,
218-19, 427 S.E.2d 340, 341-42 (1993). The conduct complained of
in this case, Harris’ speed and tailgating, falls far short of
the egregious conduct we have previously found necessary to
support a finding of willful and wanton negligence. See Clohessy
v. Weiler
, 250 Va. 249, 253, 462 S.E.2d 94, 97 (1995), and
the cases discussed therein. Accordingly, we conclude that the
trial court did not err in refusing to instruct the jury on
willful and wanton negligence.



In summary, we conclude that the trial court properly
submitted the issue of whether Harris’ actions were a proximate
cause of the accident to the jury and that the trial court did
not err in refusing to instruct the jury on willful and wanton
negligence. Therefore, we will affirm that part of the judgment
awarding Sweeney $25,000 for which Harris is jointly and
severally liable with Harman. Because we conclude that Harman was
contributorially negligent, as a matter of law, we will reverse
that part of the judgment awarding Harman $50,000 damages, and
enter final judgment in favor of Harris on that issue. In light
of this disposition, we need not address Harris’ challenge that
the verdicts were conflicting.

Affirmed in part,
reversed in part,
and final judgment.



[1] Harman
also argues that his excessive speed and failure to keep a proper
lookout were put into operation by Harris’ tailgating and,
therefore, the tailgating "entirely supersede[d] the
operation" of Harman’s negligence. The jury instruction upon
which Harman relies, however, refers to whether Harris’
negligence was superseded by Harman’s, not vice versa. Harman did
not offer a jury instruction on Harris’ negligence as a
superseding cause of the accident and we will not consider that
argument here.