February 27, 1998
Record No. 970880





M. Langhorne Keith, Judge

Present: All the

In this appeal, we consider issues of contributory negligence
and last clear chance.

On the night of December 14, 1994, Harvey R. Williams, Jr.
(Harvey), Jeffrey L. Harrison, and two of their friends were
driving through a subdivision in Fairfax County in four separate
cars. Harvey’s vehicle was second in the line, followed by
Harrison’s vehicle. Harvey and Harrison were driving at speeds of
approximately 60-65 miles per hour and 45 miles per hour,
respectively. The speed limit was 35 miles per hour.

Shortly after cresting a hill, Harvey braked suddenly,
skidding in a straight line. When Harrison crested the hill and
saw the brake lights and the smoke emanating from the tires of
Harvey’s car, he moved from the right lane into the center turn
lane, hoping to avoid Harvey’s car by passing it on the left
side. But Harvey also turned his car to the left, in front of
Harrison’s car. Both cars ultimately entered the far left lane
where Harrison’s car struck Harvey’s car. Harvey died from
injuries sustained in the collision. Harrison was later convicted
of involuntary manslaughter.

Harvey R. Williams, Sr. (Williams), qualified as administrator
of Harvey’s estate and filed a wrongful death action against
Harrison. After a two-day trial, the jury returned a verdict in
favor of Harrison. Williams raises three issues on appeal: (1)
whether the trial court erred in denying his motion in limine and
allowing Harrison to assert the defense of contributory
negligence, despite Harrison’s manslaughter conviction; (2)
whether the trial court erred in refusing to instruct the jury on
last clear chance; and (3) whether the trial court improperly
limited the scope of Williams’ cross-examination of Harrison. We
consider the issues in order.


Prior to trial, Williams filed a motion in limine, asserting
that the ex turpi causa doctrine should be
applied to prevent Harrison from raising the defense of
contributory negligence. Williams relied on a circuit court case
in which the ex turpi causa doctrine was
applied to preclude a defendant convicted of manslaughter from
raising the contributory negligence defense. The trial court
rejected the application of ex turpi causa
concluding that the plea of contributory negligence did not
involve the wrongdoing of the defendant but rather the wrongdoing
of the plaintiff, and denied the motion in limine.

On appeal, Williams shifts the focus of his argument. He no
longer relies primarily on the doctrine of ex turpi
causa, but argues instead that this case is directly
controlled by Matthews v. Warner’s Administrator, 70 Va.
(29 Gratt.) 570 (1877). According to Williams, Matthews
held that a defendant convicted of murder or manslaughter cannot
assert the defense of contributory negligence in a subsequent
wrongful death action. Williams argues that, even if we do not
adopt his interpretation of Matthews, we should not allow
Harrison to assert contributory negligence based on the ex
turpi causa doctrine that no one should profit by
his illegal act.

We reject Williams’ position. First, Matthews does not
stand for the principle espoused by Williams and is not
applicable to this case. Second, we find that ex turpi
causa should not be extended to preclude the contributory
negligence defense in these circumstances.

In Matthews, Franklin M. Matthews shot and killed
Montesco Warner after Matthews received "abusive
language" from Warner. 70 Va. (29 Gratt.) at 570. In the
ensuing wrongful death action, this Court refused to allow
Matthews to raise the defense of contributory negligence because
Warner’s death "was not caused by negligence; it was caused
by violence — by a wrongful act . . . . [W]hether it was murder
in the first degree, or murder in the second degree, or
manslaughter, it is still a wrongful act, which is actionable
under the [wrongful death] statute." Id. at 578.
Williams erroneously relies on this language for the principle
that a manslaughter conviction precludes a contributory
negligence defense in a subsequent wrongful death action.

The import of this language must be determined in light of the
entire proceeding. Warner’s wrongful death action was based on an
intentional tort, not on negligence. The motion for judgment
alleged that Matthews "feloniously, willfully and of his
malice aforethought did discharge and shoot" Warner. The
language at issue and the holding of Matthews, therefore,
simply reflect the familiar principle that contributory
negligence is not a defense to an intentional tort. Restatement
(Second) of Torts ? 481 (1965). As we have stated, in the
absence of primary negligence by the defendant, contributory
negligence cannot exist. Andrews v. Chesapeake & Ohio Ry.
, 184 Va. 951, 956, 37 S.E.2d 29, 31 (1946); Shumaker’s
Adm’x v. Atlantic Coast Line R.R. Co.
, 125 Va. 393, 401, 99
S.E. 739, 741 (1919).

The holding in Matthews, that an action for an
intentional tort may not be defended with allegations of
contributory negligence, is inapplicable to the instant case
because Williams’ action here was premised on a negligence
theory. In his motion for judgment, Williams alleged that
Harrison "had a duty to operate his automobile without
negligence," that he breached that duty by operating his
vehicle "carelessly and negligently," and that this
breach resulted in Harvey’s death. Because Williams’ wrongful
death action is based on negligence, not an intentional tort,
Harrison was entitled to raise the contributory negligence

Finally, we decline Williams’ invitation to preclude
Harrison’s use of the contributory negligence defense based on
the policy that no one should profit from his illegal act, the ex
turpi causa doctrine. Williams cites no appellate
case from this Court or elsewhere which has extended this
doctrine as Williams suggests. This lack of precedent is
understandable. The defense of contributory negligence does not
allow a defendant to profit from his misdeeds. We find no
persuasive rationale for applying the doctrine of ex turpi
causa to prohibit the defendant from raising the defense
of contributory negligence in this case.

Accordingly, we find that the trial court did not err in
denying Williams’ motion in limine and allowing the defendant to
raise contributory negligence as a defense.


We next consider Williams’ second assignment of error, that
the trial court erred in refusing to instruct the jury on last
clear chance.

Prior to our decision in Greear v. Noland Co., 197 Va.
233, 89 S.E.2d 49 (1955), the law regarding the doctrine of last
clear chance was "in a state of hopeless confusion." Pack
v. Doe
, 236 Va. 323, 328, 374 S.E.2d 22, 24-25 (1988). Greear
clarified the doctrine. Id. The last clear chance doctrine
applies in two situations: (1) where the injured party has
negligently placed himself in a position of peril from which he
is physically unable to remove himself (the helpless plaintiff);
and (2) where the injured party has negligently placed himself in
a position of peril from which he is physically able to remove
himself, but he is unconscious of his peril (the inattentive
plaintiff). Id. at 328-29, 374 S.E.2d at 25.

In the first situation, the plaintiff must be "physically
incapacitated" to qualify as a helpless plaintiff, Vanlandingham
v. Vanlandingham
, 212 Va. 856, 858, 188 S.E.2d 96, 98 (1972),
and the defendant is liable if he saw or should have seen the
helpless plaintiff. In the second situation, the defendant is
liable only if he actually saw the inattentive plaintiff. In
either case, however, liability is further predicated upon a
showing that the defendant realized or ought to have realized the
peril of the helpless or inattentive plaintiff in time to avert
the accident by use of reasonable care. Pack, 236 Va. at
329, 374 S.E.2d at 25; Greear, 197 Va. at 238-39, 89
S.E.2d at 53.

A final principle applicable to the last clear chance
doctrine, is that last clear chance does not supersede
contributory negligence. A negligent plaintiff may recover only
if his negligence was a remote rather than a proximate cause of
the accident. If the opportunity to avoid the accident is as
available to a plaintiff as to a defendant, then the plaintiff’s
negligence is a proximate cause rather than a remote cause, and
bars recovery. Cook v. Shoulder, 200 Va. 281, 285-86, 105
S.E.2d 860, 863 (1958). The plaintiff has the burden of
establishing each element of the doctrine by a preponderance of
the evidence. Pack, 236 Va. at 329, 374 S.E.2d at 25.

In all but one case in which we have considered this issue
since 1955, Turner v. Railway Company, 205 Va. 691, 139
S.E.2d 68 (1964), we have declined to require the application of
the doctrine, and we decline to do so here. Williams, like the
other plaintiffs, has failed to provide evidence of each element
necessary to invoke the last clear chance doctrine.

Williams argues that he was entitled to the last clear chance
instruction under the second classification, the inattentive
plaintiff, even though the jury instruction offered by Williams
and denied by the trial court, instruction No. 13, described a
helpless, not an inattentive, plaintiff. Nevertheless, Williams
was not entitled to the instruction on either ground because the
record contains no evidence showing that Harvey was physically
incapacitated or that he was unaware of the peril in which he had
placed himself. Further, the collision occurred after both
Harrison and Harvey moved from the right lane, across the center
turn lane, and into the left lane for oncoming traffic. Harvey’s
action in crossing into the left lane was a proximate cause of
the accident, not a remote cause. Therefore, Williams was not
entitled to the last clear chance instruction.


Finally, Williams asserts that the trial court improperly
limited his cross-examination of Harrison. However, Williams did
not proffer the additional questions he intended to ask or the
additional testimony he expected to elicit from further
cross-examination, nor was he prevented from doing so by the
trial court. See Brown v. Commonwealth, 246 Va.
460, 464-65, 437 S.E.2d 563, 564-65 (1993). In the absence of a
proffer, we will not consider this issue on appeal. Clagett v.
, 252 Va. 79, 95, 472 S.E.2d 263, 272, cert.
denied, ___ U.S. ___, 117 S.Ct. 972 (1996); Chappell v.
Virginia Electric and Power Co.
, 250 Va. 169, 173-74, 458
S.E.2d 282, 284-85 (1995).

Accordingly, because the trial court did not err in allowing
Harrison to raise the defense of contributory negligence or in
refusing to instruct the jury on last clear chance, we will
affirm the judgment of the trial court.