Booth v. Robertson

• Decision Date: 18 November 1988
• Docket Number: No. 861004,861004
• Citation: 236 Va. 269,374 S.E.2d 1
• Court: Virginia Supreme Court
• Parties: Doris Martin BOOTH v. George Barnitz ROBERTSON. Record

Page 1

374 S.E.2d 1

236 Va. 269

Doris Martin BOOTH v. George Barnitz ROBERTSON.

Record No. 861004.

Supreme Court of Virginia.

Nov. 18, 1988.

G. Carter Greer (Greer, Greer & Furrow, Rocky Mount, on brief), for appellant.

J. Rudy Austin (William O. Tune, Jr., Thomas H. Miller, Gentry, Locke, Rakes & Moore, Roanoke, on brief), for appellee.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ., and GORDON, Retired Justice.

CARRICO, Chief Justice.

In this personal injury case arising out of an automobile accident, the plaintiff, Doris Martin Booth, sought both compensatory and punitive damages from the defendant, George Barnitz Robertson. The trial court permitted the jury to consider compensatory damages but struck the plaintiff's evidence relating to punitive damages. The jury returned a verdict in favor of the plaintiff for $75,000 in compensatory damages, and the judgment entered on that verdict has become final. The plaintiff has appealed from the adverse action on her claim for punitive damages.

The accident in which the plaintiff sustained her injuries occurred after dark on a rainy evening in late October 1984. Leaving her workplace in Radford around 7:10 p.m., the plaintiff proceeded in a northerly direction on Interstate Highway 81, en route to her home in Vinton.

About 7:50 p.m., the defendant, operating a jeep, drove the wrong way down the exit ramp for northbound traffic at Exit 39 and entered the northbound lanes of Interstate 81 into the path of an approaching tractor-trailer truck. Seeing the defendant's jeep coming toward him, James Hogan, the driver of the truck, blinked his lights and blew "a constant blast" on his air horns. Hogan also turned his vehicle to the right and then to the left in an effort to avoid a collision with the jeep. The defendant finally passed Hogan on the latter's left side and "just kept going ... at a pretty high rate of speed." At a point approximately four-tenths of a mile south of Exit 39, the defendant collided head-on with the plaintiff.

The defendant was charged with driving under the influence and reckless driving. A certificate of blood analysis showed that after the accident, he had a blood alcohol content of 0.22% by weight by volume. ¹ The defendant later pleaded guilty to the charge of driving under the influence.

On appeal, the defendant contends that, in Virginia, punitive damages may be awarded in vehicular accident cases only for malicious conduct and that there has been no showing of malice in this case. The defendant bases this contention on his reading of two of our decisions, Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960), and Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984).

The defendant points out that, in Baker, we said: "One who knowingly drives his automobile on the highway under the influence of intoxicants, in violation of statute, is, of course, negligent. It is a wrong, reckless and unlawful thing to do; but it is not necessarily a malicious act." 201 Va. at 910, 114 S.E.2d at 621.

We think the defendant reads this quotation out of context. The statement was made as part of a general discussion on the subject of punitive damages and cannot be read as a holding that punitive damages may be awarded only for malicious conduct. Indeed, earlier in the Baker opinion, we noted that " '[punitive] damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evinces a conscious disregard of the rights of others.' " 201 Va. at 909, 114 S.E.2d at 621 (quoting Wood v. Amer. Nat. Bank, 100 Va. 306, 316, 40 S.E. 931, 934 (1902)) (emphasis added). ²

The defendant next points out that we repeated the Baker quotation in Essex and then said in a footnote:

Some courts reason that one who deliberately drives a car to a place remote from home for the purpose of drinking, knowing that he will have to drive home under the influence of alcohol, then, after becoming intoxicated, drives recklessly, thereby acts so wantonly, and with such a disregard of human life as to supply an inference of malice.... We do not think the premises support the conclusion reached.

228 Va. at 283 n. 3, 322 S.E.2d at 221 n. 3 (citation omitted).

But this footnote cannot be considered as a holding that only malicious conduct warrants an award of punitive damages. Essex involved a conviction of second degree murder for death occurring in an automobile accident caused by an intoxicated driver. A showing of malice was essential to the conviction. We merely held that the defendant's intoxication was "irrelevant to the determination of malice." 228 Va. at 283, 322 S.E.2d at 221. Nothing in the opinion suggests there are no grounds other than malice for an award of punitive damages.

The defendant also cites our decision in Friedman v. Jordan, 166 Va. 65, 184 S.E. 186 (1936). The defendant says Friedman is "the paradigm case," representing the only vehicular accident scenario in which an award of punitive damages is justified. The defendant characterizes the evidence in Friedman as showing that "a creditor deliberately ran down his debtor, who was on a bicycle, pinned him under the automobile, and then demanded payment of the debt."

Friedman, however, is not authority for the proposition that only malicious conduct will support an award of punitive damages. Like Baker, Friedman recognizes that an award of punitive damages may also be based on a showing of willful or wanton conduct which evinces a conscious disregard of the rights of others. 166 Va. at 68, 184 S.E. at 187. ³

But, the defendant argues, even if willful or wanton conduct will support an award of punitive damages, Friedman teaches that such conduct imports "knowledge and consciousness that injury will result from the act done." Id. The defendant then asserts there was no proof in this case he "knew that he was traveling in the wrong direction on the interstate, that he was deliberately bent on destruction and that he did not care " (emphasis in original). In the absence of ill will or some other motivation to cause harm, the defendant says, proof of conscious disregard could have been supplied only if he had stated beforehand that he was going to drive "down the interstate the wrong way [and have] some adventure and excitement tonight."

We disagree with the defendant. We think that a conscious disregard of the rights of others may be proved by means other than a defendant's subjective statements. The objective fact that the defendant in this case voluntarily consumed enough intoxicants to produce a reading of 0.22% blood alcohol content, causing him to drive as he did on the night in question, provides sufficient proof of his conscious disregard of the rights of others.

The defendant argues, however, that because of his high state of intoxication, he was "less [able] to be aware of the consequences of what [he was] doing." Indeed, the defendant takes the extreme position that "the drunker [one gets] and then [drives], the less likely [he is] to be liable for punitive damages."

We reject this notion. In Essex, we said that while intoxication is "irrelevant to the determination of malice," 228 Va. at 283, 322 S.E.2d at 221, it is "relevant to a determination of the degree of the defendant's negligence: whether ordinary, gross, or wanton." Id., 322 S.E.2d at 221-22. W...