Etherton v. Doe, Record No. 032104.
| Decision Date | 10 June 2004 |
| Docket Number | Record No. 032104. |
| Parties | Gail K. ETHERTON v. John DOE. |
| Court | Virginia Supreme Court |
Jack T. Burgess (Burgess, Kemback & Perigard, on brief), Fairfax, for appellant.
Alicia Lehnes Summers (Michael L. Davis & Associates, on brief), for appellee.
Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, LEMONS, and AGEE, JJ., and RUSSELL, S.J.
This appeal turns upon the sufficiency of the evidence to frame a jury issue with respect to assault and willful and wanton conduct in a non-contact automobile tort case. Gail K. Etherton, the plaintiff below, and her daughter, Deborah Etherton, were the only witnesses who testified to the relevant events at trial, and the facts will be stated in accordance with their testimony.
On February 1, 2001 at about 3:30 p.m., Gail Etherton was driving her car west on Route 29 in the City of Fairfax. Her front-seat passenger was her daughter, Deborah. Mrs. Etherton, intending to make a left turn on to Pickett Road, was in the left turn lane as she approached the intersection. Because the traffic light at the intersection had turned red, she came to a stop behind a white BMW sedan. She could see that it was occupied by a male driver and a female passenger. When the light turned green, the white vehicle failed to proceed. Drivers who were stopped in traffic behind the Etherton car began "honking" their horns. The white sedan "wouldn't move at all," and the driver behind the Etherton car "kept blowing the horn" until the white sedan finally turned left on to Pickett Road.
There were two southbound lanes of travel on Pickett Road and the outside of each lane was bordered by a curb. The white BMW occupied the right lane and Mrs. Etherton remained in the left lane. As the two cars traveled side by side, the driver of the BMW "kept watching" and "staring" at Deborah. She testified: The two cars came to a stop side by side at a red light at the intersection of Route 50, where Mrs. Etherton glanced over to see the driver of the white BMW. She testified that he appeared to be a tall man of oriental descent with a woman passenger.
After the light turned green, the two cars crossed Route 50 and continued southbound. Mrs. Etherton testified that the white BMW then crossed over into her lane: "It veered over very quickly at my fender and then returned to the lane that it was in." The driver of the BMW gave no signal or other warning before crossing into her lane and there was no apparent obstruction in his lane to require such a maneuver. She said: The BMW then returned to the right lane.
A "very short time" later, the driver of the BMW repeated this maneuver, coming even further into the left lane and forcing Mrs. Etherton to swerve "very close" to the curb. The BMW again returned to the right lane and came to a stop at another traffic light. Mrs. Etherton came to a stop in the left lane but remained behind the BMW because she was "really, really frightened." She said that the maneuver
After this light turned green, the BMW seemed to accelerate and Mrs. Etherton thought Her car made no contact with the BMW. The impact with the curb caused her to strike the steering wheel with her right side. That blow later resulted in an infected hematoma in the abdominal wall requiring surgery. After the impact with the curb, the BMW returned to the right lane and drove away.
Because the driver of the white BMW was never identified, Mrs. Etherton brought this action against "John Doe" in three counts: Negligence, assault, and willful and wanton conduct justifying punitive damages. At the jury trial, the court sustained defense motions to strike the plaintiff's evidence with respect to the assault count and the willful and wanton conduct count. The case was submitted to the jury only on instructions covering ordinary negligence. The jury returned a verdict for the defendant and judgment was entered on it. Mrs. Etherton assigned error to the trial court's action in striking the evidence and we awarded her an appeal.
A motion to strike the plaintiff's evidence should be granted only when it plainly appears that the court would be compelled to set...
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