Evans v. Evans

• Decision Date: 10 June 2010
• Docket Number: Record No. 091469.
• Citation: 695 S.E.2d 173
• Parties: Hannah Leigh EVANS, An Infant, Who Sues by her Mother, Natural Guardian and Next Friend, Cynthia Kay Stevensv.Billy Bradley EVANS, II.
• Court: Virginia Supreme Court

695 S.E.2d 173

Hannah Leigh EVANS, An Infant, Who Sues by her Mother, Natural Guardian and Next Friend, Cynthia Kay Stevensv.Billy Bradley EVANS, II.

Record No. 091469.

Supreme Court of Virginia.

June 10, 2010.

Randall J. Trost, Lynchburg, for appellant.

Kevin O. barnard (Sean C. Workowski; Carolyn N. Dietz; Frith Anderson & Peake, on brief), Roanoke, for appellee.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider whether the trial court erred when it sustained the demurrer of Billy Bradley Evans, II (“Evans”) to the amended complaint of Hannah Leigh Evans (“Hannah”).¹

I. Facts and Proceedings Below

Hannah, an infant suing by her mother, filed an amended complaint against Evans, her father, which alleged that Evans placed Hannah, then four years old, “in a [portable] foam seat in the floorboard of a 1972 [pickup] truck” he was operating. The truck was involved in a head-on collision with an automobile operated by Caleb Justin Jarman, which caused the truck to travel off the roadway and hit a fence.

Hannah alleged in the amended complaint that due to her father's failure to secure Hannah in the vehicle, she was “violently thrown about in the undercarriage and cab area” of the truck. As a result, Hannah sustained numerous injuries including, but not limited to: multiple facial contusions, a skull fracture, cerebral edema and subarachnoid hemorrhage of the right frontal lobe, a ruptured bladder, a left acetabular fracture, and an inferior pubic rami fracture. Because of the acquired brain injury and the seriousness of her other injuries, Hannah was subjected to several months of hospitalization and rehabilitation.

Hannah alleged that Evans owed her a duty of care both as the operator of the vehicle and as her father. Notwithstanding this duty, Hannah alleged that Evans “carelessly, recklessly, willfully, wantonly, grossly, negligently and grossly negligently, permitted” her to be left in such an unsafe and unreasonably dangerous seating arrangement. Hannah asserted that Evans' alleged negligence was the direct and proximate cause of her serious and permanent physical and psychological injuries, and she sought $100,000 in “compensatory and/or punitive damages.”

Hannah's amended complaint contained no reference to Code § 46.2-1095(A), which requires that children “up to age eight” be placed in a child restraint device when traveling in a motor vehicle on the highways of Virginia. Rather, the amended complaint focused on other aspects of Evans' conduct. Hannah alleged that Evans was “negligent and grossly negligent” when he:

A. Placed [Hannah] in a foam seat in an area of a 33-year-old truck which was as inherently dangerous as having placed her in the cargo bed of the truck.

B. Placed [Hannah] in a loose seat on the floorboard where said infant was surrounded by sharp objects and hard objects in the form of undercarriage structure, wires and front seat support metal rods and metal bars[.]

C. Placed [Hannah] on the floorboard of the truck.

D. Placed [Hannah] in an extreme injury-risk location as described above while knowing that such placement would be catastrophic to the infant should any foreseeable motor vehicle accident occur.

E. Ignored his duty of care to assure that his infant passenger was ... safe and free from being tossed about in the confined area between the truck floorboard and the underside of the dashboard.

In his responsive pleadings, Evans demurred to Hannah's amended complaint, arguing that Code § 46.2-1095(C) barred Hannah's claims, and that she failed to state a claim upon which relief could be granted. Code § 46.2-1095(C) states in pertinent part: “A violation of this section shall not constitute negligence.” Evans also denied that he was liable to Hannah or that he breached any legal duty owing to her.

Following briefing by the parties, the trial court held a hearing at which it acknowledged that Hannah was asserting a common law negligence claim and not a claim of negligence for Evans' alleged violation of Code § 46.2-1095. However, the trial court stated,

[the] statutory duty [to secure a child in a vehicle] is so inextricably intertwined with any common law duty of care, that in my view it would be impossible to try this case without [the statute] somehow coming up either explicitly, or even the jury is thinking about it, that reference would be made to this statute.

The trial court reasoned that if counsel for Hannah argued that Evans failed to exercise reasonable care by placing Hannah on the floor of the truck, the jury would accept that argument because it would know that Evans “is required by statute to put that child in a child restraint seat and he didn't do it.”

The trial court concluded that “the General Assembly exerted a whole lot of effort here to say this kind of conduct ... is not going to be the basis for a civil action in this Commonwealth.” Accordingly, the trial court sustained Evans' demurrer to Hannah's amended complaint and dismissed the complaint with prejudice.

Hannah timely filed her notice of appeal, and we granted an appeal on the following assignments of error:

1. The Circuit Court erred because it failed to view the Amended Complaint in the light most favorable to the Plaintiff and, in doing so, failed to recognize that a jury could reasonably find that the placement of a four-year old child on the floorboard of a 1972 truck was in and of itself a separate and identifiable act of negligence, without reference to the statute.

2. The Circuit Court erred in failing to recognize that Va.Code § 46.2-1095(C) refers only to “negligence” and does [sic] regulate claims for “gross negligence” which[ ] are distinct and separate causes of action, commonly referred to as claims for punitive damages.

3. The Circuit Court erred when it construed Va.Code § 46.2-1095(C) other than according to its plain meaning and in such a way as to create the absurd result of immunizing a wrongdoer for any degree of negligence in transporting a child in a motor vehicle.

4. The Circuit Court erred in failing to construe Va.Code §§ 46.2-1095 and 46.2-1098 conjunctively, given the language of Va.Code § 46.2-109[8] which specifically states in part that “nor shall violation of this article constitute a defense to any claim for personal injuries to a child or the recovery of medical expenses for injuries sustained in any motor vehicle accident.”

II. Analysis

A. Standard of Review

As we previously have stated,

“[a] demurrer admits the truth of the facts contained in the pleading to which it is addressed, as well as any facts that may be reasonably and fairly implied and inferred from those allegations. A demurrer does not, however, admit the correctness of the pleader's conclusions of law.” Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136-37 (2001) (internal citation omitted). Accordingly, we will consider the facts stated, and those reasonably and fairly implied and inferred, in the [complaint] in a light most favorable to the plaintiff, but we will review the sufficiency of the legal conclusions ascribed to those facts de novo.

Taboada v. Daly Seven, Inc., 271 Va. 313, 317-18, 626 S.E.2d 428, 429 (2006) aff'd on reh'g, 273 Va. 269, 270, 641 S.E.2d 68, 68 (2007). In this appeal, we interpret Code §§ 46.2-1095 and 46.2-1098.

[A]n issue of statutory interpretation is a pure question of law which we review de novo. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted). Furthermore, “[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998).

B. Code §§ 46.2-1095 and 46.2-1098

The dispositive issue in this case is whether Code §§ 46.2-1095 and 46.2-1098 preclude any cause of action for negligence when an injured child alleges that the adult responsible for her safety breached the common law duty of care by failing to secure the child in a safety seat.

Code § 46.2-1095(A) provides in pertinent part that any person who drives on the highways of Virginia “shall ensure that any child, up to age eight, whom he transports therein is provided with and properly secured in a child restraint device of a type which meets the standards adopted by the United States Department of Transportation.” Code § 46.2-1095(C) provides in pertinent part, “[a] violation of this section shall not constitute negligence, be considered in mitigation of damages of whatever nature, be admissible in evidence or be the subject of comment by counsel in any action for the recovery of damages in a civil action.” Code § 46.2-1098 provides in pertinent part, “[v]iolations of this article shall not constitute negligence per se; nor shall violation of this article constitute a defense to any claim for personal injuries to a child or recovery of medical expenses for injuries sustained in any motor vehicle accident.” ²

Our review of these statutes is guided by well-established canons of construction.

The General Assembly has proclaimed, “The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force ... and be the rule of decision, except as altered by the General Assembly.” Code § 1-200. When construing a statute in derogation of the common law, we apply several established principles. “[A] statutory provision will not be held to change the common law unless the

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