Hawthorne v. VanMarter

PRESENT: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.

PAXTON HAWTHORNE, CO-ADMINISTRATOR
OF THE ESTATE OF JOYCE HAWTHORNE, ET AL.

OPINION BY
v. Record No. 091127 JUSTICE BARBARA MILANO KEENAN
April 15, 2010
TIMOTHY VANMARTER

KEVIN GUTHRIE

v. Record No. 091156

TIMOTHY VANMARTER

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Charles N. Dorsey, Judge

In these appeals of a judgment for a defendant in a

vehicular accident case alleging ordinary and gross negligence,

we consider several issues, including the circuit court’s

holding that the defendant, a police officer, was entitled to

sovereign immunity. We also consider the defendant’s motion to

dismiss one of the appeals.

I. Pre-Trial Rulings

In June 2005, Joyce Hawthorne was killed and Kevin

Guthrie was injured when a police vehicle driven by Senior

Officer Timothy VanMarter of the Roanoke County Police

1
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
Department struck the vehicle Hawthorne was driving. Guthrie

and the co-administrators of Hawthorne’s Estate, Paxton

Hawthorne and Joseph Anthony (the Administrators), filed

separate motions for judgment 2 in the Circuit Court of the City

of Roanoke against VanMarter, alleging negligence. 3 The

circuit court granted VanMarter’s motion to transfer the cases

to the Circuit Court of Roanoke County, and the cases were

consolidated for trial.

VanMarter filed a plea in bar asserting that he was

entitled to sovereign immunity. VanMarter argued that at the

time of the accident, he was attempting to “overtake” a

vehicle that was traveling at an excessive rate of speed.

Contending that this conduct was discretionary in nature,

VanMarter asserted that he was immune from liability for

ordinary negligence. VanMarter also argued that, as a matter

of law, his conduct was not grossly negligent because he

exercised some care by applying the police vehicle’s brakes

and by swerving in an attempt to avoid the accident.

2
These motions for judgment were filed prior to the
amendment of Part Three of the Rules of Court, effective
January 1, 2006, to provide that a civil action is commenced
by filing a “complaint.” Rules 3:1 and 3:2; see also Ahari v.
Morrison, 275 Va. 92, 96 n.2, 654 S.E.2d 891, 893 n.2 (2008).
3
In their respective motions for judgment, Guthrie and
the Administrators both named James R. Lavinder, Chief of
Police of the Roanoke County Police Department, as a
defendant. However, their amended complaints named only
VanMarter as a defendant.

2
 In response, the Administrators and Guthrie

(collectively, the plaintiffs) asserted that the doctrine of

sovereign immunity was inapplicable because VanMarter never

activated his police vehicle’s emergency equipment, and

because he was “overtaking” rather than pursuing a speeding

vehicle. The plaintiffs further argued that any determination

of gross negligence required factual findings that could not

be decided by the court as a matter of law.

In a hearing conducted on the defendant’s plea in bar,

the circuit court considered VanMarter’s testimony and the

memoranda and arguments of counsel. The plaintiffs did not

present the testimony of any witnesses for the court’s

consideration. Based on VanMarter’s testimony, the circuit

court found that VanMarter was pursuing a speeding vehicle at

the time of the accident. The circuit court held that

VanMarter’s actions were discretionary in nature and that,

therefore, the plaintiffs’ claims of ordinary negligence were

barred by the doctrine of sovereign immunity.

Following the circuit court’s ruling on the plea in bar,

the plaintiffs conducted depositions of two potential trial

witnesses. These witnesses stated that during a period of

between 30 and 45 minutes before the collision, they stood

about 250 feet from Chaparral Drive and were engaged in

conversation. The two witnesses related that they did not

3
observe a speeding vehicle before hearing the collision.

Arguing that these witness accounts were “[n]ewly

[d]iscovered” evidence, the plaintiffs filed a motion “to

[a]mend [p]rior [r]uling,” asserting that the deposition

testimony created a factual dispute regarding the presence of

a speeding vehicle. The plaintiffs asked that the circuit

court allow the two witnesses to testify at trial, and submit

to the jury the factual issue whether VanMarter was pursuing a

speeding vehicle. The plaintiffs argued that if the jury

determined that there was no such speeding vehicle, VanMarter

would not be entitled to the protection of sovereign immunity

and the jury should be instructed on both ordinary and gross

negligence.

VanMarter contended that this testimony was not “newly

discovered” because the witnesses’ names were provided by the

plaintiffs in discovery at least two weeks before the hearing

on the plea in bar. VanMarter also asserted that the

witnesses’ proffered statements did not contradict VanMarter’s

account of the events that night. Thus, VanMarter asserted,

the proffered testimony would not have changed the circuit

court’s sovereign immunity determination.

The circuit court agreed with VanMarter and denied the

plaintiffs’ motion to reconsider the sovereign immunity

holding. The circuit court concluded that the witnesses’

4
testimony did not qualify as “after-discovered evidence,” and

further held that even if the court had considered the

proffered testimony, the witnesses’ statements would not have

affected the court’s sovereign immunity determination. The

plaintiffs did not request that they be allowed to present the

testimony of the two witnesses to the jury for impeachment

purposes or on the issue of gross negligence.

II. Trial

The evidence at trial showed that, at the time the

accident occurred, Guthrie was riding as a passenger in a

vehicle driven by Hawthorne. Guthrie testified that

immediately before the accident, Hawthorne looked in both

directions before leaving a driveway and turning onto

Chaparral Drive. Guthrie testified that he did not observe

any other vehicles, and did not see flashing emergency lights

or hear an emergency siren before the collision. Guthrie

stated that the last thing he remembered after Hawthorne

turned his vehicle onto Chaparral Drive was the “sudden

impact” of something hitting the vehicle.

Guthrie also presented the testimony of witnesses who

qualified as experts on subjects including accident

investigation and the operation of emergency vehicles. From

these witnesses, the jury heard evidence about, among other

things, the conditions of the vehicles involved in the

5
collision, the line of sight from the driveway “looking down”

Chaparral Drive, and the amount of time it would take a

vehicle to travel that distance. The jury also was presented

evidence regarding the “proper protocol” for activation of

emergency equipment on a police vehicle during the pursuit of

another vehicle.

As part of his case, Guthrie also presented the

deposition testimony of VanMarter. VanMarter stated that on

the night of the accident, he was driving his police vehicle

northbound on Chaparral Drive and observed a car traveling in

the opposite direction at 63 miles-per-hour, as measured by

police radar equipment. The posted speed limit at that

location was 25 miles-per-hour. VanMarter stated that he made

a “U-turn” in order to pursue the car and accelerated his

police vehicle by pressing its gas pedal to the floor.

VanMarter conceded that he did not activate the vehicle’s

emergency lights and siren at that time.

In this deposition testimony, VanMarter also stated that

as his speed increased, he looked down to locate and activate

his vehicle’s emergency equipment. At the same time, the

vehicle driven by Hawthorne entered onto Chaparral Drive from

a driveway. VanMarter testified that when he saw Hawthorne’s

car, he applied his vehicle’s brakes, and attempted to turn

6
his vehicle so that it would strike the rear of Hawthorne’s

car.

In his defense, VanMarter presented the testimony of two

witnesses who qualified as experts on the subject of emergency

vehicle training instruction. These witnesses testified

regarding the accepted protocol for activation of emergency

equipment of police vehicles. They stated that when making a

determination whether to “overtake” a speeding vehicle and

whether to activate a police vehicle’s emergency lights and

siren, police officers must take into account various factors

including the time of day, road and vehicle conditions, the

amount of traffic, and the safety of others.

VanMarter also presented the testimony of an accident

investigator and a mechanical engineer. The accident

investigator testified regarding the unobstructed line of

sight that Hawthorne would have had before turning onto

Chaparral Drive. The mechanical engineer testified regarding

the force of the impact and the vehicle damage caused by the

collision.

At the close of all the evidence, the parties submitted

proposed jury instructions. As relevant to this appeal, the

plaintiffs objected to Instructions 3 and 11, which are

described below. The circuit court overruled these objections

and instructed the jury accordingly.

7
 The jury returned a verdict in favor of VanMarter. The

circuit court denied the plaintiffs’ motion to set aside the

verdict and entered final judgment in accordance with the jury

verdict. The plaintiffs appeal from the circuit court’s

judgment.

III. Motion to Dismiss

Before addressing the various rulings and holdings

assigned as error, we will consider VanMarter’s motion to

dismiss the Hawthorne Estate’s appeal. VanMarter argues that

the appeal filed on behalf of the Hawthorne Estate must be

dismissed because the Administrators filed the appeal in a pro

se capacity. VanMarter asserts that our holding in Kone v.

Wilson, 272 Va. 59, 630 S.E.2d 744 (2006), that an

administrator of an estate may not file an action in a pro se

capacity, unequivocally bars the Administrators’ appeal here.

In response, the Administrators argue that the holding in

Kone is not applicable to this appeal because that holding

does not address whether an administrator may file an appeal

in this Court, as opposed to a complaint in a circuit court,

in a pro se capacity. The Administrators alternatively

contend that even if the holding in Kone is applicable to the

filing of an appeal, the Administrators have a personal

interest in the outcome of the present appeal to recover their

fees and, therefore, were permitted to file their appeal in a

8
pro se capacity. Finally, the Administrators argue that even

if they were prohibited from filing the appeal in a pro se

capacity, the notice of appeal filed by Guthrie in this

consolidated proceeding had the effect of perfecting the

Administrators’ appeal. We disagree with the Administrators’

arguments.

We first observe that the notice of appeal filed by

Guthrie did not perfect the Administrators’ appeal. Although

Rule 5:9(c) is permissive in nature, and allows one notice of

appeal to be filed on behalf of all parties when two or more

cases have been tried together, the plaintiffs in the present

cases each filed separate notices of appeal, and Guthrie’s

notice of appeal did not state that it was being filed on

behalf of the Hawthorne Estate. Thus, the record before us

plainly shows that Guthrie’s attorney was not acting on behalf

of the Hawthorne Estate when he filed Guthrie’s notice of

appeal.

We also disagree with the Administrators’ argument that

our holding in Kone is distinguishable from the present case

because that holding addressed a pro se filing in the circuit

court, rather than in this Court. Our holding in Kone was

based on the representative role of an administrator, not on

the type of court in which the administrator’s action was

filed.

9
 In Kone, we explained that the Virginia Wrongful Death

Act, Code §§ 8.01-50 through -56, vests a right of action for

wrongful death in a decedent’s personal representative, but

that the cause of action belongs to the decedent’s

beneficiaries. Id. at 62, 630 S.E.2d at 746. We held that an

administrator of an estate acts as a surrogate for the

beneficiaries of the estate and cannot file a cause of action

in a pro se capacity, because the administrator is merely

acting in a representative capacity for the true parties in

interest. Id. at 62-63, 630 S.E.2d at 746.

Although a licensed attorney properly filed the present

action in the Administrators’ names in the circuit court, the

notice of appeal filed in this Court by the Administrators

stated that each was acting in a “pro se” capacity as a co-

administrator of the Hawthorne Estate. Like the administrator

in Kone, the Administrators in the present case can act only

in a representative capacity for the beneficiaries of the

Hawthorne Estate. Thus, because the Administrators were not

the true parties in interest, they were not entitled to file

the present appeal in a pro se capacity. See id. at 62-63,

630 S.E.2d at 746.

We find no merit in the Administrators’ argument that

they nevertheless were entitled to file their appeal in a pro

se capacity because they have a personal interest in the

10
outcome of the appeal. The Administrators did not become

aggrieved parties in the case merely by virtue of their desire

to recover the fees purportedly owed to them for serving as

administrators of the Hawthorne Estate. 4

Because our holding in Kone is controlling, we conclude

that the Administrators did not have a right to file the

appeal in a pro se capacity for a cause of action belonging to

the Hawthorne Estate’s beneficiaries. See id. at 62-63, 630

S.E.2d at 746. Accordingly, we will grant VanMarter’s motion

to dismiss the Administrators’ appeal.

IV. Plea in Bar Asserting Sovereign Immunity

Guthrie argues that the circuit court erred when it

refused to submit to the jury the factual question whether

VanMarter was engaged in overtaking a speeding vehicle at the

time of the collision. Guthrie asserts that the circuit court

improperly made a factual determination when the court

concluded that the proffered testimony of the two witnesses

would not have changed the outcome of the circuit court’s

sovereign immunity holding.

4
There also is no merit in the Administrators’ argument
that Anthony was authorized to file this appeal as an attorney
representing the Hawthorne Estate, because the record does not
demonstrate that he filed the appeal in his capacity as a
licensed attorney.

11
 Guthrie argues that he had no obligation to bring the two

witnesses to the circuit court’s attention during the plea in

bar hearing because VanMarter only asked the circuit court to

determine whether an officer overtaking a speeding vehicle is

entitled to sovereign immunity. Guthrie asserts that he was

not required to raise the separate factual question whether

the speeding vehicle in fact existed, and argues that this

factual dispute should have been submitted at trial to the

jury. Guthrie maintains that a jury presented with that

testimony reasonably could have concluded that VanMarter was

not apprehending a speeding vehicle and, thus, was liable for

his acts of ordinary negligence. We disagree with Guthrie’s

arguments.

We first observe that the circuit court’s ruling

declining to reopen the record and reconsider its ruling on

the plea in bar was a discretionary determination. The

essence of any discretionary determination is the exercise of

judgment. Only when the record does not fairly support the

circuit court’s exercise of its judgment will we say that an

abuse of discretion has occurred. See Grattan v.

Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009).

Thus, we will not disturb the circuit court’s judgment absent

a clear abuse of that discretion. See Murphy v. Commonwealth,

246 Va. 136, 148, 431 S.E.2d 48, 55 (1993); Hechler Chevrolet,

12
Inc. v. General Motors Corp., Inc., 230 Va. 396, 403-04, 337

S.E.2d 744, 748-49 (1985).

A plea in bar asserts a single issue, which, if proved,

creates a bar to a plaintiff’s recovery. Schmidt v. Household

Fin. Corp., II, 276 Va. 108, 116, 661 S.E.2d 834, 838 (2008);

Baker v. Poolservice Co., 272 Va. 677, 688, 636 S.E.2d 360,

366 (2006); Cooper Indus., Inc. v. Melendez, 260 Va. 578, 594,

537 S.E.2d 580, 590 (2000). The party asserting a plea in bar

bears the burden of proof on the issue presented. Baker, 272

Va. at 688, 636 S.E.2d at 367; Cooper Indus., 260 Va. at 594,

537 S.E.2d at 590; Tomlin v. McKenzie, 251 Va. 478, 480, 468

S.E.2d 882, 884 (1996).

The issue raised by a plea in bar may be submitted to the

circuit court for decision based on a discrete body of facts

identified by the parties through their pleadings, or

developed through the presentation of evidence supporting or

opposing the plea. Kroger Co. v. Appalachian Power Co., 244

Va. 560, 562, 422 S.E.2d 757, 758 (1992); see Schmidt, 276 Va.

at 112, 661 S.E.2d at 836; Niese v. City of Alexandria, 264

Va. 230, 233, 564 S.E.2d 127, 129 (2002). If the parties

present evidence on the plea ore tenus, the circuit court’s

factual findings are accorded the weight of a jury finding and

will not be disturbed on appeal unless they are plainly wrong

or without evidentiary support. Jennings v. Kay Jennings

13
Family Ltd. P’ship, 275 Va. 594, 600, 659 S.E.2d 283, 287

(2008); Cooper Indus., 260 Va. at 595, 537 S.E.2d at 590.

If the facts underlying the plea in bar are contested, a

party may demand that a jury decide the factual issues raised

by the plea. See Code § 8.01-336(B); Bethel Inv. Co. v. City

of Hampton, 272 Va. 765, 770, 636 S.E.2d 466, 470 (2006);

Upper Occoquan Sewage Auth. v. Blake Constr. Co., Inc., 266

Va. 582, 585-86, 587 S.E.2d 721, 723 (2003); Kroger, 244 Va.

at 562, 422 S.E.2d at 758. Conversely, if the facts are

disputed and no demand for a jury is made, the “whole matter

of law and fact” may be decided by the court. See Code

§ 8.01-336(B).

In the present case, the parties proceeded on the plea in

bar as if the facts were uncontested. Guthrie neither

informed the circuit court of the potential witnesses he had

identified during discovery, nor did he request additional

time to depose those witnesses. Moreover, Guthrie failed to

request that a jury decide the factual issues presented by the

plea in bar, agreed that the circuit court should decide those

issues, and did not object when the circuit court made the

factual determination that VanMarter was in fact attempting to

overtake a speeding vehicle.

By submitting the entire decision on the plea in bar to

the circuit court judge, Guthrie effectively agreed to have

14
the judge decide all legal and factual questions underlying

the single issue whether sovereign immunity shielded VanMarter

from Guthrie’s allegations of ordinary negligence. See

Kroger, 244 Va. at 562, 422 S.E.2d at 758. Thus, we hold that

Guthrie waived his right to have the jury at trial decide the

factual issues pertaining to the question of sovereign

immunity.

Additionally, we note that the circuit court’s decision

declining to reopen the issues pertaining to its sovereign

immunity holding fully reflected the function of the plea in

bar, which is to narrow the litigation by resolving an issue

that will determine whether a plaintiff may proceed to trial

on a particular cause of action. See Schmidt, 276 Va. at 116,

661 S.E.2d at 838; Tomlin, 251 Va. at 480, 468 S.E.2d at 884.

This function would have been undermined in the present case

had the circuit court set aside its ruling and permitted

Guthrie an opportunity to relitigate the issues already

addressed without objection at the hearing on the plea in bar.

We also hold that the circuit court did not err in

concluding that the testimony of the two witnesses failed to

qualify as “after-discovered” evidence. This testimony was

not “after-discovered,” because Guthrie disclosed the identity

of these witnesses before submitting the sovereign immunity

issue to the circuit court and, therefore, could have

15
discovered the content of their testimony by exercising

reasonable diligence. See Orndorff v. Commonwealth, 271 Va.

486, 502, 628 S.E.2d 344, 353 (2006); Odum v. Commonwealth,

225 Va. 123, 130-31, 301 S.E.2d 145, 149 (1983); Fulcher v.

Whitlow, 208 Va. 34, 39, 155 S.E.2d 362, 366 (1967).

Accordingly, we hold that the circuit court did not abuse its

discretion in refusing to reopen its ruling on the plea in bar

and allow the testimony of the two witnesses to be presented

at trial, because Guthrie could have presented that testimony

at the hearing on the plea in bar or have requested additional

time to develop this evidence at that hearing.

V. Venue

We next consider Guthrie’s argument that the circuit

court abused its discretion in granting VanMarter’s motion to

transfer venue. VanMarter argued that the City of Roanoke was

an improper venue because he had relocated his residence from

the City to Roanoke County before this action was filed. In

response, Guthrie asserted that the City of Roanoke was a

permissible venue under Code § 8.01-262 because VanMarter

retained a residence there and conducted “substantial business

activity” in the City.

At a hearing on the motion to transfer venue, VanMarter

testified that he lived with his girlfriend, Melissa Alderman,

on Springtree Drive in the City of Roanoke until July 2005,

16
when VanMarter moved to the County. Alderman testified that

VanMarter moved from her home in the summer of 2005.

During cross-examination, VanMarter conceded that after

he relocated to the County, he retained a key to the

Springtree Drive residence and stored certain furniture and

personal items there. VanMarter testified that he completed a

change of address form with the United States Postal Service,

but that some of his mail still was delivered to the

Springtree Drive address after this litigation was initiated.

VanMarter also stated that in October 2005, his Police

Department paycheck and his voter registration continued to

list the Springtree Drive house as his address.

VanMarter further testified on cross-examination that he

drives through certain portions of Roanoke City on his way to

work, and that he travels into the City more than once a month

to shop, to attend movies, and to dine at City restaurants.

He also testified that at the time this action was filed, he

was enrolled in classes at Virginia Western Community College

in the City of Roanoke and had been taking classes for about

six months.

After considering this evidence and the arguments of

counsel, the circuit court held that VanMarter had proved that

he resided in Roanoke County at the time this action was

filed. The circuit court further held that VanMarter’s

17
conduct in the City of Roanoke did not constitute “substantial

business activity” as contemplated by Code § 8.01-262(3).

On appeal, Guthrie asserts that VanMarter failed to

present sufficient evidence to establish that the venue chosen

by the plaintiffs was improper. Guthrie argues that VanMarter

failed to prove that he moved to Roanoke County before the

date the action was initiated. Guthrie further argues that

VanMarter conducted substantial business activity in the City

of Roanoke and, therefore, that the circuit court abused its

discretion in transferring venue to Roanoke County. We

disagree with Guthrie’s arguments.

We observe that Code § 8.01-262 provides in relevant part

that an action may be filed “[w]herein the defendant resides”

or “[w]herein the defendant regularly conducts substantial

business activity.” Code § 8.01-262(1), (3). The party

objecting to venue has the burden to establish that the venue

chosen by the plaintiff was improper. Barnett v. Kite, 271

Va. 65, 69, 624 S.E.2d 52, 54 (2006); Meyer v. Brown, 256 Va.

53, 57, 500 S.E.2d 807, 809 (1998). The determination whether

the selected venue is proper is committed to the sound

discretion of the circuit court. Barnett, 271 Va. at 69, 624

S.E.2d at 54; Meyer, 256 Va. at 56-57, 500 S.E.2d at 809.

We hold that the circuit court did not abuse its

discretion in granting VanMarter’s motion to change venue.

18
The record supports the circuit court’s conclusion that

VanMarter lived in Roanoke County at the time the suit was

filed in the fall of 2005. Alderman corroborated VanMarter’s

testimony that in the summer of 2005, he moved out of her home

located in the City of Roanoke. VanMarter also completed a

change of address form in order to receive mail at his home in

Roanoke County. The fact that VanMarter continued to receive

some mail at Alderman’s home, retained a key to her home, and

stored personal property there did not contradict his

testimony that he resided in Roanoke County before Guthrie

filed the present action.

The record also supports the circuit court’s conclusion

that VanMarter did not regularly conduct substantial business

activity in the City of Roanoke. Although VanMarter testified

about his enrollment in classes at a community college in the

City of Roanoke, the record does not provide any further

details about these classes and does not indicate that they

were related to his work as a police officer.

The evidence also showed that VanMarter entered the City

of Roanoke to pursue personal and recreational interests,

including dining at restaurants, shopping, and attending

movies. VanMarter also drove on roads located in the City on

his way to work as a police officer in Roanoke County.

19
However, these transient activities, considered as a whole, do

not constitute substantial business activity.

Nevertheless, Guthrie asserts that he satisfied the test

of conducting substantial business activity in the City

because, under a certain Roanoke City ordinance, VanMarter was

authorized to perform some law enforcement functions in the

City. We do not consider this argument, however, because

Guthrie did not raise it before the circuit court. Guthrie’s

failure to do so prohibits us from considering this argument

for the first time on appeal. See Rule 5:25; Green v. Va.

State Bar, 278 Va. 162, 178, 677 S.E.2d 227, 235 (2009);

Graham v. Cook, 278 Va. 233, 248, 682 S.E.2d 535, 543 (2009).

Therefore, we hold that the record before us supports the

circuit court’s discretionary decision transferring venue to

Roanoke County.

VI. Jurors

We next consider Guthrie’s arguments related to the

circuit court’s seating of certain jurors. At the beginning

of the voir dire, the circuit court asked the potential jurors

whether they knew of any reason that they could not give a

fair and impartial trial to the parties based solely on the

law and the evidence. All the potential jurors responded,

“No.” The court also asked whether the veniremen were aware

20
of any bias or prejudice for or against any of the parties, to

which they all responded, “No.”

When questioned by Guthrie’s counsel about whether any

potential jurors had any involvement with the law firm

representing VanMarter, Juror Tuckwiller stated that his

sister worked for that firm. Tuckwiller explained that he

does not discuss his sister’s work with her and that his

relationship with her would not make it “difficult” for him to

“decide this case.”

Regarding whether any of the potential jurors worked with

or came into contact with police officers, Juror Harris stated

that she attends church weekly with two police officers. In

response to a question by counsel, Juror Harris stated that

she did not know whether it would “bother” her to serve as a

juror in case against a police officer, and that “[m]aybe

[she] shouldn’t [sit on the case].” When questioned further,

Juror Harris stated that “it might” be a “little difficult”

for her to serve as a juror and that if a verdict were

rendered against the police officer it would cause her “some

concern.”

Juror Draper stated that she “probably” agreed with Juror

Harris, but also stated that she did not “like to do anything

wrong.” Earlier during voir dire, Juror Draper had stated

that she “[didn’t] think” it would be difficult to be involved

21
in the case and that she did not have any “bias [sic] opinion”

about the case despite her familial relationships with police

officers.

In response to questions about whether potential jurors

believed “it may be unfair to blame” VanMarter for the death

of Hawthorne, Juror Blankenship stated that if VanMarter “was

doing his job, I would have a problem with finding him

personally liable.” After Jurors Harris and Hodges stated

that they agreed with Blankenship’s statement, Juror

Blankenship stated that her position might change if it were

proved that VanMarter was negligent in performing his job.

Juror Harris responded to counsel’s question about

whether the plaintiff’s burden of proof was fair and stated

that she “wish[ed] it were more [than 51 percent], but if that

is the law [sic].” Juror Draper stated that if a person were

going to be “proven guilty” it “[would have] to be 100

percent, I would have to feel it in my mind,” but also stated

that “if that is the law[,] that is the law.”

Guthrie’s counsel asked whether any of the potential

jurors believed that they would not bring a lawsuit against a

police officer even if they felt they had a reason to do so.

The potential jurors all responded, “No.”

Guthrie moved to strike Jurors Draper, Harris,

Blankenship, Tuckwiller and Hodges (the five jurors) for

22
cause. The circuit court denied the motion. The circuit

court stated that while counsel had questioned jurors

regarding whether they would have a “hard time” serving as

jurors, the court had observed the panel and determined that

they would be fair and impartial.

Guthrie requested permission to conduct individual voir

dire outside the presence of the rest of the jury. The

circuit court refused this request and also refused to permit

Guthrie to continue his voir dire. The court noted that the

voir dire had lasted longer than any felony case over which

the judge had presided.

On appeal, Guthrie argues that the “totality” of the

comments made by the five jurors demonstrated that they were

not impartial or free of bias and that, therefore, the circuit

court should have granted Guthrie’s motion to strike them for

cause. In the alternative, Guthrie contends that the circuit

court abused its discretion in denying his request to question

the five jurors outside the presence of the other jurors and

to continue voir dire in order to clarify whether the five

jurors should have been disqualified. We disagree with

Guthrie’s arguments.

Civil litigants are entitled to a fair and impartial

trial by jury consisting of people who “stand indifferent in

the cause.” Code § 8.01-358. A circuit court has wide

23
latitude in seating jurors because the court has a superior

ability to hear the responses and observe the body language of

each member of the venire. Roberts v. CSX Transp., Inc., 279

Va. 111, 115, 688 S.E.2d 178, 180 (2010); Juniper v.

Commonwealth, 271 Va. 362, 400, 626 S.E.2d 383, 408 (2006);

Green v. Commonwealth, 262 Va. 115, 116, 546 S.E.2d 446, 451

(2001). Therefore, we have stated that a circuit court’s

ruling on a motion to strike a juror for cause will not be

disturbed on appeal unless it constitutes manifest error.

Roberts, 279 Va. at 116, 688 S.E.2d at 181; Juniper, 271 Va.

at 401, 626 S.E.2d at 408; Barrett v. Commonwealth, 262 Va.

823, 826, 553 S.E.2d 731, 732 (2001); Green v. Commonwealth,

262 Va. at 116, 546 S.E.2d at 451; Cantrell v. Crews, 259 Va.

47, 50, 523 S.E.2d 502, 504 (2000).

The circuit court is required to provide each party a

full and fair opportunity to determine whether prospective

jurors “stand indifferent in the cause.” LeVasseur v.

Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983);

see Roberts, 279 Va. at 116, 688 S.E.2d at 181. However, the

circuit court retains the discretion to determine whether the

parties have had sufficient opportunity to question the

prospective jurors. Juniper, 271 Va. at 396, 626 S.E.2d at

405; LeVasseur, 225 Va. at 581, 304 S.E.2d at 653. Also, the

circuit court retains the discretion to determine whether the

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parties should be permitted to question prospective jurors

outside the presence of the others. Tuggle v. Commonwealth,

228 Va. 493, 505, 323 S.E.2d 539, 546 (1984). Finally, when

this Court reviews a circuit court’s ruling on the seating of

a juror, we consider the voir dire of that juror as a whole,

and do not consider the juror’s isolated statements. Juniper,

271 Va. at 401, 626 S.E.2d at 408; Jackson v. Commonwealth,

267 Va. 178, 191, 590 S.E. 2d 520, 527 (2004); Green v.

Commonwealth, 262 Va. at 116, 546 S.E.2d at 451.

We hold that when viewed in its entirety, the voir dire

of each of the five jurors demonstrated that they were able to

serve impartially in the case. Juror Tuckwiller, whose sister

worked for the law firm representing VanMarter, expressed

unequivocally that this relationship would not interfere with

his ability to serve as an impartial juror. Juror Blankenship

initially stated that she might have difficulty rendering a

verdict against a police officer but quickly qualified her

statement and reconsidered her position. Juror Hodges simply

stated that she agreed with Juror Blankenship’s initial

response and did not state that she was unable to serve

impartially.

Jurors Harris and Draper, who had familial and personal

relationships with police officers, provided responses that

were equivocal and tentative. Juror Harris stated that

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“[m]aybe” she should not serve as a juror, that it “might” be

“a little difficult” to serve as a juror, and that she would

have “some concern” in rendering a verdict against VanMarter.

Similarly, Juror Draper stated that she “probably” felt

similarly to Juror Harris, but earlier had stated clearly that

she held no biased opinions in favor of police officers.

With regard to the burden of proof, Jurors Harris and

Draper indicated that they would follow the law even if they

disagreed with it. Notably, none of the statements by Jurors

Harris or Draper indicated that they would be unwilling or

unable to follow the instructions of the court.

We hold that the circuit court did not abuse its

discretion in refusing to permit Guthrie to continue

questioning the five jurors or to question them outside the

presence of the other jurors. As we have stated, it is within

the court’s discretion to determine whether counsel has had

adequate time to question jurors and whether to permit

individual voir dire. In this case, the circuit court noted

that the questioning by counsel was extensive and exhaustive

and that individual voir dire was not necessary to determine

that the jurors could serve impartially. From our review of

the entire voir dire, we conclude that the record supports the

circuit court’s determination. Therefore, we hold that the

circuit court did not commit manifest error in refusing to

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strike the five jurors for cause. See Roberts, 279 Va. at

116, 688 S.E.2d at 181; Juniper, 271 Va. at 401, 626 S.E.2d at

408; Cantrell v. Crews, 259 Va. 47, 50, 523 S.E.2d 502, 504

(2000); Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d

731, 732 (2001).

VII. Jury Instructions

We next consider Guthrie’s contention that the circuit

court erred in overruling his objections to Instructions 3 and

11. Instruction 3 stated: “The driver of an emergency vehicle

may exceed the speed limit provided he is not grossly

negligent.” Guthrie objected to this instruction on the basis

that it failed to inform the jury that police officers are

required to activate the emergency lights of their vehicles

when driving in excess of the speed limit.

The circuit ruled that Instruction 3, when read together

with Instruction 4, accurately reflected the law. Instruction

4 provided, in part: “The driver of a law enforcement vehicle

may disregard speed limits, while having due regard for safety

of persons and property, only when the operator of such

vehicle displays a flashing emergency light or lights, and

sounds a siren.”

Instruction 11 provided: “Immediately before entering a

highway from a private driveway, the driver of a vehicle has a

duty to stop and use ordinary care to yield to any vehicle

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that is so near the driveway that the driver cannot safely

enter the highway.” Guthrie objected to this instruction on

the ground that it did not inform the jury that a driver

traveling in excess of the speed limit forfeits the right of

way that he ordinarily enjoys when driving on a main roadway.

Guthrie also offered proposed Instruction C, which the circuit

court refused, that addressed circumstances under which a

driver forfeits his right of way.

The circuit court overruled Guthrie’s objection to

Instruction 11, stating that this Instruction, when read in

conjunction with Instruction 10, gave a “full and fair”

statement of the law. Instruction 10 stated, in relevant

part: “Hawthorne had a right to assume that other drivers on

Chaparral Drive, including [VanMarter], would use ordinary

care until she realized, or in the exercise of ordinary care

should have realized, that [VanMarter] was not doing so.”

On appeal, Guthrie observes that under Code § 46.2-

920(B), drivers of emergency vehicles may exceed the speed

limit only if their vehicles display emergency lights or sound

a siren. Guthrie contends that Instruction 3 misstated the

law and permitted the jurors incorrectly to conclude that

VanMarter lawfully could have exceeded the speed limit without

activating his vehicle’s emergency lights and sirens.

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 Guthrie further argues that based on the evidence at

trial, the jury could have concluded that VanMarter was

traveling in excess of the speed limit and, thus, had

forfeited his right of way under Code § 46.2-823. Guthrie

asserts that Instruction 11 should have included an

explanation of such forfeiture of the right of way, and that

Instruction 10 did not remedy this error because it too was

silent on that subject. Guthrie argues that, at best, the two

instructions were inconsistent. We disagree with Guthrie’s

arguments.

The purpose of jury instructions is to inform the jury

fully and fairly about the law applicable to the particular

facts of a case. Castle v. Lester, 272 Va. 591, 605, 636

S.E.2d 342, 349 (2006); Honsinger v. Egan, 266 Va. 269, 274,

585 S.E.2d 597, 600 (2003); H. W. Miller Trucking Co. v.

Flood, 203 Va. 934, 936, 128 S.E.2d 437, 439 (1962). In

reviewing the content of jury instructions, this Court’s

responsibility is to see that the law has been clearly and

accurately stated, and that the instructions cover all issues

fairly raised by the evidence. Hancock-Underwood v. Knight,

277 Va. 127, 131, 670 S.E.2d 720, 722 (2009); Molina v.

Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006);

Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858

(1982).

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 We read the granted jury instructions together and

consider them as a whole. Supervalu, Inc. v. Johnson, 276 Va.

356, 366, 666 S.E.2d 335, 341 (2008); Miller Trucking, 203 Va.

at 937, 128 S.E.2d at 440. The determination whether a jury

instruction accurately states the relevant law is a question

of law that we review de novo. Hancock-Underwood, 277 Va. at

131, 670 S.E.2d at 722.

In the present case, Instruction 3 correctly informed the

jury that VanMarter was permitted to disregard the speed limit

to the extent that he was not grossly negligent in his

actions. While Instruction 3 did not include the

qualification that emergency vehicles are required to display

activated lights and sirens when being operated at speeds in

excess of the posted speed limit, Instruction 3 did not

misstate the law. Furthermore, Instruction 4 unequivocally

addressed Guthrie’s concern that the jury be instructed about

the conditions under which police officers may disregard speed

limits, including that they must activate their police

vehicle’s emergency lights and siren.

Instruction 11 also provided the jury with a correct

statement of law and informed the jury that a driver always

has a duty to use ordinary care. Instruction 10 informed the

jury that a driver initially may assume that other drivers

also are acting with ordinary care. The issue of forfeiture

30
of right of way presented a legal issue distinct from the duty

of a driver to exercise ordinary care and, thus, the circuit

court did not err in refusing to add that principle to

Instruction 11.

In addition, we note that the circuit court’s decision to

refuse proposed Instruction C, which addressed the forfeiture

of right of way, has not been assigned as error in this case.

Accordingly, we hold that when all the jury instructions are

read together, the jury properly was instructed on the issues

addressed in Instructions 3 and 11 and, thus, the circuit

court did not err in granting those instructions.

VIII. Conclusion

For these reasons, we will dismiss the appeal of the

Hawthorne Estate, and will affirm the circuit court’s judgment

in favor of VanMarter in Guthrie’s appeal.

Record No. 091127 – Dismissed.
Record No. 091156 — Affirmed.

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