Present: All the Justices
KARL SCHLIMMER
v. Record No. 031773 OPINION BY JUSTICE CYNTHIA D. KINSER
June 10, 2004
POVERTY HUNT CLUB, ET AL.
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
Honorable James A. Luke, Judge
Karl R. Schlimmer (“Schlimmer”), and his parents,
Herman and Doreen Schlimmer, filed a second amended motion
for judgment against Nolen L. Cofield (“Cofield”), Poverty
Hunt Club (“Hunt Club”), and 12 other defendants for
personal injuries Schlimmer sustained in a hunting accident
when Cofield shot him. A jury returned a verdict in favor
of Cofield and the Hunt Club (collectively, “the
Defendants”).1 After considering Schlimmer’s motion to set
aside the jury verdict, the circuit court affirmed the
verdict and entered judgment in favor of Cofield and the
Hunt Club.
Schlimmer appealed to this Court claiming that the
circuit court erred by refusing to find Cofield negligent
as a matter of law; by not granting a negligence per se
instruction; by refusing to set aside the verdict on the
1
On brief, the appellees contend that the parents, as
well as all the defendants except Cofield and the Hunt
Club, were nonsuited from the case. That fact is not clear
in the record. Nevertheless, Cofield and the Hunt Club
were the only defendants before the jury.
basis that there was insufficient evidence to sustain a
defense of contributory negligence or to find that
Schlimmer’s alleged contributory negligence was a proximate
cause of the accident; and by refusing to strike the
defense of contributory negligence. Because we conclude
that Schlimmer was entitled to a negligence per se
instruction, we will reverse the circuit court’s judgment.
RELEVANT FACTS
Schlimmer’s father had been a member of the Hunt Club
for several years. Schlimmer, who was 14 years old at the
time of the accident, had been accompanying his father
since he was 11 years old as a guest on hunting expeditions
on property leased to the Hunt Club. In approximately 1995
or 1996, Schlimmer and his father attended a hunter safety
education class together.
On the morning of November 23, 1996, Schlimmer, his
father, Cofield, and other members of the Hunt Club
gathered for the second hunt of the day. The members
decided in which area of the property to conduct the hunt
and assigned hunting stands to the hunters. Schlimmer and
his father were assigned a stand known as “Fletcher’s Old
Stand.” They were told that someone would meet them at the
“loading dock” and show them where their assigned stand was
located. However, no one ever met them there. After
2
waiting about 10 to 15 minutes, Schlimmer’s father decided
that he and his son could find the stand by themselves, and
they proceeded to walk into the “brush.” They soon found a
stand familiar to Schlimmer’s father and stopped there
instead of proceeding to their assigned stand. Schlimmer
sat down on a bucket and his father sat on a log.
After a few minutes, the two saw Cofield walk by
within 25 to 30 yards of where Schlimmer and his father
were sitting. Neither of them said anything to Cofield so
as to make him aware of their presence. Schlimmer’s father
admitted that Cofield probably did not see either him or
his son as Cofield walked past them. Schlimmer then
questioned his father about whether they were in “a good
place” and asked if they should move to a different
location. Schlimmer testified, “In my mind I was in a safe
place but not the right place.” They discussed the
situation and had decided they should move to another
location when Schlimmer was shot by Cofield.
Up until that moment, Schlimmer had sat with his back
against a tree that had a trunk of six to eight inches in
diameter. He had not stood up or moved except to look
around nor had his father. Schlimmer was wearing a blaze
orange hat and a camouflage jacket.
3
A game warden who investigated the accident testified
that it would have been “virtually impossible” to see
Schlimmer from the tree stand in which Cofield was
situated. Pictures taken by the game warden showed that
the area in which Schlimmer and his father had stopped
contained numerous trees and brush. The game warden
measured a distance of 67 yards between Cofield’s tree
stand and the spot where Schlimmer was sitting.
In both an oral and written statement given to the
game warden just after the shooting accident occurred,
Cofield stated that he had seen one deer; and then about 20
minutes later, he saw something moving, thought it was a
deer, and shot. Cofield’s testimony at trial, however, was
different. He stated that, after he climbed up a ladder to
his tree stand and loaded his gun, he saw two deer pass but
was not able to get off a shot at them. Cofield then saw
“a buck coming to [his] far left.” He shot at the buck but
hit Schlimmer. Cofield testified that, at the time he
fired his shotgun, he did not know that Schlimmer and his
father “were where they were.” “No one was supposed to be
there,” Cofield stated.
The game warden charged Cofield with the reckless
handling of a firearm in violation of Code § 18.2-56.1(A).
That statute makes it “unlawful for any person to handle
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recklessly any firearm so as to endanger the life, limb or
property of any person.” Code § 18.2-56.1(A). Cofield
pled guilty to the charge.
ANALYSIS
The dispositive issue in this appeal concerns the
circuit court’s refusal to instruct the jury on negligence
per se. The circuit court stated the following reasons for
its refusal to do so: “[Cofield] could have been convicted
of reckless handling of a firearm if nobody had been hit.
If he hadn’t touched the plaintiff, the handling of the
firearm was reckless. And I think we’ve got to rely on the
negligence to get to the verdict on this.”
Schlimmer argues he was entitled to an instruction on
negligence per se because Cofield recklessly handled a
firearm in violation of Code § 18.2-56.1(A). The
Defendants, however, contend that Cofield’s conviction for
violating that statute was not “conclusive evidence of
negligence in a subsequent civil action.” They also argue
that the inconsistencies in the evidence about how Cofield
came to fire his shotgun did not justify a negligence per
se instruction.
A litigant is entitled to jury instructions supporting
his or her theory of the case if sufficient evidence is
introduced to support that theory and if the instructions
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correctly state the law. Price v. Taylor, 251 Va. 82, 85,
466 S.E.2d 87, 88 (1996); Bowers v. May, 233 Va. 411, 413-
14, 357 S.E.2d 29, 30 (1987); Hodnett v. Friend, 232 Va.
447, 452, 352 S.E.2d 338, 341 (1987); H. W. Miller Trucking
Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 439-40
(1962). The evidence presented in support of a particular
instruction “must amount to more than a scintilla.” Justus
v. Commonwealth, 222 Va. 667, 678, 283 S.E.2d 905, 911
(1981); Gibson v. Commonwealth, 216 Va. 412, 417, 219
S.E.2d 845, 849 (1975). “It is immaterial that the jury
could have reached contrary conclusions. If a proffered
instruction finds any support in credible evidence, its
refusal is reversible error.” McClung v. Commonwealth, 215
Va. 654, 657, 212 S.E.2d 290, 293 (1975). These principles
are likewise true with regard to instructions pertaining to
primary negligence. See Gravitt v. Ward, 258 Va. 330, 335,
518 S.E.2d 631, 634 (1999); Yeary v. Holbrook, 171 Va. 266,
287-88, 198 S.E.2d 441, 451 (1938).
The doctrine of negligence per se represents the
adoption of “the requirements of a legislative enactment as
the standard of conduct of a reasonable [person].” Butler
v. Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122 (1967).
When applicable, the violation of a statute or municipal
ordinance adopted for public safety constitutes negligence
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because the violation is the failure to abide by a
particular standard of care prescribed by a legislative
body. Moore v. Virginia Transit Co., 188 Va. 493, 497-98,
50 S.E.2d 268, 271 (1948). A party relying on negligence
per se does not need to establish common law negligence
provided the proponent of the doctrine produces evidence
supporting a determination that the opposing party violated
a statute enacted for public safety, that the proponent
belongs to the class of persons for whose benefit the
statute was enacted and the harm suffered was of the type
against which the statute was designed to protect, and that
the statutory violation was a proximate cause of the
injury. Halterman v. Radisson Hotel Corp., 259 Va. 171,
176-77, 523 S.E.2d 823, 825 (2000); Virginia Elec. & Power
Co. v. Savoy Constr. Co., 224 Va. 36, 45, 294 S.E.2d 811,
817 (1982).
The first two elements of negligence per se, whether
the statute was enacted for public safety and whether the
injured party was a member of the class of people for whose
benefit the statute was enacted and suffered an injury of
the type against which the statute protects, are issues of
law to be decided by a trial court. See Virginia Elec.,
224 Va. at 45, 294 S.E.2d at 817. The third element,
whether the statutory violation was a proximate cause of
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the injury, is generally a factual issue to be decided by
the trier of fact. Thomas v. Settle, 247 Va. 15, 20, 439
S.E.2d 360, 363 (1994); Smith v. New Dixie Lines, Inc., 201
Va. 466, 470, 111 S.E.2d 434, 437 (1959). Similarly, if
the violation of the statute is in dispute, that issue is
also for the trier of fact. Kimberlin v. PM Transp., Inc.,
264 Va. 261, 268, 563 S.E.2d 665, 668 (2002).
In this case, Schlimmer established that Cofield
violated a statute that was enacted for public safety and
that protects a class of people including hunters such as
Schlimmer. Cf. Bailey v. Commonwealth, 5 Va. App. 331,
334, 362 S.E.2d 750, 751 (1987) (the provisions of Code
§ 18.2-56.1(A) are not limited to hunters). He further
produced sufficient evidence to show that the harm suffered
“was of the type against which the statute was designed to
protect,” Halterman, 259 Va. at 176, 523 S.E.2d at 825, and
that his injury was caused by the violation. When an
injured person is a member of the class for whose benefit a
particular statute was enacted, violation of that statute
constitutes negligence per se and, “if such negligence is a
proximate or efficiently contributing cause of an injury,
it will support a recovery for damages for such injury.”
White v. Gore, 201 Va. 239, 242, 110 S.E.2d 228, 231
(1959). Accordingly, the circuit court erred in refusing
8
to instruct the jury on the doctrine of negligence per se.
See McClung, 215 Va. at 657, 212 S.E.2d at 293.
Contrary to the Defendants’ argument, the failure to
instruct on negligence per se was not harmless error.
Based on the record before us, we cannot determine whether
the jury found for the Defendants due to lack of primary
negligence or due to Schlimmer’s contributory negligence.
Thus, we cannot say that the error in refusing to instruct
on negligence per se was harmless. See Caplan v. Bogard,
264 Va. 219, 229, 563 S.E.2d 719, 724 (2002); Ring v.
Poelman, 240 Va. 323, 328, 397 S.E.2d 824, 827 (1990).
CONCLUSION
For these reasons, we will reverse the judgment of the
circuit court and remand this case for a new trial.2
Reversed and remanded.
2
In light of our decision, it is not necessary to
address Schlimmer’s remaining assignments of error.
We also express no view on whether the two
instructions on negligence per se proffered by Schlimmer
were correct statements of law. The Defendants did not
argue otherwise to the circuit court or on appeal.
9