Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.
GAIL K. ETHERTON OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 032104 June 10, 2004
JOHN DOE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Jr., Judge
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: "[H]e kept watching me . . . and Mom told me,
Don't look at him. But I noticed he kept staring at me the
whole time he was trying to drive up the road." 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: "It scared me because I was afraid that he was
going to hit the front of my car. And I veered over to the
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left to try to avoid him." 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 land 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 "just happened
so quick. It was bizarre. . . . I didn't want to have any
confrontation."
After this light turned green, the BMW seemed to
accelerate and Mrs. Etherton thought "that the whole incident
was over. And so I went ahead and started up the road, also.
And he pulled in front of me very quickly without signaling or
anything and just jerked his car in front of my car and
slammed on the brakes as hard as he could. And I knew I was
going to hit him. . . . And I held on to the steering wheel so
tight, and I almost stood . . . pushed down on the brake so
hard. You could smell the rubber from both cars, and the
smoke was coming. I hit the curb. I wasn't going to hit him
because I didn't want her [Deborah] to hit the windshield."
Her car made no contact with the BMW. The impact with the
curb caused her to strike the steering wheel with her right
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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 aside any verdict found for the plaintiff as
being without evidence to support it, e.g., Green v. Smith,
153 Va. 675, 679, 151 S.E.2d 282, 283 (1930), and it is
axiomatic that any fact that can be proved by direct evidence
may be proved by circumstantial evidence. To establish the
tort of assault, the plaintiff must prove that the defendant
performed "an act intended to cause either harmful or
offensive contact with another person or apprehension of such
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contact, and that creates in the other person's mind a
reasonable apprehension of an imminent battery." Koffman v.
Garnett, 265 Va. 12, 16-17, 574 S.E.2d 258, 261 (2003). There
is no requirement that the victim of such acts be physically
touched.
Here, the plaintiff's evidence was sufficient to warrant
an inference by the jury that the "John Doe" driver was
angered by the blowing of horns when he failed to proceed
through a green light; that he considered the plaintiff the
object of his anger; that his stare showed hostility toward
her; and that he made repeated attempts, ultimately
successful, to injure her or put her in fear of injury by
either colliding with her or by running her off the road. The
plaintiff testified unequivocally that she was "really, really
frightened." The jury could have concluded from the evidence
that the defendant's conduct was not merely negligent or
reckless, but was instead conduct "intended to cause harmful
contact or apprehension of such contact" and conduct that
created in the plaintiff's mind "a reasonable apprehension of
an imminent battery." Therefore, the trial court erred in
sustaining the motion to strike the plaintiff's evidence of
assault.
The plaintiff's evidence of willful and wanton conduct
stands upon the same footing. If accepted by the jury, that
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evidence would have warranted a conclusion that the defendant
caused injury to the plaintiff by deliberately swerving into
her lane of travel and then suddenly applying his brakes,
knowing that she would be forced into an emergency maneuver to
avoid colliding with him. The propensity for such an act to
cause injury was self-evident but it was done without regard
for the consequences.
We held, in Booth v. Robertson, 236 Va. 269, 273, 374
S.E.2d 1, 3 (1988), that punitive damages are warranted not
only by malicious conduct, but also by "negligence which is so
willful or wanton as to evince a conscious disregard of the
rights of others." In Griffin v. Shively, 227 Va. 317, 321,
315 S.E.2d 210, 213 (1984), we said:
Willful and wanton negligence is acting consciously
in disregard of another person's rights or acting
with reckless indifference to the consequences, with
the defendant aware, from his knowledge of existing
circumstances and conditions, that his conduct
probably would cause injury to another.
We added a commentary to these cases in Infant C. v. Boy
Scouts of America, 239 Va. 572, 581-82, 391 S.E.2d 322, 327
(1990):
The hallmark of this species of tortious conduct is
the defendant's consciousness of his act, his
awareness of the dangers or probable consequences,
and his reckless decision to proceed notwithstanding
that awareness. Because such consciousness and
awareness are prerequisites, the use of the term
"negligence," in defining the tort, is a misnomer,
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to the extent that negligence is equated with
inadvertent neglect of a duty.
In Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174 (2003), we
considered the sufficiency of the evidence to support a
finding of willful and wanton conduct and an award of punitive
damages in a case where the defendant, apparently intoxicated,
drove into the rear of the plaintiff's car, came to the
plaintiff's car and ascertained that injuries had resulted
from the collision, and fled the scene. After a review of our
prior decisions, we concluded that the defendant's conduct,
although grossly negligent, was not willful and wanton because
there was no evidence to support a finding that, before the
accident, he had the required "actual or constructive
consciousness that injury will result from the act." 265 Va.
at 538, 579 S.E.2d at 178. In the present case, by contrast,
there was evidence that would have supported such a finding.
The appellee argues that the jury's finding against the
plaintiff on the issue of negligence renders harmless any
error in striking the evidence on the other two counts.
Because the torts of negligence, assault, and willful and
wanton conduct are conceptually distinct, as discussed above,
we do not agree.
Because the court erred in granting the motions to strike
the evidence, we will reverse the judgment and remand the case
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for trial on the issues of assault and willful and wanton
conduct.
Reversed and remanded.
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