Present: All the Justices
MARLON E. JOHNSON, ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 982606 November 5, 1999
CARLA M. CAMPBELL
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Plaintiffs Marlon E. Johnson and Kaheen Sandridge filed
separate actions against defendant Carla M. Campbell seeking
recovery of damages as the result of personal injuries allegedly
received in a motor vehicle accident. In virtually identical
motions for judgment, consolidated for hearing below, the
plaintiffs alleged they were injured while passengers in a motor
vehicle negligently operated by defendant that left a highway in
Augusta County shortly after midnight on August 13, 1997, and
collided with a tree.
Responding, the defendant filed a grounds of defense,
counterclaim, and motion to dismiss in each action. The
plaintiffs filed grounds of defense and demurrers to the
counterclaims.
In the counterclaims, defendant made the following
allegations. During the hours preceding the accident, she
participated with a group of young persons, including the
plaintiffs, in a card game at a private residence. The rules of
the game required a player who "lost" to consume a specific
amount of beer.
Defendant was 17 years of age at the time and several other
participants also were minors. Plaintiffs Johnson and Sandridge
were 24 and 21 years of age respectively.
According to the allegations, the plaintiffs "encouraged"
the minors, including the defendant, to consume beer and use
marijuana, which they supplied to her, so that defendant's eyes
became "red and she appeared to be under the influence of
alcohol." Subsequently, plaintiffs "prevailed upon" defendant
to drive her automobile with the plaintiffs as passengers. At
the time of the accident, plaintiff Johnson "distracted her by
making unwanted physical contact," causing her to lose control
of the vehicle.
In the grounds of defense to the counterclaims and in
responses to requests for admissions, the plaintiffs admitted
they participated in the card game. However, they denied
encouraging defendant to participate and denied supplying her
with beer or marijuana.
In the motions to dismiss, the defendant asserted that
plaintiffs' actions were barred because each "plaintiff's injury
appears to arise as a consequence of his voluntary participation
in an illegal act."
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Subsequently, after considering argument of counsel on the
issues raised in the pleadings, the trial court dismissed the
motions for judgment and the counterclaims. The court concluded
that the plaintiffs voluntarily participated with defendant in a
card game involving the consumption of alcohol by all players,
including the minor defendant. The court noted that simple
possession of alcohol by a minor is unlawful. Code § 4.1-
305(A). The court also noted that plaintiffs rode voluntarily
with defendant on a trip for their mutual benefit after she had
consumed alcohol, and that no person under the age of 21 may
lawfully operate a motor vehicle after she has consumed any
alcohol, Code § 18.2-266.1(A).
The trial court decided that violations of the foregoing
statutes by a minor are acts of delinquency and that, by
voluntarily participating with defendant in the commission of
these acts, plaintiffs were guilty of contributing to her
delinquency in violation of Code § 18.2-371. And, the trial
court ruled as a matter of law that there was a "causal
connection" between the illegal conduct and the accident
requiring dismissal of the actions.
Upon the counterclaims, the trial court concluded that
defendant's allegations show "she voluntarily operated a motor
vehicle after consuming enough alcohol and marijuana to be a
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contributing cause" of the accident, and that "[t]his amounts to
assumption of risk as a matter of law."
The trial court employed an odd procedure; it treated the
plaintiffs' demurrers to the counterclaims as motions to dismiss
and the defendant's motions to dismiss as motions for summary
judgment. Nevertheless, even though the procedure below was
unusual, we can reach the merits of the appeal.
The primary appellate issue is whether the trial court
erred in ruling that any illegal conduct in which the plaintiffs
may have participated was a proximate cause of the alleged
injuries as a matter of law.
Virginia permits the employment of the so-called
"illegality" defense, which is based on the principle that a
party who consents to and participates in an illegal act cannot
recover damages from other participants for the consequences of
that act. Lee v. Nationwide Mut. Ins. Co., 255 Va. 279, 282,
497 S.E.2d 328, 329 (1998); Zysk v. Zysk, 239 Va. 32, 34, 404
S.E.2d 721, 722 (1990); Miller v. Bennett, 190 Va. 162, 164-65,
56 S.E.2d 217, 218 (1949). The consent must be "freely given
without fraud or duress." Zysk, 239 Va. at 34, 404 S.E.2d at
722. The main premise for the rule is "the idea that courts
will not assist the participant in an illegal act who seeks to
profit from the act's commission." Id.
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Repeatedly, this Court has insisted that, before the
defense can be successful, a causal relationship must be
established between participation in the illegal act and the
injuries or damage claimed. For example, in Lee, in which we
affirmed the trial court's enforcement of the defense and in
which the requirement of causation was not an appellate issue,
we noted that the trial court held that the plaintiff
voluntarily consented to participation in the illegal act that
"resulted" in his injuries. 255 Va. at 282, 497 S.E.2d at 329.
In Godbolt v. Brawley, 250 Va. 467, 463 S.E.2d 657 (1995),
we discussed the illegality defense, although the case was
decided on other issues. We said that the participant's
intentional criminal act was not "the direct cause" of his
injury and that the facts of Godbolt differed from the facts in
cases like Zysk and Miller in which there was a direct cause-
and-effect link. Godbolt, 250 Va. at 472, 463 S.E.2d at 660.
In Miller, the Court said that, when the illegality defense
is applied in tort actions, the consent or participation in an
unlawful act by plaintiff precludes recovery for injuries
sustained "as a result of that act." 190 Va. at 165, 56 S.E.2d
at 219.
We emphasize the requirement of direct causation, which the
trial court recognized, because defendant on appeal argues that
the injury need not be a proximate result of the illegal act.
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Instead, defendant contends, the injury merely must be "an
ultimate consequence" of the plaintiff's voluntary illegal acts.
The defendant is wrong, whatever a standard of "ultimate
consequence" may mean, for the reasons we have just outlined.
Turning to the question whether any unlawful conduct of the
plaintiffs was a proximate cause of their alleged injuries as a
matter of law, we conclude that the trial court erred in so
ruling.
As a preliminary matter, we will assume without deciding
that, contrary to the plaintiffs' contention, the requisite
level of "participatory" illegal conduct by plaintiffs is
present. At this stage of the proceedings, the facts are in
dispute concerning whether the plaintiffs merely were present in
the defendant's company or whether they bought alcohol for
defendant, supplied alcohol to her, encouraged her to consume
alcohol, or persuaded her to drive a motor vehicle. This issue
must be decided upon a full development of the facts, but we
will give the defendant the benefit of the doubt on this issue
at this juncture of the cases.
Given the facts developed thus far, however, many of which
are disputed, a jury question has been presented on the issue of
proximate cause. For example, furnishing alcohol to defendant
may be too remote an event to constitute proximate cause of the
plaintiffs' injuries. See Williamson v. The Old Brogue, Inc.,
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232 Va. 350, 353, 350 S.E.2d 621, 623 (1986) (individuals, drunk
or sober, responsible for own torts and drinking intoxicant, not
furnishing it, is proximate cause of injury). Indeed, the
motions for judgment did not claim that defendant's alcohol
consumption caused the accident; thus, at this stage of the
proceedings, the trial court erred in making a causal connection
between defendant's drinking and the accident. Also, if
plaintiff Johnson distracted defendant "by making unwanted
physical contact," as alleged, there is the factual question
whether plaintiffs' prior illegal acts directly caused their
alleged injuries. Consequently, we hold that the trial court
should not have dismissed the motions for judgment.
Finally, defendant has assigned cross-error. She claims
the trial court erred in dismissing the counterclaims. We
agree. Even if the defendant drove the vehicle after using
drugs and alcohol, as she alleges, and thus may have assumed the
risk of injury, the question remains whether that conduct was a
proximate cause of the accident in view of the disputed facts
about what actually caused her to lose control of the vehicle.
In other words, may a defendant assume the risk of "unwanted
physical contact" by driving after consuming intoxicants?
Thus, the judgments of the trial court in these two cases
will be reversed and the cases will be remanded for further
proceedings on the motions for judgment and the counterclaims.
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Reversed and remanded.
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