Alfonso v. Robinson

Present: All the Justices

ANTHONY MANUEL ALFONSO, ET AL.

v. Record No. 981333 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 16, 1999
DARLENE ROBINSON

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge

In this appeal of a judgment in favor of a plaintiff in a

negligence action, we consider whether the trial court erred in

instructing the jury on the issue of willful and wanton

negligence.

On November 23, 1994, shortly before midnight, Anthony

Manuel Alfonso was operating a tractor-trailer owned by

Schneider Specialized Carriers, Inc. He was proceeding in one

of three northbound lanes on Interstate Route 95 in Prince

William County on a "very dark" stretch of roadway. The truck

stalled and, although Alfonso could not restart the engine, he

was able to steer the truck into the right-hand lane of the

highway near a rest area.

About the same time, Darlene Robinson was operating a

passenger van at a speed of approximately 55-60 miles per hour

in the right-hand lane of the highway. Her van collided with

the rear of Alfonso’s trailer, and Robinson was seriously

injured in the accident.
 Robinson filed a motion for judgment against Alfonso and

Schneider Specialized Carriers, Inc. (collectively, Schneider),

seeking damages for her injuries. In her amended motion for

judgment, she alleged that Alfonso negligently failed to perform

certain statutory duties placed on the driver of a disabled

motor vehicle. In Count I, Robinson alleged that Alfonso

negligently failed to activate the truck's flashing hazard

lights and to use warning flares or reflective triangles as

required by state and federal regulations. In Count II,

Robinson alleged that Alfonso’s actions constituted willful and

wanton negligence and exhibited a total disregard for the safety

of the traveling public. In its grounds of defense, Schneider

alleged that Robinson was guilty of contributory negligence.

Prior to a jury trial, Schneider admitted that Alfonso was

guilty of simple negligence in failing to place reflective

triangles behind the disabled truck. At trial, Robinson and

Michelle Annette Andrus, who was driving directly behind

Robinson's van prior to the collision, testified that no flares

or reflective triangles had been placed in the roadway behind

the truck before the collision. They each also stated that

while Alfonso’s truck had the usual “running lights” on prior to

the accident, the truck’s flashing hazard lights were not

activated. Trooper G.R. Austin of the Virginia State Police,

who arrived at the accident scene about five minutes after the

2
collision, testified that the truck’s hazard lights had not been

activated at the time he arrived.

Both Robinson and Andrus stated that they had seen the

truck from about a quarter-mile or a half-mile away, but that

they thought the truck was moving. Robinson testified that she

did not realize the truck was stopped until she was “on top of

it.” She explained that she tried to avoid the collision by

applying her brakes and swerving to the left, but that she was

unable to get around the truck.

Andrus testified that she did not realize the truck was

stopped until the Robinson van collided with it. After the

accident, Andrus stopped to assist the occupants of Robinson’s

van. She observed Alfonso return from the rest area about 10 to

15 minutes after the accident.

Alfonso testified that when the disabled truck came to a

stop, he unsuccessfully tried to send a message to his employer

on the truck’s computer that the truck needed to be towed from

the highway. Alfonso then left the truck and ran about 100

yards to the rest area to use a telephone to call for

assistance. Although he had reflective triangles in his cab,

Alfonso did not place them behind the truck. He testified that

he thought he could run to the rest area, summon help, and

return to the truck within ten minutes to set out the triangles.

3
 Alfonso stated that he had activated the truck’s flashing

hazard lights before the truck stalled, because traffic in the

area had temporarily stopped due to road construction. He

testified that the truck’s “flashers” were still on when he left

the truck to run to the rest area. As he was returning from the

rest area after placing the telephone call, Alfonso heard

Robinson’s van collide with his truck. Alfonso estimated that

he had been away from the truck for three to five minutes.

On cross-examination, Alfonso testified that he had

attended eight weeks of training classes in 1990 in order to

work as an interstate truck driver, and that he received further

training from his employer later that year. Alfonso stated that

he learned from his training classes that the deployment of

warning flares or reflective triangles was “the first thing you

should do” after securing a truck that had become disabled. He

knew that the purpose of the safety triangles was “to warn

people who are coming up from behind and let them know that

you’re stopped.” He also stated that he was aware that federal

regulations governing interstate trucking require drivers to

place flares or reflective triangles at specified distances

behind a disabled truck “as soon as possible, but in any event

within ten minutes.”

Both at the end of the plaintiff’s case and at the

conclusion of all the evidence, Schneider moved to strike

4
Robinson’s evidence on Count II, arguing that Alfonso’s conduct

did not rise to the level of willful and wanton negligence. The

trial court denied both motions to strike the evidence and

submitted the case to the jury on the issues of proximate

causation, willful and wanton negligence, and contributory

negligence.

A special verdict form 1 returned by the jury contained three

findings: 1) that Alfonso’s negligence was a proximate cause of

the accident; 2) that Alfonso’s negligence was willful and

wanton; and 3) that Robinson was not guilty of contributory

negligence. The jury awarded damages in favor of Robinson in

the amount of $550,000, plus interest from the date of the

accident. On the defendants’ motion, the court reduced the

award of damages to $450,000, the amount requested in the

amended motion for judgment. The court denied Alfonso's motion

to set aside the verdict and entered final judgment in favor of

Robinson in that amount, plus interest. This appeal followed.

Schneider argues that the trial court erred in submitting

the issue of willful and wanton negligence to the jury. He

contends that Alfonso’s violation of a ”motor vehicle safety

statute” did not constitute willful and wanton negligence, and

1
Although the use of a special verdict form is not at issue
in this appeal, we note that this Court has not sanctioned the
use of special verdicts in negligence actions. See Johnson v.
Smith, 241 Va. 396, 401, 403 S.E.2d 685, 688 (1991).

5
that his conduct was not egregious and did not manifest a

complete disregard for the safety of others. Schneider asserts

that Alfonso’s actions in trying to contact his employer by

computer, and in running to the nearby rest area to obtain

assistance by telephone, demonstrate that Alfonso attempted to

remove the truck from the highway as soon as possible out of

concern for the safety of others.

In response, Robinson argues that the evidence concerning

Alfonso’s conduct presented a factual question of willful and

wanton negligence that was properly submitted to the jury.

Robinson contends that the evidence supported a conclusion that

Alfonso acted with conscious disregard for the rights of other

drivers on the highway, or with reckless indifference to the

knowledge that his conduct probably would cause injury to

another driver. We agree with Robinson's argument.

Willful and wanton negligence is action taken in conscious

disregard of another’s rights, or with reckless indifference to

consequences that the defendant is aware, from his knowledge of

existing circumstances and conditions, would probably result

from his conduct and cause injury to another. Harris v. Harman,

253 Va. 336, 340-41, 486 S.E.2d 99, 101 (1997); Clohessy v.

Weiler, 250 Va. 249, 252, 462 S.E.2d 94, 96 (1995); Griffin v.

Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984). Each

case raising an issue of willful and wanton negligence must be

6
evaluated on its own facts, and a defendant’s entire conduct

must be considered in determining whether his actions or

omissions present such a question for a jury’s determination.

Clohessy, 250 Va. at 253, 462 S.E.2d at 97; Huffman v. Love, 245

Va. 311, 315-16, 427 S.E.2d 357, 360-61 (1993).

Willful and wanton negligence, unlike gross or ordinary

negligence, requires an actual or constructive consciousness

that injury will result from the act done or omitted. Infant C.

v. Boy Scouts of America, Inc., 239 Va. 572, 580-81, 391 S.E.2d

322, 327 (1990); see Wolfe v. Baube, 241 Va. 462, 465, 403

S.E.2d 338, 339-40 (1991); Boward v. Leftwich, 197 Va. 227, 231,

89 S.E.2d 32, 35 (1955). However, ill will is not a necessary

element of willful and wanton negligence. Infant C., 239 Va. at

581, 391 S.E.2d at 327; Baker v. Marcus, 201 Va. 905, 909, 114

S.E.2d 617, 621 (1960).

Schneider is correct in its contention that the intentional

violation of a traffic law, without more, will not support a

finding of willful and wanton negligence. See Harris, 253 Va.

at 341, 486 S.E.2d at 102; Baker, 201 Va. at 910, 114 S.E.2d at

621-22. We disagree, however, with Schneider’s further

assertion that our prior decisions require a conclusion that

Alfonso was not guilty of willful and wanton negligence as a

matter of law.

7
 Schneider's argument relies primarily on our holdings in

Harris and Clohessy. 2 In Harris and Clohessy, we concluded as a

matter of law that the defendant’s conduct did not rise to the

level of willful and wanton negligence. In Harris, the evidence

showed that the defendant “tailgated” the plaintiff’s vehicle

while travelling at a speed between 10 and 30 miles per hour in

excess of “the 30 m.p.h. speed which was safe for that stretch

of road.” 253 Va. at 338, 486 S.E.2d at 100. In Clohessy, the

record demonstrated that the defendant’s vehicle hit a

pedestrian walking in the street as the defendant was driving at

night without headlights and with a fogged windshield while

operating her vehicle about ten miles in excess of the speed

limit. 250 Va. at 251, 462 S.E.2d at 96.

The defendants’ conduct in Harris and Clohessy was not as

egregious as Alfonso’s conduct. A critical characteristic

distinguishing the present case from those two cases is that

Alfonso was a professional driver who had received specialized

safety training warning against the very omissions he made prior

2
Schneider also relies on our holding in Harris Motor Lines
v. Green, 184 Va. 984, 37 S.E.2d 4 (1946). This reliance is
misplaced, however, because we did not decide an issue of
willful and wanton negligence in Green. There, the issue
presented was whether the trial court erred in instructing the
jury on the doctrine of last clear chance. Id. at 989, 37
S.E.2d at 5. We concluded that both drivers “were guilty of
such negligence as efficiently contributed to the accident and
which continued down to the time of the accident” and, thus,

8
to the accident. As stated above, Alfonso admitted at trial

that he was instructed that the deployment of safety flares and

reflective triangles was the first act that should be taken

after securing a disabled truck. He knew that the purpose of

such safety devices was to warn motorists that they were

approaching a stopped vehicle. Despite this training and

knowledge, Alfonso consciously elected to leave the disabled

truck in a travel lane of an interstate highway without placing

any warning devices behind it.

Such evidence that a defendant had prior knowledge or

notice that his actions or omissions would likely cause injury

to others is a significant factor in considering issues of

willful and wanton negligence. See e.g., Huffman v. Love, 245

Va. at 315, 427 S.E.2d at 360; Booth v. Robertson, 236 Va. 269,

270, 272-73, 374 S.E.2d 1, 2-3 (1988). In the present case,

Alfonso’s prior knowledge was a conceded fact that related

directly to the specific circumstances with which he was

confronted on the night of the accident.

Alfonso’s knowledge and omissions were factors to be

considered in the context of the other evidence in the case.

The evidence stated above showed that the disabled truck

remained entirely on the traveled portion of the highway, and

that the doctrine of last clear chance was inapplicable. Id.
at 990-91, 37 S.E.2d at 6.

9
that Alfonso left the truck unattended in nighttime traffic in a

"very dark” area where there were no light fixtures and the

speed limit was 55 miles per hour. Also, viewing the evidence

in the light most favorable to the plaintiff, Alfonso did not

activate his hazard lights before leaving the vehicle

unattended, and he did not return to the truck until 10 to 15

minutes after leaving it on the highway.

We conclude that the cumulative evidence of Alfonso’s

knowledge and conduct raised a question of willful and wanton

negligence for the jury’s determination. Thus, the trial court

did not err in instructing the jury on this issue.

For these reasons, we will affirm the trial court’s

judgment.

Affirmed.

10