Present: All the Justices
SIDNEY M. WEBB
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 980014 November 6, 1998
JASON W. RIVERS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
In this appeal, we consider whether the trial court erred
in striking the plaintiff's claim for punitive damages.
The plaintiff, Sidney M. Webb, filed his motion for
judgment against Jason W. Rivers. The plaintiff alleged that
he was injured in an automobile accident and that his injuries
were proximately caused by the defendant's "carelessness,
recklessness and negligence." The plaintiff sought
compensatory and punitive damages.
The plaintiff produced the following evidence at a jury
trial. On May 3, 1995, the plaintiff was operating a
Chevrolet Blazer, and his wife and young daughter were
passengers. As the plaintiff, who was traveling on Hamilton
Street in the City of Richmond, drove through the intersection
of Hamilton and Grove Avenue, he observed a car driven by the
defendant. The defendant ignored a red light, drove through
the intersection, and his car collided with the plaintiff's
vehicle, which rolled over and "came to rest on its roof."
Jacqueline Webb, the plaintiff's wife, testified that the
defendant was driving his car at 90 m.p.h. The legal speed
limit at the intersection where the accident occurred is 25
m.p.h.
Officer Walter P. Wilhelm, a Richmond police officer who
responded to the accident, testified that when he arrived at
the scene, the defendant was "entirely intoxicated sitting
behind the wheel of a wrecked automobile." The defendant,
whose car was on Grove Avenue, told Officer Wilhelm that the
defendant thought he was on the Boulevard, another street in
Richmond. The defendant also stated that the time was 10:00
p.m. when it was actually 11:50 p.m.
Officer Wilhelm testified that "[i]t was hard to
understand anything [the defendant] said" and that the
defendant admitted that he had been drinking alcoholic
beverages that night. Officer Wilhelm described the defendant
as "very" drunk and that he had a very strong odor of alcohol
about his person. Officer Wilhelm testified that the
defendant was in a stupor because he was so drunk.
At 1:39 a.m. on May 4, 1995, about two hours after the
accident, a breath test indicated that the defendant had a
blood alcohol level of .21%. The blood alcohol level to
establish a rebuttable presumption of intoxication in Virginia
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at that time was .08%. The defendant pled guilty to the
charge of driving under the influence.
The defendant made a motion to strike the plaintiff's
claim of punitive damages after the plaintiff rested his case.
The trial court sustained the motion, and the case proceeded
to a jury which returned a verdict in favor of the plaintiff
and awarded him $350 in compensatory damages. The trial court
entered a judgment confirming the jury's verdict. The
plaintiff appeals, challenging that portion of the trial
court's judgment which sustained the defendant's motion to
strike the plaintiff's claim for punitive damages.
Code § 8.01-44.5 states in relevant part:
"In any action for personal injury or death
arising from the operation of a motor vehicle . . .
the finder of fact may, in its discretion, award
exemplary damages to the plaintiff if the evidence
proves that the defendant acted with malice toward
the plaintiff or the defendant's conduct was so
willful or wanton as to show a conscious disregard
for the rights of others.
"A defendant's conduct shall be deemed
sufficiently willful or wanton as to show a
conscious disregard for the rights of others when
the evidence proves that (i) when the incident
causing the injury or death occurred the defendant
had a blood alcohol concentration of 0.15 percent or
more by weight by volume (ii) at the time the
defendant began, or during the time he was, drinking
alcohol, he knew that he was going to operate a
motor vehicle . . . and (iii) the defendant's
intoxication was a proximate cause of the injury to
or death of the plaintiff."
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The plaintiff argues that the trial court erred by
striking his statutory claim for punitive damages because he
believes that he proved each of the aforementioned statutory
elements. The defendant argues, however, that the plaintiff
failed to prove that "at the time the defendant began, or
during the time he was, drinking alcohol, he knew that he was
going to operate a motor vehicle . . . ." Id.
We agree with the defendant. Code § 8.01-44.5 required
that the plaintiff prove each of the statutory elements
contained therein. Here, the plaintiff failed to produce any
evidence that at the time the defendant began drinking
alcohol, or during the time he was drinking alcohol, the
defendant knew he was going to operate a motor vehicle. The
record is simply devoid of such evidence. Therefore, we hold
that the trial court correctly struck the plaintiff's
statutory claim for punitive damages.
The plaintiff contends that even if he failed to satisfy
the requirements of Code § 8.01-44.5, he presented sufficient
evidence to support a common law claim for punitive damages.
The defendant, relying principally upon Puent v. Dickens, 245
Va. 217, 427 S.E.2d 340 (1993), responds that the plaintiff
failed to produce sufficient facts to support a common law
claim for punitive damages. We disagree with the defendant.
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In Puent, Edward W. Dickens, who was operating a pickup
truck, collided with the rear of a car in which Anne R. Puent
was a passenger. Puent filed a motion for judgment against
Dickens, seeking compensatory and punitive damages. According
to Puent's evidence, which was struck by the trial court,
Dickens had three drinks from a bottle of whiskey within 60 to
75 minutes before the truck he was driving collided with the
car in which Puent was a passenger.
The car in which Puent was traveling had stopped at a
traffic light, and the car's brake and rear lights were lit.
A witness testified that Dickens was driving very fast and
that apparently he did not apply his brakes before he collided
with the Puent car.
Immediately after the collision, Dickens consumed another
drink of whiskey as he sat in his truck. A short time after
the accident, a test of Dickens' breath indicated that his
blood alcohol content was 0.24% by weight which raised the
presumption that he was intoxicated. Dickens subsequently
pled guilty to the charge of reckless driving.
In Puent, we observed that "in order to create an issue
of punitive damages where misconduct or malice has not been
shown, a plaintiff must show that the defendant's conduct was
of 'such recklessness or negligence as evinces a conscious
disregard of the rights of others.'" 245 Va. at 219, 427
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S.E.2d at 342 (quoting Baker v. Marcus, 201 Va. 905, 909, 114
S.E.2d 617, 621 (1960)). We stated that the evidence of
record in Puent was insufficient to support an award of
punitive damages and, thus, we held that the trial court
properly struck the plaintiff's evidence.
We hold that unlike the plaintiff in Puent, Webb has
established sufficient facts from which a jury may infer that
the defendant's acts of recklessness or negligence evinced a
conscious disregard of the rights of others. Viewing the
evidence in the light most favorable to the plaintiff, the
defendant was traveling 90 m.p.h. in a residential
neighborhood with a 25 m.p.h. speed limit, and he drove his
car through a red light. Additionally, the defendant had a
blood alcohol content of .21%, and he was so intoxicated that
he did not know where he was, nor did he know the time of
night. Therefore, the trial court should not have struck the
plaintiff's common law claim for punitive damages.
We will affirm that portion of the trial court's judgment
which held that the plaintiff failed to establish a claim for
punitive damages under Code § 8.01-44.5. We will reverse that
portion of the trial court's order which dismissed the
plaintiff's common law claim for punitive damages, and we will
remand this proceeding for a trial only on the plaintiff's
common law punitive damages claim.
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Affirmed in part,
reversed in part,
and remanded.
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