Present: All the Justices
DEBRA S. LEE, AS MOTHER AND NEXT
FRIEND OF ROY JAMES LEE, A MINOR,
ET AL.
OPINION BY JUSTICE ELIZABETH B. LACY
v. Record No. 970970 February 27, 1998
NATIONWIDE MUTUAL INSURANCE
COMPANY
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
In this case, we consider whether the trial court
erred in holding as a matter of law that the defense of
illegality barred the claim for damages of a 13-year-old
boy rather than submitting to the jury the issue of the
boy's consent to the illegal act.
Late in the evening of November 1, 1993, 13-year-old Roy
James Lee locked his bedroom door and left his house,
apparently through his bedroom window. His parents did not
know he was gone. Lee went to the home of his friend,
William Randall Slate, a high school freshman who was 16
years old. Around 11:00 p.m., Lee called his girlfriend,
12-year-old Jessica Lee Fisher, and told her to take the
keys to her mother's car from the coffee table and meet Lee
and Slate at the basement door of her house. Fisher's
mother had already gone to bed.
Fisher changed her clothes, got the keys, and met the
boys as planned. She gave the keys to Lee who, in turn,
gave them to Slate. When the group walked to Mrs. Fisher's
car, they heard the motor running on a neighbor's car
parked nearby. They decided not to take Mrs. Fisher's car
at that time because they feared being discovered.
Instead, Lee and Slate unsuccessfully tried to take a
motorized bicycle parked nearby. The group then walked to
Slate's house where they stayed for about an hour.
When the three youths returned to Fisher's house, the
motor of the neighbor's car was no longer running. Fisher
got into the back seat of her mother's car and Slate got in
the driver's seat. To avoid the possibility that Mrs.
Fisher might hear the engine start, Lee pushed the car some
distance away from its parking place. Lee then got into
the front passenger's seat. For the next hour and a half,
Slate drove the group around the area in Mrs. Fisher's car.
Both Fisher and Lee knew that Slate had only a learner's
driving permit.
At some point, Fisher asked Slate to return to her
home, and he agreed to do so. Around 2:00 a.m. on the
return trip, Fisher noticed that Slate was driving at a
speed of between 40 and 45 m.p.h. and asked him to slow
down. She also observed a "loose gravel" sign.
About one hour later, at 3:10 a.m., Virginia State
Trooper Gene E. Ayers received a call to investigate an
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accident on a portion of Route 605 that was under
construction. The road at the accident location was an
unmarked gravel surface 15 feet wide with ditches on both
sides. When Trooper Ayers reached the accident scene, he
found 270 feet of wavy tire marks in the gravel leading to
one of the ditches. Mrs. Fisher's car was approximately 30
feet off the road. Trooper Ayers found Fisher "in and out
of consciousness" in the back seat of the car. Lee was
outside the car, halfway between the car and the road. The
temperature was below freezing and some of the blood on
both Lee and Fisher had begun to freeze. Slate was not at
the scene of the accident when Ayers arrived.
Lee suffered severe head injuries in the accident
resulting in catastrophic, permanent brain damage, and
permanent disability.
Lee's mother, Debra S. Lee, filed a motion for
judgment against Slate on her own behalf and on behalf of
Lee as his next friend. Since Slate was an uninsured
motorist, Nationwide Mutual Insurance Company (Nationwide),
Debra Lee's uninsured motorist insurance carrier, defended
the action. Nationwide filed an answer and a special plea
asserting the defense of illegality. At trial, on motion
by Nationwide, the court struck Lee's evidence and held
that, as a matter of law, Lee freely and voluntarily,
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without coercion or duress, consented to participation in
the illegal act that resulted in his injuries. The trial
court entered judgment in favor of Nationwide. Lee
appeals, claiming the trial court erred in its application
of the illegality defense.
The illegality defense is based on the principle that a
party who consents to and participates in an illegal act
may not recover from other participants for the
consequences of that act. Miller v. Bennett, 190 Va. 162,
164-65, 56 S.E.2d 217, 218 (1949). The defense will be
applied to bar recovery if the evidence shows that the
plaintiff freely and voluntarily consented to participation
in the illegal act, without duress or coercion. Trotter v.
Okawa, 248 Va. 212, 216, 445 S.E.2d 121, 123-24 (1994). As
with other defenses, the party raising the defense has the
burden to establish it.
While none of our prior cases has involved the
application of the defense of illegality to acts of a
person younger than 14 years of age, Lee does not contend
that the defense is unavailable in such cases. Nor does
Lee dispute that taking Mrs. Fisher's car without
permission was an illegal act. Rather, Lee asserts that
the evidence presented conflicting factual issues as to
whether Lee freely and voluntarily, without duress or
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coercion, consented to participation in the illegal act,
and, therefore, that the trial court should have submitted
resolution of these issues to the jury rather than deciding
them as a matter of law. In support of his position, Lee
argues that the trial court's error was based on both its
failure to apply a rebuttable evidentiary presumption that
a person between the ages of 7 and 14 is incapable of
consenting to an illegal act and its failure to consider
the evidence in the light most favorable to Lee. However,
Lee's position is not supported by either the record in
this case or the law of this Commonwealth.
Lee argues that minors between the ages of 7 and 14 are
afforded the protection of certain rebuttable presumptions
of incapacity when charged with criminal culpability,
citing Law v. Commonwealth, 75 Va. 885, 889 (1881), or
contributory negligence, citing Doe v. Dewhirst, 240 Va.
266, 268, 396 S.E.2d 840, 842 (1990). The trial court,
according to Lee, either should have applied those
presumptions here or created and applied an ad hoc
rebuttable presumption based on the circumstances of this
case. We disagree.
Neither of the above standards is applicable to a
determination of whether a person has engaged in an illegal
act, for purposes of the illegality defense. That
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determination is an objective inquiry. See Zysk v. Zysk,
239 Va. 32, 35, 404 S.E.2d 721, 722 (1990). However,
whether the defense will be applied requires more than a
simple showing that the plaintiff committed the illegal
act. As we have said, the defendant must also prove that
the plaintiff consented to the commission of the illegal
act and engaged in it, freely and voluntarily, without
duress or coercion. This evidentiary burden necessarily
includes consideration of the maturity, intelligence, and
mental capacity of the plaintiff, regardless of age. Given
this burden of proof, the rebuttable presumption suggested
by Lee would serve no additional purpose and would provide
no additional protection to the minor plaintiff. Thus,
there is no legal basis or persuasive rationale for
imposing the type of presumption suggested by Lee, and the
trial court correctly declined to do so.
We now turn to Lee's assertion that the evidence of
voluntary consent, duress, and coercion was in conflict,
and therefore, the trial court should have submitted the
issue to the jury. Viewing the evidence in the light most
favorable to Lee, as we must when reviewing a motion to
strike, Austin v. Shoney's, Inc., 254 Va. 134, 135, 486
S.E.2d 285, 285 (1997); Meador v. Lawson, 214 Va. 759, 761,
204 S.E.2d 285, 287 (1974), we conclude that the trial
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court did not err in holding that reasonable persons could
not disagree that Lee freely and voluntarily, without
duress or coercion, consented to his participation in an
illegal act.
The record shows that Lee was capable of understanding
the nature of his acts and had the ability to make choices
about his behavior. At the time of the illegal act, Lee
was almost 14 years old. He performed at an average level
in school and was capable of better performance. His
behavior at school was average, and he played on organized
sports teams. He complied with his parents' directions not
to ride a motorized bicycle under certain circumstances.
While described as a "follower" in his relationship with
Slate, there is no evidence to support a finding that Lee
was incapable of withholding consent or making other
choices regarding his behavior.
With regard to the incident in question, the record
shows that, outside the presence of Slate, Lee actively
planned to take Mrs. Fisher's car and referred to the plan
as "steal[ing]" the car when talking to Fisher. He told
Fisher to take the keys, locked his bedroom door to avoid
detection, and left his home through his bedroom window.
He turned the keys over to Slate. Lee pushed the car away
from Fisher's house to avoid detection and, according to
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Fisher's testimony, during the ride in Mrs. Fisher's car,
never tried to stop Slate, alter the way Slate was driving,
or get out of the car. ∗
Lee argues that his actions were taken, not freely and
voluntarily, but under duress and coercion by Slate. Lee
relies on Fisher's testimony that Slate was the "leader"
and Lee the "follower," that Lee wanted to impress Slate,
that Lee would not get into trouble unless Slate was
present, and that Lee would "act differently" when Slate
was around. Lee also relies on Fisher's testimony that
when Lee called her to plan the taking of her mother's car,
she heard Slate in the background directing Lee to "tell me
if we didn't take Mom's car, then they were going to bust
out the windshield."
This evidence suggests that when Lee was with Slate he
engaged in activity which he might not have undertaken by
himself or with others. This evidence does not, however,
support a conclusion that the change in Lee's demeanor or
his actions were the result of coercion or duress by Slate,
or that Lee had no control over his actions when he was
with Slate. Rather, the evidence suggests that Lee engaged
in actions which he believed would impress Slate and keep
∗
Lee has no memory of the accident or the events
surrounding it.
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Slate as his friend. No expert evidence was presented that
Slate's relationship with or influence on Lee in some way
deprived Lee of his ability to make choices about his
actions either on the night in question or at any other
time. Therefore, we conclude that, based on the record,
the trial court was correct when it decided that reasonable
persons could not disagree that Lee consented to his
participation in an illegal act and that the illegality
defense barred his recovery for injuries sustained as a
result of that illegal act.
Accordingly, the judgment of the trial court will be
affirmed.
Affirmed.
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