Present: All the Justices
MARK BRIAN HARRIS
v. Record No. 961774 OPINION BY JUSTICE ELIZABETH B. LACY
April 18, 1997
JULIAN DAVID HARMAN, JR., ET AL.
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
B.A. Davis, III, Judge
This appeal arises from an automobile accident involving
two vehicles. On August 1, 1992, Julian David Harman, Jr., was
driving Tracy Lee Sweeney and two of his friends home from the
Franklin County Speedway about 11:00 p.m. when a second
vehicle, driven by Mark Brian Harris, approached Harman's
vehicle from the rear. For some distance, Harris "tailgated"
the Harman vehicle; that is, the Harris vehicle "would get
'real close'" to the rear of the Harman vehicle. The two
vehicles were traveling at speeds estimated at 40 to 60 m.p.h.,
well above the 30 m.p.h. speed which was safe for that stretch
of road. As the vehicles approached a sharp curve, Harman
glanced in his rearview mirror to check Harris' position. When
Harman turned his eyes back to the road, his truck was almost
in the curve. He applied the brakes, but lost control of the
vehicle. The vehicle slid off the road and down into a creek
embankment. Harris' car followed Harman's vehicle off the road
at approximately the same point. There was no contact between
the vehicles, but Harman and Sweeney, among others, were
injured in the accident.
Sweeney filed a motion for judgment against Harman and
Harris seeking recovery for his injuries. Harman sought
recovery for his injuries in a motion for judgment he filed
against Harris. The two cases were consolidated. The jury
returned a verdict in favor of Sweeney and against Harman and
Harris jointly and severally for $25,000, and a verdict against
Harris in favor of Harman for $50,000.
Harris appealed both judgments maintaining that, as a
matter of law, his actions were not a proximate cause of the
accident and Harman was contributorially negligent. Harris
also challenged the verdicts as inconsistent. Harman assigned
cross-error to the trial court's refusal to instruct the jury
on Harris' willful and wanton negligence.
I.
Proximate Cause
Harris argues that he is entitled to final judgment in
both actions because the evidence established, as a matter of
law, that his actions were not a proximate cause of Harman's
vehicle skidding off the road. Harris does not challenge the
jury's determination that his actions were negligent, but
argues that the evidence shows that Harman's admitted excessive
speed and inattention were the sole proximate cause of the
accident as a matter of law. We disagree.
Harman testified that just before the accident, he was
"[n]ot focusing on what [he] was doing" because he was paying
attention to the Harris vehicle. He also testified that
Harris' actions frightened, scared, and distracted him. The
state trooper investigating the accident testified that when he
interviewed Harman two months after the accident, Harman stated
that he "didn't pay much attention to the vehicle being behind
him." The conflicting testimony in this record presents a
classic jury issue of whether Harris' tailgating was a
proximate cause of the accident, and the trial court was
correct in submitting the issue to the jury for resolution.
II.
Contributory Negligence
Harris argues that Harman's admissions that he was driving
at an excessive speed and failed to maintain a proper lookout
require a determination that Harman was contributorially
negligent, as a matter of law, and, therefore, that Harris is
entitled to final judgment in Harman's action against him.
Harman replies that the issue was properly submitted to the
jury because Harris' tailgating placed Harman in a position of
sudden peril, and, thus, the jury could find that Harman's
*
actions were reasonable under the circumstances. Harman bases
his position on our cases which have excused otherwise
negligent acts, such as Perlin v. Chappell, 198 Va. 861, 96
S.E.2d 805 (1957), in which we held
[i]f the circumstances are such as would reasonably
cause a normal person to become greatly excited or
frightened, he is not required to exercise the
coolness and sound judgment that he would be required
to exercise under ordinary circumstances. One who
*
Harman also argues that his excessive speed and failure
to keep a proper lookout were put into operation by Harris'
tailgating and, therefore, the tailgating "entirely
supersede[d] the operation" of Harman's negligence. The jury
instruction upon which Harman relies, however, refers to
whether Harris' negligence was superseded by Harman's, not vice
versa. Harman did not offer a jury instruction on Harris'
negligence as a superseding cause of the accident and we will
not consider that argument here.
negligently places another in a position of sudden
peril may not complain that the other fails to react
with wisdom and promptness.
Id. at 866, 96 S.E.2d at 809.
In Perlin, the plaintiff faced a runaway 1,100 pound
heifer, and was "so frightened that 'he could not move.'" Id.
at 863-64, 96 S.E.2d at 808. Under these circumstances, the
plaintiff's failure to take reasonable steps to avoid injury
was not negligent. Like Perlin, all the cases relied on by
Harman in which the sudden peril doctrine has been applied
involved situations in which the actor engaged in some activity
which could be considered negligent under normal circumstances,
but was not because the actor was faced with immediate peril.
Norfolk & Portsmouth Belt Line R.R. Co. v. Parker, 152 Va. 484,
500-01, 147 S.E. 461, 466 (1929)(failing to draw arm in car
before collision with train); Richmond Traction Co. v.
Wilkinson, 101 Va. 394, 404-05, 43 S.E. 622, 626 (1903)(boy
jumping off moving street car when ordered to do so by
conductor); South West Improvement Co. v. Smith's Adm'r, 85 Va.
306, 319, 7 S.E. 365, 371 (1888)(young boy opening door of mine
chamber when faced with run-away coal train).
In this case, Harris' tailgating did not present Harman
with immediate peril. While the record is not precise, it does
establish that Harman was aware of Harris' tailgating for four
to five miles before the two vehicles approached the curve and
that Harman's speed was consistent throughout that four to five
mile stretch. Harman was familiar with the road, knew he was
approaching the curve, and knew he had to slow down to
negotiate it. Harman was not put in sudden peril by Harris'
tailgating, but he had been aware of, and had reacted to, the
situation for a period of time. During that time, Harman, by
his own admission, drove at an excessive speed and failed to
keep a proper lookout. Accordingly, Harman was
contributorially negligent as a matter of law, and the trial
court erred in submitting that issue to the jury.
III.
Willful and Wanton Negligence
Harman assigned cross-error asserting that the trial court
should have instructed the jury on willful and wanton
negligence and that Harman's contributory negligence would not
bar his recovery from Harris if Harris was guilty of willful
and wanton negligence.
Willful and wanton negligence is one of three levels of
negligence. Simple negligence is the failure to use the degree
of care an ordinary person would exercise to avoid injury to
another. The second level of negligence, gross negligence, is
action which shows indifference to others, disregarding
prudence to the level that the safety of others is completely
neglected. Gross negligence is negligence which shocks fair-
minded people, but is less than willful recklessness. Griffin
v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 212-13 (1984).
Willful and wanton negligence, the third level, 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." Id. at 321, 315 S.E.2d at 213.
Harman argues that the evidence showed that Harris
intended to tailgate Harman, had prior knowledge of the road
and curve, and knew that his speed was in excess of the speed
required to safely negotiate the curve. These facts, Harman
contends, would support a finding by the jury that Harris' acts
were conscious, intentional acts, in "disregard of another
person's rights," and that Harris was aware, "from his
knowledge of existing circumstances and conditions, that his
conduct probably would cause injury to others."
Harman applies the phrases we have used to describe
willful and wanton negligence in characterizing Harris'
conduct. But adopting his analysis would turn every
intentional moving traffic violation into a case of willful and
wanton negligence. Traffic laws are established for the safety
of those who are on the public roads. Every time a driver
intentionally violates a traffic law, by definition, the
violator is on notice that other users of the road may be
injured as a result of his violation. Such conduct alone,
however, does not have the characteristics of conduct generally
classified as willful and wanton. See Baker v. Marcus, 201 Va.
905, 910, 114 S.E.2d 617, 621-22 (1960).
While each case must be resolved on its own facts, willful
and wanton negligence generally involves some type of egregious
conduct - conduct going beyond that which shocks fair-minded
people. Such conduct has ranged from a driver with a
significantly high blood alcohol content involved in an
accident after a prior collision with another car, exceeding
the speed limit, driving in the wrong lane, and leaving the
scene of the accident, Huffman v. Love, 245 Va. 311, 313, 427
S.E.2d 357, 359 (1993), to a driver intentionally chasing and
running into a bicyclist in a dispute over money, Friedman v.
Jordan, 166 Va. 65, 68, 184 S.E. 186, 187 (1936), but has not
included the actions of a drunk driver who was speeding, took
no evasive action to avoid a rear-end collision, and tried to
leave the scene of the accident, Puent v. Dickens, 245 Va. 217,
218-19, 427 S.E.2d 340, 341-42 (1993). The conduct complained
of in this case, Harris' speed and tailgating, falls far short
of the egregious conduct we have previously found necessary to
support a finding of willful and wanton negligence. See
Clohessy v. Weiler, 250 Va. 249, 253, 462 S.E.2d 94, 97 (1995),
and the cases discussed therein. Accordingly, we conclude that
the trial court did not err in refusing to instruct the jury on
willful and wanton negligence.
IV.
Summary
In summary, we conclude that the trial court properly
submitted the issue of whether Harris' actions were a proximate
cause of the accident to the jury and that the trial court did
not err in refusing to instruct the jury on willful and wanton
negligence. Therefore, we will affirm that part of the
judgment awarding Sweeney $25,000 for which Harris is jointly
and severally liable with Harman. Because we conclude that
Harman was contributorially negligent, as a matter of law, we
will reverse that part of the judgment awarding Harman $50,000
damages, and enter final judgment in favor of Harris on that
issue. In light of this disposition, we need not address
Harris' challenge that the verdicts were conflicting.
Affirmed in part,
reversed in part,
and final judgment.