Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
ROBIN R. YOUNG, ET AL.
v. Record No. 961032 OPINION BY JUSTICE BARBARA MILANO KEENAN
February 28, 1997
MARGARET A. LAMBERT,
ADMINISTRATRIX, ETC.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Richard C. Pattisall, Judge
In this appeal, we consider whether the trial court erred in
instructing the jury on assumption of the risk.
On October 25, 1991, Phillip M. Lambert, Lisa Jordan Jones,
Tammy Rutherford, and Christopher Reyes were killed when the
vehicle owned by Rutherford and operated by Lambert veered off a
road and collided with a tree. Robin R. and Robert R. Young,
administrators of Rutherford's estate (the plaintiff), brought
this wrongful death action against Margaret A. Lambert, the
administratrix of Phillip Lambert's estate (the defendant).
The evidence at trial showed that Rutherford drove Jones to
Reyes' house in Roanoke shortly before 11:00 p.m. on October 24,
1991. At this location, Reyes and Lambert climbed into the back
seat of Rutherford's vehicle. Rutherford was driving the vehicle
when the group departed from Reyes' house.
No one saw the four individuals alive after they left
Roanoke. The parties stipulated that the four remained together
from the time they were seen departing in Rutherford's vehicle
until the time of the accident.
The collision occurred at approximately 2:40 a.m. on Route
311 in Craig County, about 20 to 25 miles from Roanoke. Route
311 is a road that winds through hilly terrain. Near the
accident location, the northbound lane of Route 311 descends into
a sharp left-hand curve. Photographs introduced at trial showed
that the driver of Rutherford's vehicle failed to negotiate this
curve, and that the vehicle proceeded off the shoulder of the
roadway and struck a tree.
All four individuals died as a result of the impact. The
police found Lambert's body in the driver's seat, Jones' body in
the front passenger seat, Reyes' body in the left rear seat, and
Rutherford's body in the right rear seat. Blood samples taken
from the bodies revealed that Lambert had a blood-alcohol content
(BAC) of .12, Rutherford had a BAC of .10, Jones had a BAC of
.13, and Reyes had a BAC of .17.
Four witnesses testified that they did not observe Lambert
consume any alcoholic beverages before he left Roanoke in
Rutherford's vehicle. Two of these witnesses, Daniel Montgomery
and Theresa Harmon, observed Lambert immediately before he
entered Rutherford's vehicle and testified that he did not appear
intoxicated at that time.
Theresa Harmon also testified that neither Lambert nor Reyes
was carrying any liquor, or bag or container that might have
contained alcohol, when they entered Rutherford's vehicle.
Another witness, John Franklin, observed Rutherford and Jones
each drink one beer in his apartment at about 10:00 p.m., but
testified that neither appeared intoxicated when they left about
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30 minutes later.
The parties stipulated that Rutherford successfully
completed a high school course in driver's education in 1985.
The course included a two-week unit on the hazards of driving
under the influence of alcohol, and students were required to
pass a written exam in this unit to receive their certificate.
Both parties presented testimony from forensic toxicologists
regarding the effect that a BAC of .12 would have on a person's
mental and physical condition. Dr. Dale Carpenter, a
toxicologist employed by the Commonwealth's Division of Forensic
Science, stated that it is not possible to identify any specific
symptoms that a person having a certain BAC would exhibit.
However, he testified that, in general, a person with Lambert's
BAC would suffer impairment of judgment, inhibitions, and fine
and gross motor skills. Dr. Carpenter further stated that all
these factors could have affected Lambert's driving ability.
Dr. Robert Blanke, another toxicologist, testified that
outward signs of intoxication "vary somewhat" in individuals,
depending on their experience as drinkers, their age, and any
disease they might have. He stated that, since he had not known
Lambert, he could not state whether Lambert was able to conceal
signs of intoxication to prevent notice by others.
Dr. Blanke stated, however, that a person of normal
intelligence and experience would recognize an individual with a
BAC of .12 as being drunk. Dr. Blanke further testified that the
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probability of such an individual appearing "obviously drunk" to
an observer would increase if the observer had seen that
individual consume alcohol, or if the observer had completed a
driver education course.
At the close of the defendant's evidence, the plaintiff
moved to strike the defendant's affirmative defenses of
contributory negligence and assumption of the risk. The trial
court struck the contributory negligence defense, but instructed
the jury on assumption of the risk.
The jury returned a verdict in favor of the defendant. The
plaintiff moved to set aside the verdict on the ground that there
was no evidence from which the jury could have concluded that
Rutherford assumed the risk of riding with an intoxicated driver.
The trial court denied the plaintiff's motion and entered final
judgment in accordance with the jury verdict.
On appeal, the plaintiff contends that the defendant failed
to introduce any evidence showing that Rutherford knew that
Lambert's ability to drive was likely to be impaired, or that she
appreciated the nature and extent of the risk in remaining in the
vehicle while Lambert was driving. The plaintiff asserts that
the evidence showed nothing more than Lambert's BAC, which
provided an insufficient basis for an assumption of the risk
instruction.
In response, the defendant argues that the evidence was
sufficient to support a jury instruction on assumption of the
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risk. The defendant notes that Lambert was "sober" and "empty
handed" at 11:00 p.m. when he joined Rutherford, and that Lambert
and Rutherford remained in each other's presence for the rest of
the evening. Thus, the defendant contends, Rutherford had to be
aware that Lambert was drinking heavily over a short period of
time, and that his ability to drive was likely to be impaired.
We disagree with the defendant.
Assumption of the risk is a defense that is based primarily
on a subjective standard of "what the particular plaintiff in
fact sees, knows, understands and appreciates." Amusement Slides
v. Lehmann, 217 Va. 815, 818-19, 232 S.E.2d 803, 805 (1977)
(citation omitted). The essence of this defense is
venturousness, which requires proof that the plaintiff
voluntarily incurred the risk and fully appreciated its nature.
Id. at 819, 232 S.E.2d at 805; Buffalo Shook Co. v. Barksdale,
206 Va. 45, 48, 141 S.E.2d 738, 741 (1965). Thus, assumption of
the risk requires intentional exposure to a known danger. Arndt
v. Russillo, 231 Va. 328, 332, 343 S.E.2d 84, 87 (1986). The
burden of proving assumption of the risk rests with the
defendant. Id. at 334, 343 S.E.2d at 88.
Generally, the issue whether a plaintiff has assumed a risk
is a question of fact to be decided by the jury. Budzinski v.
Harris, 213 Va. 107, 111, 189 S.E.2d 372, 376 (1972). However,
before the issue of assumption of the risk may be submitted to
the jury, there must be sufficient evidence that the plaintiff
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had knowledge of the existing danger and willingly incurred its
risk. See Philip Morris, Inc. v. Emerson, 235 Va. 380, 403, 368
S.E.2d 268, 280 (1988). When the evidence would require the jury
to speculate to reach a verdict for the defendant on this ground,
an assumption of the risk instruction will not be granted. See
Tomlin v. Worley, 206 Va. 344, 351, 143 S.E.2d 866, 872 (1965).
An individual has assumed the risk of riding with an
intoxicated driver when she (1) voluntarily elects to ride with a
driver whom she knows has consumed alcohol to such an extent that
the driver's ability to drive is impaired or is likely to be
impaired, and (2) fully appreciates the nature and extent of the
risk involved in riding with the driver. Budzinski, 213 Va. at
110, 189 S.E.2d at 375. Applying this standard, we conclude that
as a matter of law, the evidence fails to show that Rutherford
assumed the risk of riding with Lambert in his intoxicated
condition.
Under the evidence, the jury was required to speculate in
order to find that Rutherford knew Lambert had consumed alcohol
to such an extent that his ability to drive was likely to be
impaired. Although Rutherford and Lambert remained in each
other's presence between 11:00 p.m. and the time of the accident,
there is no evidence that Rutherford saw Lambert drinking any
alcoholic beverages, or observed that his speech, muscular
movement, behavior, or driving conduct were affected by the
consumption of alcohol. In order to find that Rutherford
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voluntarily assumed a known risk, the jury was required to
speculate that Rutherford was awake while Lambert was drinking,
that she was able to observe all his actions, that her attention
was not diverted during the time that he consumed the alcohol,
and that she did not attempt to get out of the car or to dissuade
him from driving.
The fact that Lambert had a BAC of .12 shows only that he
had consumed a certain amount of alcohol. This fact does not
show subjective knowledge by Rutherford that Lambert had consumed
any amount of alcohol, or that his driving ability was likely to
be impaired. Further, the record contains no evidence concerning
the manner and degree to which Lambert manifested the effects of
alcohol consumption. Although Dr. Blanke testified that a person
of normal experience and intelligence would recognize an
individual having a BAC of .12 as being drunk, he had no
knowledge, and there was no evidence, of what Rutherford saw,
knew, understood, or appreciated. See Amusement Slides, 217 Va.
at 818-19, 232 S.E.2d at 805.
The fact that Rutherford had completed a course in driver's
education also does not constitute evidence of her subjective
knowledge of Lambert's condition that evening. As stated above,
the record does not contain any evidence regarding Lambert's
outward manifestations of the effects of alcohol consumption, or
regarding Rutherford's observations and understanding of
Lambert's condition. Absent such evidence that Rutherford knew
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Lambert's ability to drive was likely to be impaired due to his
consumption of alcohol, the record is insufficient to support a
jury instruction on assumption of the risk.
For these reasons, we will reverse the trial court's
judgment and remand the case for a new trial.
Reversed and remanded.
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