Wilby v. Gostel

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.

CHARLES DAVID WILBY

v. Record No. 021606

SHEREE T. GOSTEL, ADMINISTRATOR OF THE
ESTATE OF CARRIE ANNE NEWTON

DANIEL J. MIDDLETON, ET AL.
OPINION BY
v. Record No. 021646 JUSTICE LAWRENCE L. KOONTZ, JR.
April 17, 2003
SHEREE T. GOSTEL, ADMINISTRATOR OF THE
ESTATE OF CARRIE ANNE NEWTON

SHEREE T. GOSTEL, ADMINISTRATOR OF THE
ESTATE OF CARRIE ANNE NEWTON

v. Record No. 021655

CHARLES DAVID WILBY, ET AL.

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge

These appeals arise out of an action for wrongful

death in which the trial court granted partial summary

judgment to one of the defendants on the ground that the

decedent was contributorily negligent as a matter of law.

In companion appeals brought by the defendants, we consider

whether the trial court erred in permitting the

administrator of the decedent’s estate to take a voluntary

nonsuit as to all claims alleged in her motion for judgment

after the motion for partial summary judgment had been

granted. In a separate appeal, the administrator has
assigned error to the trial court’s granting the partial

summary judgment.

BACKGROUND

We will recite the facts relevant to the motion for

summary judgment in the light most favorable to the non-

moving party. Slone v. General Motors Corp., 249 Va. 520,

522, 457 S.E.2d 51, 52 (1995). The issue regarding the

nonsuit presents a question of law, and as such we review

the record on appeal under a de novo standard.

Transcontinental Insurance Co. v. RBMW, Inc., 262 Va. 502,

514, 551 S.E.2d 313, 319 (2001).

On March 8, 2000, Carrie Anne Newton (“Newton”) had an

argument with Charles David Wilby (“Wilby”), her boyfriend,

at the apartment that the couple shared in Henrico County.

Both Newton and Wilby had been consuming alcohol. At some

point that day, Wilby left the apartment and got behind the

wheel of a van parked outside. The van was owned by

Middleton Heating & Air, Inc., Wilby’s employer.

Newton followed Wilby to the van, and stepped onto its

front bumper so that she was positioned facing Wilby behind

the wheel. Although the parties dispute whether the van

was moving at the time Newton stepped onto the bumper,

Wilby subsequently caused the van to travel forward at a

speed of up to 25 miles an hour, and then to decelerate

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rapidly. Newton was thrown from the front of the vehicle

and sustained fatal injuries.

Sheree T. Gostel (“Gostel”), the administrator of

Newton’s estate, filed a motion for judgment on November

17, 2000, in the Circuit Court of Henrico County. The

first count of the motion for judgment alleged that Wilby

“operated the van while and despite the fact that Newton

was standing on the bumper of the van,” and, thus, was

responsible for the wrongful death of Newton as a result of

his “negligent operation of the van.” It was alleged

further in the same count that “Wilby’s actions constituted

. . . willful and wanton conduct and demonstrate such

recklessness as to evince a conscious disregard for the

rights of others.” The second count alleged that Wilby’s

failure to render assistance to Newton after she was

injured also constituted negligent and willful and wanton

conduct proximately contributing to Newton’s death.

The motion for judgment also named Middleton Heating &

Air, Inc. and Daniel J. Middleton, the owner and operator

of that company, as defendants (collectively “Middleton”)

in the third count. This count alleged that Middleton was

liable for Wilby’s actions under a theory of negligent

entrustment. All defendants filed answers to the motion

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for judgment denying liability and asserting the

affirmative defense of contributory negligence.

In response to requests for admission from Middleton,

Gostel admitted that Newton “had used intoxicants on the

night of March 8, 2000” and had voluntarily “climbed onto

the van operated by” Wilby. In response to requests for

admission from Wilby, Gostel denied that Newton had

“jumped” onto the van and denied that “the van being

operated by Charles David Wilby was moving” at the time she

stepped onto the bumper of the vehicle.

On October 15, 2001, Wilby filed a motion for summary

judgment asserting that the admissions made in response to

Middleton’s discovery established that Newton was

contributorily negligent in causing her death and sought

dismissal of the motion for judgment on that ground.

Gostel filed a brief opposing the motion for summary

judgment, contending that neither consuming intoxicants nor

stepping onto the bumper of a vehicle constituted

negligence per se and that a jury should decide the matter.

On October 26, 2001, the trial court held a hearing on

Wilby’s motion for summary judgment. At that hearing,

Wilby contended that Gostel had admitted that Newton had

climbed onto a moving vehicle because the admission stated

that the vehicle was “operated by” Wilby. Gostel contended

4
the admission was only that Wilby operated the vehicle at

some point, but that this did not necessarily mean that the

vehicle was moving when Newton climbed onto it. Gostel

noted that she had specifically denied that the van was

moving when Newton stepped onto its bumper. The trial

court observed that “the fact . . . missing is that the van

was moving. See there is nothing in these admissions that

says the van was moving.” The trial court took the matter

under advisement.

In an opinion letter dated November 6, 2001, the trial

court stated that “[t]he admissions in the pleadings show

that Ms. Newton was negligent as a matter of law . . .

[because the] Motion for Judgment states that she was

standing on the bumper of Mr. Wilby’s van while Mr. Wilby

operated it.” The trial court further opined that the

conclusion that Newton was negligent “does not end the

case, because plaintiff alleges ‘willful and wanton’

conduct by Mr. Wilby.” The trial court directed counsel

for Wilby to “submit an Order for partial summary judgment

on the issue of Ms. Newton’s contributory negligence,

preserving the remaining issues for trial.”

On January 14, 2002, the trial judge entered an order

granting partial summary judgment to Wilby, finding that

Newton was contributorily negligent as a matter of law

5
based upon the rationale stated in the November 6, 2001

opinion letter. The order further stated that “there

remain for trial material issues of fact respecting Wilby’s

conduct, whether it was ‘willful and wanton’, and whether

Wilby can rely upon Newton’s contributory negligence as a

defense under Wolfe v. Baube, 241 Va. 462 (1991).”

Also on January 14, 2002, Gostel filed a motion for a

nonsuit as to the claim asserted against Middleton. 1 On

January 24, 2002, Gostel filed a motion for a nonsuit as to

the claims against Wilby. In response to the motion for

nonsuit against him, Wilby proffered a draft order that

would grant the nonsuit, but expressly preserve the trial

court’s ruling that Newton was contributorily negligent,

1
Middleton did not join in Wilby’s motion for summary
judgment, and the trial court’s January 14, 2002 order did
not award judgment to Middleton on the issue of Newton’s
contributory negligence. Middleton did not independently
seek a determination of whether Newton’s contributory
negligence would bar recovery on the claim of negligent
entrustment. Accordingly, the trial court did not address
that issue. Whether contributory negligence by the
plaintiff will bar recovery under a claim of negligent
entrustment where the entrustment resulted in either simple
negligence or in willful and wanton negligence by the
bailee has not been addressed in Virginia. We need not
resolve that issue in this appeal. But see, e.g., Keller
v. Kiedinger, 389 So.2d 129, 133 (Ala. 1980) (“In cases of
negligent entrustment, as in any negligence case, the
defense of contributory negligence reflects the strong
public policy that one should not benefit from his own
negligence”).

6
and limit any refiling by Gostel to “the causes of action

that survived” the January 14, 2002 order. 2

Thereafter, Gostel filed a motion to reconsider the

January 14, 2002 order, and in the same pleading stated her

objections to the language in Wilby’s draft order of

nonsuit. On April 19, 2002, the trial court entered a

final order denying Gostel’s motion to reconsider. In

addressing the nonsuit issue, the trial court determined

that the holding of Dalloul v. Agbey, 255 Va. 511, 515, 499

S.E.2d 279, 282 (1998), relied upon by Wilby and Middleton,

was inapplicable to its January 14, 2002 ruling, because

the granting of “partial summary judgment in favor of the

defendants did not dismiss any claim(s) or count(s) with

prejudice.” Accordingly, the trial court awarded Gostel a

nonsuit on all claims. These appeals followed.

DISCUSSION

We awarded appeals to Wilby and Middleton on the

following assignment of error:

The trial court erred in the entry of its
Order of April 19, 2002 when it granted the
plaintiff’s request to suffer a voluntary nonsuit
as to all counts and claims in her Motion for
Judgment including the plaintiff’s claim for
negligence that was resolved by partial summary
judgment in the Court’s Order of January 14,
2002.

2
The draft order was not made a part of the record, but
the trial court quoted from it in its final order.

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 We also awarded an appeal to Gostel to consider

whether the trial court erred in finding that Newton was

contributorily negligent as a matter of law. However, any

consideration of the issue raised by Gostel in her appeal

necessarily is contingent upon our first finding that the

trial court erred in not limiting the nonsuit order. This

is so because an appeal from a nonsuit order is limited to

resolving disputes regarding the propriety of granting the

nonsuit. Otherwise, a nonsuit order is not an appealable

order. McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759,

761 (1995). Thus, only if we conclude that the trial court

erred in not preserving within the nonsuit order the ruling

that Newton was contributorily negligent will we be able to

reach the issue of whether that ruling was proper. See

Dalloul, 255 Va. at 514-15, 499 S.E.2d at 281-82. For this

reason, we will consider the issue raised in the Wilby and

Middleton appeals first.

Code § 8.01-380, which governs the right of a

plaintiff to take a voluntary nonsuit, provides, in

pertinent part, that:

A party shall not be allowed to suffer a
nonsuit as to any cause of action or claim, or
any other party to the proceeding, unless he has
done so before a motion to strike the evidence
has been sustained or before the jury retires

8
 from the bar or before the action has been
submitted to the court for decision.

In Dalloul, we held that “‘the action’ subject to a

plaintiff’s nonsuit request is comprised of the claims and

parties remaining in the case after any other claims and

parties have been dismissed with prejudice or otherwise

eliminated from the case.” 255 Va. at 514, 499 S.E.2d at

281. In that case, the trial court entered an order

dismissing with prejudice four of six counts of a motion

for judgment. 3 Subsequently, the trial court entered a

voluntary nonsuit order as to the entire case, overruling

the defendants’ request to limit the nonsuit order to the

two remaining counts. Reversing that judgment, we

concluded that “when the trial court dismissed with

prejudice Counts III through VI, the respective defendants

obtained a final disposition of those counts that was

adverse to Agbey and was res judicata as to those claims

. . . . Thus, when Agbey requested the nonsuit, Counts I

and II were the only claims remaining in the action.” Id.

at 514-15, 499 S.E.2d at 281-82.

Wilby’s motion for summary judgment was premised upon

Newton’s contributory negligence being an absolute bar to

3
A seventh count of the motion for judgment dismissed
in a prior ruling was not at issue in the subsequent
appeal.

9
recovery by the administrator of her estate for any

liability arising from his actions. However, as the trial

court noted, if the evidence were to show that Wilby’s

conduct rose to the level of willful and wanton negligence,

he could not rely upon Newton’s contributory negligence as

a defense unless Newton’s conduct also rose to that level

of negligence. Wolfe v. Baube, 241 Va. 462, 465, 403

S.E.2d 338, 339 (1991). “Willful and wanton negligence 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.” Griffin v. Shively, 227

Va. 317, 321, 315 S.E.2d 210, 213 (1984).

Nonetheless, Wilby and Middleton assert that the trial

court erred in ruling that Dalloul did not require a

limitation on the nonsuit order in this case. This is so,

they contend, because the claims of negligence and willful

and wanton conduct contained in both count 1 and count 2 of

the motion for judgment qualify as separate “claims.”

Thus, they contend that when the trial court found as a

matter of law that Newton was contributorily negligent,

Gostel’s “claim” for liability premised on Wilby’s simple

_______________________

10
negligence was resolved adverse to her and was barred by

the doctrine of res judicata, just as the claims in Dalloul

had been resolved adverse to the plaintiff in that case.

We disagree.

In Dalloul, each count of the motion for judgment

contained a separate claim based upon a distinct theory of

liability. 255 Va. at 512, 499 S.E.2d at 280. The trial

court’s dismissal of those counts eliminated entirely from

the case those theories of liability and the evidence that

would have been adduced thereon. Here, by contrast, the

trial court’s ruling did not eliminate either count 1 or

count 2 or otherwise limit the evidence that would be

relevant to the resolution of the claims made in those

counts.

The claims made in count 1 and count 2 of the motion

for judgment relate to Wilby’s liability for his conduct.

Gostel alleged that this conduct was “negligent” and also

that it was “willful and wanton.” However, these two

allegations do not represent separate claims or theories of

liability. Rather, in this context, negligent conduct and

willful and wanton conduct merely refer to different

degrees of proof that can be applied to the same theory of

liability. As we have previously explained:

11
 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.
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.

Harris v. Harman, 253 Va. 336, 340-41, 486 S.E.2d 99, 101

(1997) (internal citations and quotation marks omitted);

see also Alfonso v. Robinson, 257 Va. 540, 545, 514 S.E.2d

615, 618 (1999).

Accordingly, the trial court correctly determined that

its ruling on Wilby’s motion for summary judgment did not

render final judgment on the claims asserted in count 1 and

count 2 of Gostel’s motion for judgment. Rather, the

ruling had the effect of an in limine determination that in

the posture of this case Gostel’s burden of proof would be

to establish willful and wanton negligence. While it was

undoubtedly adverse to Gostel, this ruling did not dismiss

any count or claim in the motion for judgment, as in

Dalloul, and it did not dismiss with prejudice either Wilby

or Middleton as parties to the suit. Thus, we hold that

12
Gostel was entitled under Code § 8.01-380 to take a

voluntary nonsuit as to her entire cause of action and as

to all the defendants.

Having determined that the trial court did not err in

entering the nonsuit order without limitation, we hold that

the nonsuit order was not a final appealable order with

respect to the issue of contributory negligence decided in

the motion for summary judgment. See Spotsylvania County

School Board v. Seaboard Surety Co., 243 Va. 202, 220, 415

S.E.2d 120, 130 (1992) (holding that issues raised on

demurrer and motion for summary judgment were rendered moot

by the taking of a nonsuit). Accordingly, we will dismiss

Gostel’s appeal.

CONCLUSION

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

judgment entering a voluntary nonsuit as to all counts and

claims alleged in Gostel’s motion for judgment.

Record No. 021606 – Affirmed.
Record No. 021646 – Affirmed.
Record No. 021655 – Dismissed.

JUSTICE KINSER, dissenting.

I disagree with the majority’s conclusion that the

trial court’s order granting partial summary judgment

merely had “the effect of an in limine determination that

13
in the posture of this case [the plaintiff’s] burden of

proof would be to establish willful and wanton negligence.”

Rather, I conclude that the ruling was a determination on

the merits disposing of the simple negligence claims

asserted against one of the defendants, Charles David

Wilby. 4 Therefore, the nonsuit should have been limited to

the claims that survived the trial court’s award of partial

summary judgment. See Dalloul v. Agbey, 255 Va. 511, 514,

499 S.E.2d 279, 281 (1998).

A party may take a nonsuit as to any cause of action

or claim provided the party does so “before the action has

been submitted to the court for decision.” Code § 8.01-

380(A). An action is deemed “submitted to the court” when

both parties have yielded the issues to the court for

consideration and decision. Liddle v. Phipps, 263 Va. 391,

395, 559 S.E.2d 690, 693 (2002). A party may not take a

nonsuit after the court has announced its decision, Khanna

v. Dominion Bank of Northern Virginia, 237 Va. 242, 245,

377 S.E.2d 378, 380 (1989) (holding that the trial court

4
The plaintiff alleged simple negligence as well as
willful and wanton negligence with regard to both Wilby’s
operation of the vehicle (Count I) and his alleged failure
to render assistance (Count II). In a third count, the
plaintiff alleged both negligent and willful and wanton
entrustment claims against Middleton Heating & Air, Inc.
and Daniel J. Middleton.

14
did not err by denying defendant’s motion for nonsuit made

after the court had granted plaintiff’s motion for summary

judgment), or reached a final determination regarding any

claims or parties to those claims, Dalloul, at 514, 499

S.E.2d at 281. Instead, “ ‘the action’ subject to a

plaintiff’s nonsuit request is comprised of the claims and

parties remaining in the case after any other claims and

parties have been dismissed with prejudice or otherwise

eliminated from the case.” Id. (Emphasis added.)

In this case, Wilby moved for summary judgment on the

basis that Newton was contributorially negligent as a

matter of law. 5 Summary judgment exists “to allow trial

courts to bring litigation to an end at an early stage when

it clearly appear[s] that one of the parties [is] entitled

to a judgment in the case as made out by the pleadings and

the admissions of the parties.” Kasco Mills, Inc. v.

Ferebee, 197 Va. 589, 593, 90 S.E.2d 866, 870 (1956);

accord Carson v. LeBlanc, 245 Va. 135, 140, 427 S.E.2d 189,

192 (1993); see also Rule 3:18. Wilby’s summary judgment

motion, if it had been granted by the trial court, would

have disposed of the entire case as to Wilby.

5
The other two defendants did not join in Wilby’s
motion for summary judgment.

15
 The court, however, concluded that full summary

judgment was not appropriate. In a letter opinion

subsequently incorporated in the order granting partial

summary judgment, the court found that Newton’s negligence

was contributory and barred recovery as a matter of law.

However, the court recognized that contributory negligence

will not bar recovery against a defendant who is willfully

and wantonly negligent unless the plaintiff is also guilty

of willful and wanton conduct. See Wolfe v. Baube, 241 Va.

462, 465, 403 S.E.2d 338, 339 (1991). The court determined

that, while “[the] undisputed facts, Virginia law, [and]

argument of counsel” established that Newton was “negligent

as a matter of law,” the question remained whether Wilby’s

conduct was “willful and wanton,” and “whether Wilby

[could] rely upon Newton’s contributory negligence as a

defense.” Thus, the trial court granted “partial summary

judgment for Wilby on the issue whether Ms. Newton’s

conduct was contributory negligence.”

Partial summary judgment is “[a] summary judgment that

is limited to certain issues in a case and that disposes of

only a portion of the whole case.” Black’s Law Dictionary

1449 (7th ed. 1999). By granting partial summary judgment

on the issue of contributory negligence, the trial court

decided, on the merits, that portion of the case pertaining

16
to Wilby’s alleged simple negligence and thereby eliminated

those claims from the case. See Litchford v. Hancock, 232

Va. 496, 499, 352 S.E.2d 335, 337 (1987) (plaintiff’s

negligence that is proximate cause of accident will bar

recovery); Watson v. Virginia Elec. & Power Co., 199 Va.

570, 575, 100 S.E.2d 774, 778 (1957) (one who is guilty of

contributory negligence that caused injuries is not

entitled to recover damages therefor). Once those simple

negligence claims had been disposed of, “ ‘the action’

subject to [the] plaintiff’s nonsuit request[,]” with

regard to Wilby, consisted of only the claims alleging

willful and wanton negligence. Dalloul, 255 Va. at 514,

499 S.E.2d at 281. Those were the only claims asserted

against Wilby “remaining in the case” after the trial court

granted partial summary judgment in his favor. Id.

The majority’s suggestion that the trial court’s

ruling granting partial summary judgment did not dismiss

any “count or claim in the motion for judgment” places form

over substance. It should not matter whether the plaintiff

in this case alleged simple negligence and willful and

wanton negligence in the same or separate counts. The fact

remains that the order awarding partial summary judgment

based on Newton’s contributory negligence eliminated the

simple negligence claims alleged against Wilby. The trial

17
court obviously recognized this fact when stating, in its

letter opinion, that material issues regarding Wilby’s

willful and wanton conduct remained for trial.

This Court has defined the term “claim” as “ ‘an

authoritative or challenging request,’ ” “ ‘a demand of a

right or supposed right,’ ” or “ ‘a calling on another for

something due or supposed to be due.’ ” Stamie E. Lyttle

Co. v. County of Hanover, 231 Va. 21, 26 n.4, 341 S.E.2d

174, 178 n.4 (1986); see also Black’s Law Dictionary 240

(7th ed. 1999) (the term “claim” is defined as “[t]he

aggregate of operative facts giving rise to a right

enforceable by a court”). The right eliminated by the

order granting partial summary judgment was the right to

recover damages caused by Wilby’s alleged simple

negligence. See Woodbury v. Courtney, 239 Va. 651, 654-55,

391 S.E.2d 293, 295-96 (1990) (affirming trial court’s

grant of partial summary judgment dismissing negligence

claim and holding that plaintiff was not entitled to

present evidence of negligence during trial on remaining

battery claim); see also United Masonry Inc. v. Riggs Nat’l

Bank, 233 Va. 476, 484, 357 S.E.2d 509, 514 (1987)

(affirming trial court’s grant of partial summary judgment

to defendant).

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 For these reasons, I respectfully dissent and would

reverse the trial court’s judgment sustaining the

plaintiff’s request to nonsuit all claims alleged in the

motion for judgment. Consequently, unlike the majority, I

must now address the plaintiff’s separate appeal in which

she asserts that the trial court erred in finding that

Newton was guilty of contributory negligence as a matter of

law.

As the trial court noted in its letter opinion and

order granting partial summary judgment, the plaintiff

admitted that Newton “climbed onto the van operated by

Charles David Wilby” and that Newton “had used intoxicants”

before doing so. Based on these undisputed facts, I agree

with the trial court’s determination that Newton was

contributorially negligent as a matter of law.

Thus, I respectfully dissent and would reverse the

judgments of the circuit court in the appeals filed by the

defendants (Record Nos. 021606 and 021646) and affirm the

judgment in the appeal filed by the plaintiff (Record No.

021655).

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