Young v. Lambert

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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