Evans v. Evans

PRESENT: All the Justices

HANNAH LEIGH EVANS, AN INFANT, WHO SUES
BY HER MOTHER, NATURAL GUARDIAN AND NEXT
FRIEND, CYNTHIA KAY STEVENS

OPINION BY
v. Record No. 091469 JUSTICE DONALD W. LEMONS
June 10, 2010
BILLY BRADLEY EVANS, II

FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge

In this appeal, we consider whether the trial court erred

when it sustained the demurrer of Billy Bradley Evans, II

(“Evans”) to the amended complaint of Hannah Leigh Evans

(“Hannah”). 1

I. Facts and Proceedings Below

Hannah, an infant suing by her mother, filed an amended

complaint against Evans, her father, which alleged that Evans

placed Hannah, then four years old, “in a [portable] foam seat

in the floorboard of a 1972 [pickup] truck” he was operating.

The truck was involved in a head-on collision with an

automobile operated by Caleb Justin Jarman, which caused the

truck to travel off the roadway and hit a fence.

1
The intra-family immunity rule is subject to exception
when an action is brought by a child against a parent for
injuries sustained in a motor vehicle accident. Pavlick v.
Pavlick, 254 Va. 176, 181, 491 S.E.2d 602, 604 (1997) (citing
Smith v. Kauffman, 212 Va. 181, 186, 183 S.E.2d 190, 194
(1971)). Additionally, this case does not present a claim by a
parent for medical expenses. See Code § 8.01-36.
 Hannah alleged in the amended complaint that due to her

father’s failure to secure Hannah in the vehicle, she was

“violently thrown about in the undercarriage and cab area” of

the truck. As a result, Hannah sustained numerous injuries

including, but not limited to: multiple facial contusions, a

skull fracture, cerebral edema and subarachnoid hemorrhage of

the right frontal lobe, a ruptured bladder, a left acetabular

fracture, and an inferior pubic rami fracture. Because of the

acquired brain injury and the seriousness of her other

injuries, Hannah was subjected to several months of

hospitalization and rehabilitation.

Hannah alleged that Evans owed her a duty of care both as

the operator of the vehicle and as her father. Notwithstanding

this duty, Hannah alleged that Evans “carelessly, recklessly,

willfully, wantonly, grossly, negligently and grossly

negligently, permitted” her to be left in such an unsafe and

unreasonably dangerous seating arrangement. Hannah asserted

that Evans’ alleged negligence was the direct and proximate

cause of her serious and permanent physical and psychological

injuries, and she sought $100,000 in “compensatory and/or

punitive damages.”

Hannah’s amended complaint contained no reference to Code

§ 46.2-1095(A), which requires that children “up to age eight”

be placed in a child restraint device when traveling in a motor

2
vehicle on the highways of Virginia. Rather, the amended

complaint focused on other aspects of Evans’ conduct. Hannah

alleged that Evans was “negligent and grossly negligent” when

he:

A. Placed [Hannah] in a foam seat in an
area of a 33-year-old truck which was
as inherently dangerous as having
placed her in the cargo bed of the
truck.

B. Placed [Hannah] in a loose seat on the
floorboard where said infant was
surrounded by sharp objects and hard
objects in the form of undercarriage
structure, wires and front seat support
metal rods and metal bars[.]

C. Placed [Hannah] on the floorboard of
the truck.

D. Placed [Hannah] in an extreme injury-
risk location as described above while
knowing that such placement would be
catastrophic to the infant should any
foreseeable motor vehicle accident
occur.

E. Ignored his duty of care to assure that
his infant passenger was . . . safe and
free from being tossed about in the
confined area between the truck
floorboard and the underside of the
dashboard.

In his responsive pleadings, Evans demurred to Hannah’s

amended complaint, arguing that Code § 46.2-1095(C) barred

Hannah’s claims, and that she failed to state a claim upon

which relief could be granted. Code § 46.2-1095 (C) states in

pertinent part: “A violation of this section shall not

3
constitute negligence.” Evans also denied that he was liable

to Hannah or that he breached any legal duty owing to her.

Following briefing by the parties, the trial court held a

hearing at which it acknowledged that Hannah was asserting a

common law negligence claim and not a claim of negligence for

Evans’ alleged violation of Code § 46.2-1095. However, the

trial court stated,

[the] statutory duty [to secure a child in
a vehicle] is so inextricably intertwined
with any common law duty of care, that in
my view it would be impossible to try this
case without [the statute] somehow coming
up either explicitly, or even the jury is
thinking about it, that reference would be
made to this statute.

The trial court reasoned that if counsel for Hannah argued that

Evans failed to exercise reasonable care by placing Hannah on

the floor of the truck, the jury would accept that argument

because it would know that Evans “is required by statute to put

that child in a child restraint seat and he didn’t do it.”

The trial court concluded that “the General Assembly

exerted a whole lot of effort here to say this kind of

conduct . . . is not going to be the basis for a civil action

in this Commonwealth.” Accordingly, the trial court sustained

Evans’ demurrer to Hannah’s amended complaint and dismissed the

complaint with prejudice.

4
 Hannah timely filed her notice of appeal, and we granted

an appeal on the following assignments of error:

1. The Circuit Court erred because it failed to view the
Amended Complaint in the light most favorable to the
Plaintiff and, in doing so, failed to recognize that
a jury could reasonably find that the placement of a
four-year old child on the floorboard of a 1972 truck
was in and of itself a separate and identifiable act
of negligence, without reference to the statute.

2. The Circuit Court erred in failing to recognize that
Va. Code § 46.2-1095(C) refers only to “negligence”
and does [sic] regulate claims for “gross negligence”
which[] are distinct and separate causes of action,
commonly referred to as claims for punitive damages.

3. The Circuit Court erred when it construed Va. Code
§ 46.2-1095(C) other than according to its plain
meaning and in such a way as to create the absurd
result of immunizing a wrongdoer for any degree of
negligence in transporting a child in a motor
vehicle.

4. The Circuit Court erred in failing to construe Va.
Code §§ 46.2-1095 and 46.2-1098 conjunctively, given
the language of Va. Code § 46.2-109[8] which
specifically states in part that “nor shall violation
of this article constitute a defense to any claim for
personal injuries to a child or the recovery of
medical expenses for injuries sustained in any motor
vehicle accident.”

II. Analysis

A. Standard of Review

As we previously have stated,

“[a] demurrer admits the truth of the facts
contained in the pleading to which it is
addressed, as well as any facts that may be
reasonably and fairly implied and inferred
from those allegations. A demurrer does
not, however, admit the correctness of the
pleader’s conclusions of law.” Yuzefovsky

5
 v. St. John’s Wood Apts., 261 Va. 97, 102,
540 S.E.2d 134, 136-37 (2001) (internal
citation omitted). Accordingly, we will
consider the facts stated, and those
reasonably and fairly implied and inferred,
in the [complaint] in a light most
favorable to the plaintiff, but we will
review the sufficiency of the legal
conclusions ascribed to those facts de
novo.

Taboada v. Daly Seven, Inc., 271 Va. 313, 317-18, 626 S.E.2d

428, 429 (2006), aff’d on reh’g, 273 Va. 269, 270, 641 S.E.2d

68, 68 (2007). In this appeal, we interpret Code §§ 46.2-1095

and 46.2-1098.

[A]n issue of statutory interpretation is a
pure question of law which we review de
novo. When the language of a statute is
unambiguous, we are bound by the plain
meaning of that language. Furthermore, we
must give effect to the legislature’s
intention as expressed by the language used
unless a literal interpretation of the
language would result in a manifest
absurdity. If a statute is subject to more
than one interpretation, we must apply the
interpretation that will carry out the
legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

104, 639 S.E.2d 174, 178 (2007) (citations omitted).

Furthermore, “[t]he plain, obvious, and rational meaning of a

statute is to be preferred over any curious, narrow, or

strained construction.” Commonwealth v. Zamani, 256 Va. 391,

395, 507 S.E.2d 608, 609 (1998).

6
 B. Code §§ 46.2-1095 and 46.2-1098

The dispositive issue in this case is whether Code

§§ 46.2-1095 and 46.2-1098 preclude any cause of action for

negligence when an injured child alleges that the adult

responsible for her safety breached the common law duty of care

by failing to secure the child in a safety seat.

Code § 46.2-1095(A) provides in pertinent part that any

person who drives on the highways of Virginia “shall ensure

that any child, up to age eight, whom he transports therein is

provided with and properly secured in a child restraint device

of a type which meets the standards adopted by the United

States Department of Transportation.” Code § 46.2-1095(C)

provides in pertinent part, “[a] violation of this section

shall not constitute negligence, be considered in mitigation of

damages of whatever nature, be admissible in evidence or be the

subject of comment by counsel in any action for the recovery of

damages in a civil action.” Code § 46.2-1098 provides in

pertinent part, “[v]iolations of this article shall not

constitute negligence per se; nor shall violation of this

article constitute a defense to any claim for personal injuries

to a child or recovery of medical expenses for injuries

7
sustained in any motor vehicle accident.” 2

Our review of these statutes is guided by well-established

canons of construction.

The General Assembly has proclaimed, “The common
law of England, insofar as it is not repugnant
to the principles of the Bill of Rights and
Constitution of this Commonwealth, shall
continue in full force . . . and be the rule of
decision, except as altered by the General
Assembly.” Code § 1-200. When construing a
statute in derogation of the common law, we
apply several established principles. “[A]
statutory provision will not be held to change
the common law unless the legislative intent to
do so is plainly manifested.” Herndon v. St.
Mary’s Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d
567, 569 (2003). “Statutes in derogation of the
common law are to be strictly construed and not
to be enlarged in their operation by
construction beyond their express terms.”
Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va.
175, 181, 142 S.E.2d 514, 518 (1965).
Accordingly, “[a] statutory change in the common
law is limited to that which is expressly stated
in the statute or necessarily implied by its
language because there is a presumption that no
change was intended.” Mitchem v. Counts, 259
Va. 179, 186, 523 S.E.2d 246, 250 (2000). “When
an enactment does not encompass the entire
subject covered by the common law, it abrogates
the common-law rule only to the extent that its
terms are directly and irreconcilably opposed to

2
Both Code §§ 46.2-1095 and 46.2-1098 are codified in
Article 13, which is entitled “Child Restraints.” Because they
clearly address the same subject matter, we construe them
together under the “in pari materia” canon of construction.
See e.g. USAA Cas. Ins. Co. v. Hertz Corp., 265 Va. 450, 457,
578 S.E.2d 775, 778 (2003) (construing statutes appearing in
Title 46.2 and dealing with insurance requirements for motor
vehicles); Taylor v. Shaw & Cannon Co., 236 Va. 15, 19, 372
S.E.2d 128, 131 (1988) (statutes are “read . . . in pari
materia since they relate to the same subject”).

8
 the rule.” Boyd [v. Commonwealth, 236 Va. 346,
349, 374 S.E.2d 301, 302 (1988)].

Isbell v. Commercial Investment Assocs., Inc., 273 Va. 605,

613-14, 644 S.E.2d 72, 75 (2007) (some internal citations

omitted).

“The doctrine of negligence per se represents the adoption

of ‘the requirements of a legislative enactment as the standard

of conduct of a reasonable [person].’ ” McGuire v. Hodges, 273

Va. 199, 206, 639 S.E.2d 284, 288 (2007) (quoting Butler v.

Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122 (1967)). “A

party relying on negligence per se does not need to establish

common law negligence.” Id. These principles provide a clear

distinction between statutory and common law negligence. In

Code § 46.2-1098, the General Assembly plainly indicated that

it was not creating a statutory standard of care through its

enactment of Code § 46.2-1095. Accordingly, a plaintiff may

not rely on an alleged or admitted violation of Code § 46.2-

1095 to prove her claim of negligence per se.

However, the question remains whether the General Assembly

intended for Code §§ 46.2-1095 and 46.2-1098 to abrogate a

cause of action based upon common law negligence when the facts

involve the failure to secure a child in a child restraint

device. Because “[a] statutory change in the common law is

limited to that which is expressly stated in the statute or

9
necessarily implied by its language,” Isbell, 273 Va. at 613-

14, 644 S.E.2d at 75, we hold that the legislature did not

intend to eliminate common law causes of action arising from

injuries sustained by a child in a motor vehicle accident.

The language of Code § 46.2-1095(C) states in part, “[a]

violation of this section shall not constitute negligence.”

The language of Code § 46.2-1098 states in part, “[v]iolations

of this article shall not constitute negligence per se.”

Construing the statutory scheme as a whole, we hold that the

“negligence” referred to in Code § 46.2-1095(C) is the same per

se negligence referenced in Code § 46.2-1098. See e.g., City

of Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675

S.E.2d 197, 202 (2009) (construing statutes in Title 58.1 and

explaining that “[i]t is the duty of the courts to construe

statutory enactments so as to avoid repugnance and conflict

between them and, if possible, to give force and effect to each

of them”) (citing Sexton v. Cornett, 271 Va. 251, 257, 623

S.E.2d 898, 901 (2006)); Alston v. Commonwealth, 274 Va. 759,

769, 652 S.E.2d 456, 462 (2007) (construing statutes in Title

19.2 and explaining that “[i]t is a cardinal rule of

construction that statutes dealing with a specific subject must

be construed together in order to arrive at the object sought

to be accomplished”) (quoting Prillaman v. Commonwealth, 199

Va. 401, 406, 100 S.E.2d 4, 7 (1957) (internal quotation marks

10
omitted)). Consistent with Code § 1-200 and our case law, we

conclude that the General Assembly intended preclusion of a per

se negligence action based upon Code §§ 46.2-1095 and 46.2-

1098, but did not abrogate a common law action for negligence.

The parties engage in much discussion regarding the

meaning of the word “violation” in the statutes. Hannah

maintains that the term refers to a formal adjudication under

the statute. Evans maintains that it refers to a factual basis

that could result in a formal adjudication. The resolution of

that question is not the dispositive issue in this case. We

hold that, read together, Code §§ 46.2-1095 and 46.2-1098: (i)

preclude a cause of action based upon negligence per se; and

(ii) preclude any mention of the statutory provisions by the

parties at trial for any reason. 3

Upon remand, the trial court should be mindful that in a

common law cause of action for negligence, a child of four is

not legally capable of contributory negligence. See Grant v.

Mays, 204 Va. 41, 44, 129 S.E.2d 10, 12 (1963); Morris v.

Peyton, 148 Va. 812, 821, 139 S.E. 500, 502-03 (1927). Also,

in a suit by an infant to recover damages for personal injury,

the negligence of a parent will not be imputed to his infant

3
Because we hold today that Hannah’s common law cause of
action survives, it is not necessary for us to reach the
remaining assignments of error.

11
child. Tugman v. Riverside & Dan River Cotton Mills, Inc., 144

Va. 473, 481, 132 S.E.2d 179, 181 (1926). Finally, “[w]e have

held that a plaintiff has a duty to mitigate [her] damages.”

Sawyer v. Comerci, 264 Va. 68, 77, 563 S.E.2d 748, 754 (2002).

“Generally, whether a plaintiff acted reasonably to minimize

his damage is a question for the jury.” Id. However, in

accordance with other jurisdictions, we hold that a four-year

old child is unable, as a matter of law, to mitigate her

damages. See Francis v. Dahl, 107 P.3d 1171, 1174 (Colo. Ct.

App. 2005); accord Cardona v. County of Albany, 728 N.Y.S.2d

355, 362 (N.Y. Sup. Ct. 2001) (“the infant plaintiffs, being

non sui juris, were, as a matter of law, unable to mitigate

their damages”).

III. Conclusion

For the reasons stated herein, we will reverse the

judgment of the Circuit Court of Bedford County and remand the

case to the trial court for further proceedings consistent with

this opinion.

Reversed and remanded.

JUSTICE KINSER, dissenting.

Today, the majority holds that the term "negligence" used

by the General Assembly in Code § 46.2-1095(C) "is the same per

se negligence" as the General Assembly utilized in Code § 46.2-

1098. Because those two terms have distinct legal meanings and

12
because the majority ignores important principles of statutory

construction, I respectfully dissent.

The majority does not find that either of these statutes

is ambiguous, nor do I. In construing a clear and unambiguous

statute, "this Court looks no further than the plain meaning of

the statute's words." Gray v. Rhoads, 268 Va. 81, 86, 597

S.E.2d 93, 96 (2004). Furthermore, "[c]ourts cannot 'add

language to the statute the General Assembly has not seen fit

to include.' " Jackson v. Fidelity & Deposit Co. of Maryland,

269 Va. 303, 313, 608 S.E.2d 901, 906 (2005) (quoting Holsapple

v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65

(2003)). "[N]or are they permitted to accomplish the same

result by judicial interpretation." Burlile v. Commonwealth,

261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (citation and

internal quotation marks omitted).

Moreover, "[w]hen the General Assembly uses two different

terms in the same act, those terms are presumed to have

distinct and different meanings." Industrial Dev. Auth. v.

Board of Supervisors, 263 Va. 349, 353, 559 S.E.2d 621, 623

(2002) (emphasis added); accord Shelor Motor Co. v. Miller, 261

Va. 473, 480, 544 S.E.2d 345, 349 (2001). We must "presume

that the 'legislature chose, with care, the words it used when

it enacted the . . . statute.' " Jackson, 269 Va. at 313, 608

13
S.E.2d at 906 (quoting Simon v. Forer, 265 Va. 483, 490, 578

S.E.2d 792, 796 (2003)).

There can be no doubt that the words "negligence" and

"negligence per se" are terms of art and have distinct legal

meanings. This Court has defined "ordinary or simple

negligence as the failure to use 'that degree of care which an

ordinarily prudent person would exercise under the same or

similar circumstances to avoid injury to another.' " 1 Griffin

v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 212-13 (1984)

(quoting Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805,

808 (1957)). To establish negligence, a plaintiff must "show

the existence of a legal duty, a breach of the duty, and

proximate causation resulting in damage." Atrium Unit Owners

Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548 (2003).

1
We have defined the term "gross negligence" as "that
degree of negligence which shows indifference to others as
constitutes an utter disregard of prudence amounting to a
complete neglect of the safety of [another]. It must be such a
degree of negligence as would shock fair minded men although
something less than willful recklessness." Ferguson v.
Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis
omitted). "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) (citing Friedman v. Jordan, 166 Va. 65, 68, 184 S.E.
186, 187 (1936)).

14
 In contrast, "[t]he doctrine of negligence per se

represents the adoption of 'the requirements of a legislative

enactment as the standard of conduct of a reasonable

[person].' " McGuire v. Hodges, 273 Va. 199, 206, 639 S.E.2d

284, 288 (2007) (quoting Butler v. Frieden, 208 Va. 352, 353,

158 S.E.2d 121, 122 (1967)).

A party relying on negligence per se does not need to
establish common law negligence provided the
proponent produces evidence supporting a
determination that the opposing party violated a
statute enacted for public safety, that the proponent
belongs to the class of persons for whose benefit the
statute was enacted and the harm suffered was of the
type against which the statute was designed to
protect, and that the statutory violation was a
proximate cause of the injury.

Id. (citing Halterman v. Radisson Hotel Corp., 259 Va. 171,

176-77, 523 S.E.2d 823, 825 (2000)).

Despite this obvious distinction between the terms

"negligence" and "negligence per se" and the statutory

construction principle that when the General Assembly uses two

different terms in the same act, the terms are presumed to have

distinct and different meanings, the majority concludes that

the General Assembly did not mean what it said by using the

term "negligence" in Code § 46.2-1095(C). When the General

Assembly first enacted legislation requiring the use of child

restraint devices while transporting children in motor

vehicles, see former Code § 46.1-314.2, it did not include the

15
term "negligence" in the statute. 1982 Acts ch. 634. However,

in the same Act, the General Assembly enacted former Code

§ 46.1-314.5(B), which did contain a reference to negligence

per se: "Violations of the provisions of this article shall not

constitute negligence per se; nor shall violation of this

article constitute a defense to any claim for personal injuries

to a child or recovery of medical expenses for injuries

sustained in any motor vehicle accident." 1982 Acts ch. 634.

Virtually the same language is now set forth in Code § 46.2-

1098.

When enacted in 1982, former Code §§ 46.1-314.2 and –314.5

were part of Article 9.1 in Chapter 4 of Title 46.1 of the

Code. 1982 Acts ch. 634. Current Code §§ 46.2-1095 and –1098

are included in Article 13 of Chapter 10 in Title 46.2. Thus,

since its creation, a violation of the statute requiring the

use of child restraint devices could not constitute negligence

per se.

In 1997, the General Assembly amended Code § 46.2-1095 and

added the language now found in subsection C: "A violation of

this section shall not constitute negligence, be considered in

mitigation of damages of whatever nature, be admissible in

evidence or be the subject of comment by counsel in any action

for the recovery of damages in a civil action." 1997 Acts ch.

793. Since it was already the case, pursuant to Code § 46.2-

16
1098, that a violation of Code § 46.2-1095 could not constitute

negligence per se, it is apparent that the General Assembly

intended what it enacted and did not use the term "negligence"

to mean "negligence per se."

Thus, I cannot adopt the view of the majority. To do so

renders the 1997 amendment to Code § 46.2-1095 entirely

superfluous and repetitious of what Code § 46.2-1098 already

stated: a violation of Code § 46.2-1095 could not constitute

negligence per se. See Sansom v. Board of Supervisors, 257 Va.

589, 595, 514 S.E.2d 345, 349 (1999) (To interpret the phrase

"substantial surface drainage course" and "stream" to denote

the same type of topographical feature would "violate the

settled principle of statutory construction that every part of

a statute is presumed to have some effect and no part will be

considered meaningless unless absolutely necessary.") (internal

quotation marks and citation omitted). By its holding today,

the majority presumes the General Assembly did not "[choose],

with care, the words it used when it enacted [Code § 46.2-

1095(C)]." Simon, 265 Va. at 490, 578 S.E.2d at 796. I

believe, however, that the General Assembly fully understands

the significant legal difference between the terms "negligence"

and "negligence per se." See Philip Morris USA Inc. v.

Chesapeake Bay Found., Inc., 273 Va. 564, 576, 643 S.E.2d 219,

225 (2007) ("In interpreting a statute, we presume that the

17
General Assembly acted with full knowledge of the law in the

area in which it dealt."). The numerous statutes in which

these terms appear show that the General Assembly does not use

them interchangeably. Compare Code §§ 29.1-748(C) (violation

of section shall not constitute negligence), 46.2-334.01(E)

(same), 46.2-335(E) (same), 46.2-906.1 (same), 46.2-915.1(D)

(same), 46.2-915.2 (same), and 46.2-1094(D) (same), with Code

§§ 19.2-392.02(G) (violation of section shall not constitute

negligence per se), 29.1-749.3 (same), 32.1-111.3(B)(2), -

111.3(C)(2) (same), 46.2-800.1(C) (same), 46.2-813 (same),

46.2-842.1 (same), 46.2-910(A) (same), 46.2-1030(D) (same), and

59.1-524 (same).

Despite the narrow issue before us, the majority concludes

that the General Assembly "did not intend to eliminate common

law causes of action arising from injuries sustained by a child

in a motor vehicle accident." I agree. "[A] statutory

provision will not be held to change the common law unless the

legislative intent to do so is plainly manifested." Herndon v.

St. Mary's Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 567, 569

(2003). But, the question is not whether the General Assembly

intended to eliminate all causes of action for injuries

sustained by children in motor vehicle accidents. Instead, the

proper inquiry is whether the General Assembly intended to

abrogate common law negligence causes of action premised on the

18
failure to secure a child in a child restraint system. I

conclude that it did. What could be more plain, clear, and

expressly stated than the language in Code § 46.2-1095(C): "[A]

violation of this section [mandating use of child restraint

devices] shall not constitute negligence"? 2 (Emphasis added.)

Under the majority's holding today, this infant, suing by

her mother and next friend, can proceed with this common law

negligence action against her father for injuries she allegedly

sustained as a result of his failure to secure her in a child

restraint device. She apparently can do so even though the

father's failure to properly restrain his daughter, which

violated Code § 46.2-1095(A), is not admissible in evidence

under Code § 46.2-1095(C). Furthermore, under the terms of

Code § 46.2-1098, a defendant sued by an infant's parent to

recover medical expenses sustained as a result of a motor

vehicle accident could not present a defense based on the

conduct at issue. Thus, in my view, the majority disrupts a

2
Reading Code §§ 46.2-1095 and –1098 "in pari materia"
does not lead to a different result. Related statutes are read
"in pari materia in order to give, when possible, consistent
meaning to the language used by the General Assembly."
Virginia Polytechnic Inst. & State Univ. v. Interactive Return
Serv., Inc., 271 Va. 304, 310-11, 626 S.E.2d 436, 439 (2006).
I find nothing inconsistent about the General Assembly's use of
the terms "negligence" and "negligence per se" in Code §§ 46.2-
1095(C) and –1098, respectively.

19
previously consistent statutory scheme and reverses a policy

decision made by the General Assembly.

Having concluded that the General Assembly meant what it

stated in Code § 46.2-1095(C), I turn now to the question

whether the circuit court erred in sustaining a demurrer to the

amended complaint. As the majority notes, the infant, suing by

her mother and next friend, alleged that her father placed her

in a loose seat on the floorboard of a truck and by doing so,

breached his duty of care to insure that his infant passenger

was "safe and free from being tossed about in the confined area

between the truck floorboard and the underside of the

dashboard." There is no question that the alleged conduct

violates Code § 46.2-1095(A), but the provisions of Code

§ 46.2-1095(C) clearly state that "[a] violation of this

section shall not constitute negligence." Establishing the

alleged facts at trial will necessarily implicate the father's

failure to secure his daughter in a child restraint device.

And, establishing that the father's alleged negligence was the

proximate cause of his daughter's injuries will necessarily

entail consideration as to whether the infant would have been

injured less seriously, or not at all, if she had been properly

restrained. Thus, I conclude that the circuit court did not

err in sustaining the demurrer.

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 For these reasons, I would affirm the judgment of the

circuit court and therefore respectfully dissent.

JUSTICE MIMS, concurring.

I concur with the majority opinion, which I join. The

majority and dissenting opinions thoroughly parse the language

of Code §§ 46.2-1095 and 46.2-1098 in search of the elusive

grail of legislative intent. Yet the two opinions reach

diametrically opposed conclusions. The statutory language,

together with the rather complex statutory history, has caused

reasonable minds to differ.

I write to suggest that in choosing between these opposite

reasonable conclusions, one should not miss the forest for the

trees. * Code § 46.2-1095 is both admirable and minimal. Its

purpose is admirable: to protect children on the highways of

the Commonwealth by requiring that they be secured by age-

appropriate safety restraints. Yet its salutary effect is

*
It is well-established that “we determine the legislative
intent from the words used in the statute, applying the plain
meaning of the words unless they are ambiguous or would lead to
an absurd result.” Wright v. Commonwealth, 278 Va. 754, 759,
685 S.E.2d 655, 657 (2009). However, “[t]he ultimate purpose
of these rules is to ascertain the intention of the
legislature, and every statute is to be read so as to promote
the ability of the enactment to remedy the mischief at which it
is directed.” USAA Casualty Ins. Co. v. Alexander, 248 Va.
185, 194, 445 S.E.2d 145, 150 (1994) (internal alterations and
quotation marks omitted).

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minimal due to its negligible sanction: a $50 civil penalty

with no demerit points and no imposition of court costs.

The General Assembly enacted a remedial statute whose sole

purpose is to protect defenseless children who cannot protect

themselves. The majority opinion concludes that the General

Assembly intended to add this minimal statutory protection to

the existing common law tort remedy available to grievously

injured children such as Hannah. Therefore it holds that a

violation of the statute does not bar a tort action; rather it

merely may not be introduced as evidence in such action.

The dissenting opinion concludes that the General Assembly

intended to replace entirely the tort remedy for those injured

children. Therefore, a guilty wrongdoer who pays his $50 fine

is immune from any further consequence, while his injured child

victim is left without the previously available redress for her

grievous injuries. I do not believe the General Assembly

intended such an inequitable result when it enacted this

remedial statute to protect the safety of children.

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