Present: All the Justices
HARVEY R. WILLIAMS, SR.,
ADMINISTRATOR OF THE ESTATE
OF HARVEY R. WILLIAMS, JR.
v. Record No. 970880 OPINION BY JUSTICE ELIZABETH B. LACY
February 27, 1998
JEFFREY L. HARRISON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
In this appeal, we consider issues of contributory
negligence and last clear chance.
On the night of December 14, 1994, Harvey R. Williams,
Jr. (Harvey), Jeffrey L. Harrison, and two of their friends
were driving through a subdivision in Fairfax County in four
separate cars. Harvey's vehicle was second in the line,
followed by Harrison's vehicle. Harvey and Harrison were
driving at speeds of approximately 60-65 miles per hour and 45
miles per hour, respectively. The speed limit was 35 miles
per hour.
Shortly after cresting a hill, Harvey braked suddenly,
skidding in a straight line. When Harrison crested the hill
and saw the brake lights and the smoke emanating from the
tires of Harvey's car, he moved from the right lane into the
center turn lane, hoping to avoid Harvey's car by passing it
on the left side. But Harvey also turned his car to the left,
in front of Harrison's car. Both cars ultimately entered the
far left lane where Harrison's car struck Harvey's car.
Harvey died from injuries sustained in the collision.
Harrison was later convicted of involuntary manslaughter.
Harvey R. Williams, Sr. (Williams), qualified as
administrator of Harvey's estate and filed a wrongful death
action against Harrison. After a two-day trial, the jury
returned a verdict in favor of Harrison. Williams raises
three issues on appeal: (1) whether the trial court erred in
denying his motion in limine and allowing Harrison to assert
the defense of contributory negligence, despite Harrison's
manslaughter conviction; (2) whether the trial court erred in
refusing to instruct the jury on last clear chance; and (3)
whether the trial court improperly limited the scope of
Williams' cross-examination of Harrison. We consider the
issues in order.
I.
Prior to trial, Williams filed a motion in limine,
asserting that the ex turpi causa doctrine should be applied
to prevent Harrison from raising the defense of contributory
negligence. Williams relied on a circuit court case in which
the ex turpi causa doctrine was applied to preclude a
defendant convicted of manslaughter from raising the
contributory negligence defense. The trial court rejected the
application of ex turpi causa concluding that the plea of
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contributory negligence did not involve the wrongdoing of the
defendant but rather the wrongdoing of the plaintiff, and
denied the motion in limine.
On appeal, Williams shifts the focus of his argument. He
no longer relies primarily on the doctrine of ex turpi causa,
but argues instead that this case is directly controlled by
Matthews v. Warner's Administrator, 70 Va. (29 Gratt.) 570
(1877). According to Williams, Matthews held that a defendant
convicted of murder or manslaughter cannot assert the defense
of contributory negligence in a subsequent wrongful death
action. Williams argues that, even if we do not adopt his
interpretation of Matthews, we should not allow Harrison to
assert contributory negligence based on the ex turpi causa
doctrine that no one should profit by his illegal act.
We reject Williams' position. First, Matthews does not
stand for the principle espoused by Williams and is not
applicable to this case. Second, we find that ex turpi causa
should not be extended to preclude the contributory negligence
defense in these circumstances.
In Matthews, Franklin M. Matthews shot and killed
Montesco Warner after Matthews received "abusive language"
from Warner. 70 Va. (29 Gratt.) at 570. In the ensuing
wrongful death action, this Court refused to allow Matthews to
raise the defense of contributory negligence because Warner's
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death "was not caused by negligence; it was caused by violence
-- by a wrongful act . . . . [W]hether it was murder in the
first degree, or murder in the second degree, or manslaughter,
it is still a wrongful act, which is actionable under the
[wrongful death] statute." Id. at 578. Williams erroneously
relies on this language for the principle that a manslaughter
conviction precludes a contributory negligence defense in a
subsequent wrongful death action.
The import of this language must be determined in light
of the entire proceeding. Warner's wrongful death action was
based on an intentional tort, not on negligence. The motion
for judgment alleged that Matthews "feloniously, willfully and
of his malice aforethought did discharge and shoot" Warner.
The language at issue and the holding of Matthews, therefore,
simply reflect the familiar principle that contributory
negligence is not a defense to an intentional tort.
Restatement (Second) of Torts § 481 (1965). As we have
stated, in the absence of primary negligence by the defendant,
contributory negligence cannot exist. Andrews v. Chesapeake &
Ohio Ry. Co., 184 Va. 951, 956, 37 S.E.2d 29, 31 (1946);
Shumaker's Adm'x v. Atlantic Coast Line R.R. Co., 125 Va. 393,
401, 99 S.E. 739, 741 (1919).
The holding in Matthews, that an action for an
intentional tort may not be defended with allegations of
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contributory negligence, is inapplicable to the instant case
because Williams' action here was premised on a negligence
theory. In his motion for judgment, Williams alleged that
Harrison "had a duty to operate his automobile without
negligence," that he breached that duty by operating his
vehicle "carelessly and negligently," and that this breach
resulted in Harvey's death. Because Williams' wrongful death
action is based on negligence, not an intentional tort,
Harrison was entitled to raise the contributory negligence
defense.
Finally, we decline Williams' invitation to preclude
Harrison's use of the contributory negligence defense based on
the policy that no one should profit from his illegal act, the
ex turpi causa doctrine. Williams cites no appellate case
from this Court or elsewhere which has extended this doctrine
as Williams suggests. This lack of precedent is
understandable. The defense of contributory negligence does
not allow a defendant to profit from his misdeeds. We find no
persuasive rationale for applying the doctrine of ex turpi
causa to prohibit the defendant from raising the defense of
contributory negligence in this case.
Accordingly, we find that the trial court did not err in
denying Williams' motion in limine and allowing the defendant
to raise contributory negligence as a defense.
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II.
We next consider Williams' second assignment of error,
that the trial court erred in refusing to instruct the jury on
last clear chance.
Prior to our decision in Greear v. Noland Co., 197 Va.
233, 89 S.E.2d 49 (1955), the law regarding the doctrine of
last clear chance was "in a state of hopeless confusion."
Pack v. Doe, 236 Va. 323, 328, 374 S.E.2d 22, 24-25 (1988).
Greear clarified the doctrine. Id. The last clear chance
doctrine applies in two situations: (1) where the injured
party has negligently placed himself in a position of peril
from which he is physically unable to remove himself (the
helpless plaintiff); and (2) where the injured party has
negligently placed himself in a position of peril from which
he is physically able to remove himself, but he is unconscious
of his peril (the inattentive plaintiff). Id. at 328-29, 374
S.E.2d at 25.
In the first situation, the plaintiff must be "physically
incapacitated" to qualify as a helpless plaintiff,
Vanlandingham v. Vanlandingham, 212 Va. 856, 858, 188 S.E.2d
96, 98 (1972), and the defendant is liable if he saw or should
have seen the helpless plaintiff. In the second situation,
the defendant is liable only if he actually saw the
inattentive plaintiff. In either case, however, liability is
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further predicated upon a showing that the defendant realized
or ought to have realized the peril of the helpless or
inattentive plaintiff in time to avert the accident by use of
reasonable care. Pack, 236 Va. at 329, 374 S.E.2d at 25;
Greear, 197 Va. at 238-39, 89 S.E.2d at 53.
A final principle applicable to the last clear chance
doctrine, is that last clear chance does not supersede
contributory negligence. A negligent plaintiff may recover
only if his negligence was a remote rather than a proximate
cause of the accident. If the opportunity to avoid the
accident is as available to a plaintiff as to a defendant,
then the plaintiff's negligence is a proximate cause rather
than a remote cause, and bars recovery. Cook v. Shoulder, 200
Va. 281, 285-86, 105 S.E.2d 860, 863 (1958). The plaintiff
has the burden of establishing each element of the doctrine by
a preponderance of the evidence. Pack, 236 Va. at 329, 374
S.E.2d at 25.
In all but one case in which we have considered this
issue since 1955, Turner v. Railway Company, 205 Va. 691, 139
S.E.2d 68 (1964), we have declined to require the application
of the doctrine, and we decline to do so here. Williams, like
the other plaintiffs, has failed to provide evidence of each
element necessary to invoke the last clear chance doctrine.
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Williams argues that he was entitled to the last
clear chance instruction under the second classification,
the inattentive plaintiff, even though the jury
instruction offered by Williams and denied by the trial
court, instruction No. 13, described a helpless, not an
inattentive, plaintiff. Nevertheless, Williams was not
entitled to the instruction on either ground because the
record contains no evidence showing that Harvey was
physically incapacitated or that he was unaware of the
peril in which he had placed himself. Further, the
collision occurred after both Harrison and Harvey moved
from the right lane, across the center turn lane, and
into the left lane for oncoming traffic. Harvey's action
in crossing into the left lane was a proximate cause of
the accident, not a remote cause. Therefore, Williams
was not entitled to the last clear chance instruction.
III.
Finally, Williams asserts that the trial court improperly
limited his cross-examination of Harrison. However, Williams
did not proffer the additional questions he intended to ask or
the additional testimony he expected to elicit from further
cross-examination, nor was he prevented from doing so by the
trial court. See Brown v. Commonwealth, 246 Va. 460, 464-65,
437 S.E.2d 563, 564-65 (1993). In the absence of a proffer,
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we will not consider this issue on appeal. Clagett v.
Commonwealth, 252 Va. 79, 95, 472 S.E.2d 263, 272, cert.
denied, ___ U.S. ___, 117 S.Ct. 972 (1996); Chappell v.
Virginia Electric and Power Co., 250 Va. 169, 173—74, 458
S.E.2d 282, 284-85 (1995).
Accordingly, because the trial court did not err in
allowing Harrison to raise the defense of contributory
negligence or in refusing to instruct the jury on last clear
chance, we will affirm the judgment of the trial court.
Affirmed.
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