Opinion
CL-2010-298 CL-2010-297
04-05-2011
Olga Shevmov v. Robert Lee Thomasson. Jr. Kimberly Scott v. Margaret Piper
Douglas Wessel, Esquire Counsel for Plaintiffs John McGavin, Esquire Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C. Counsel for Defendant Robert Lee Thomasson, Jr. Nancy Goodiel, Esquire Robey, Teumer, Drash, Kimbrell & Counts Counsel for Defendant Margaret Piper
MARCUS P. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKCRT
RICHARD J. JAMBORSKY
JACK R. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL R. McWEENY
GAYLORD L. FINCH. JR.
STANLEY P. KLEIN
RETIRED JUDGES
April 5, 2011
April 5, 2011
Dear Counsel:
This letter opinion addresses two cases, Olga Sheymov v. Robert Lee Thomasson, Jr. (CL-2010-298) and Kimberly Scott v. Margaret Piper (CL-2010-297), that are both before the Court on demurrer. The Court has consolidated these cases for this letter opinion because they both present the same issues of law on demurrer. For the reasons set forth below, both demurrers are sustained.
Background
The cases addressed in this letter opinion "both stem from garden-variety automobile accidents.
In CL-2010-298, Plaintiff Olga Sheymov alleges that Defendant, Robert Lee Thomasson, Jr., struck the rear of her vehicle with his SUV while she was stopped at a red light. Ms. Sheymov's complaint alleges the following additional facts:
[The Defendant,]In CL-2010-297, Plaintiff Kimberly Scott alleges that Defendant Margaret A. Piper struck the side of her vehicle while she was making a left-hand turn at an
a. did not pay full time and attention to the operation of his vehicle.
b. was exceeding the thirty-five (35) mile per hour speed limit.
c. was exceeding a reasonable speed under the circumstances.
d. was driving recklessly.
e. did not maintain proper control of his vehicle.
f. did not warn Ms. Sheymov of his intended movements.
g. did not apply his brakes in a proper or timely manner.
h. did not use increased care when faced with increased danger.
i. violated one or more laws (of the Commonwealth of Virginia and of the County of Fairfax), including as to maximum speed.
[and]
j. otherwise did not take proper and necessary actions under the circumstances.
intersection. Ms. Piper was allegedly looking up to read a street sign, and when she looked back down, Ms. Scott's vehicle was in the middle of the intersection. The factual allegations in Ms. Scott's complaint are identical to those in CL-2010-298, except for the following:
[The Defendant,]Ms. Scott's complaint further alleges that Ms. Piper was "physically aggressive and verbally abusive" after the accident. A police officer arriving after the accident determined that it was "unknown" as to whether Ms. Piper had been using drugs. Lastly, Ms. Scott's complaint alleges that her vehicle was "totaled" and she was taken to the hospital by ambulance.
a. was exceeding the speed limit of twenty-five (25) miles per hour.
. . .
d. did not maintain proper lookout for other vehicles or conditions on or about the roadway.
e. went through a red light as she entered this [sic] intersection.
. . .
j. did not respond properly to developing circumstances. . . . [and]
1. violated one or more laws {of the Commonwealth of Virginia, the County of Fairfax and/or the Town of Herndon), including as to maximum speed and disregarding a red light.
Both complaints share the same two legal counts. Count I ("Count I") in each complaint is styled "Recklessness," and it alleges that "Defendant. . . acted . . . consciously in disregard of other persons' rights . . . with a reckless disregard for the health, safety and lives of other persons." Count II in each complaint is a standard claim for simple negligence.
Both Defendants demurred to Count I, arguing that Virginia does not recognize a tort styled "Recklessness," and that the facts alleged fail to state a claim for any heightened form of negligence.
Plaintiffs' counsel, Mr. Wessel, failed to submit a brief contesting either demurrer. At oral argument, however, Mr. Wessel asserted, first, that Virginia common law recognizes an action styled "Recklessness," and second, that the factual allegations in each complaint are sufficient to support this claim.
Accordingly, there are two issues before the Court: (1) whether Virginia common law recognizes an action styled "Recklessness;" and (2) whether the factual allegations found in the respective complaints are sufficient to state such a claim.
Analysis
Issue (1) - Whether Virginia Common Law Recognize a Cause of Action Styled "Recklessness"
The Court recognizes that alleging reckless conduct is sufficient to state a tort claim in Virginia. See Infant C. v. Boy Scouts of Am., Inc., 239 Va. 572, 581, 391 S.E.2d 322, 327 (1990). However, in Virginia, this tort has been recognized most commonly as "willful and wanton conduct." See id. See also Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 212-13 (1984). The term "Recklessness" is not often used to describe a claim for willful and wanton conduct.
At oral argument, however, Mr. Wessel cited Infant C. v. Boy Scouts of America, Inc., for the opposite proposition — that Virginia common law recognizes a cause of action specifically styled "Recklessness." 239 Va. 572, 391 S.E.2d 322. This reading of Infant C. is technically incorrect. In Infant C, the Virginia Supreme Court recognized a tort based on reckless conduct, but throughout a lengthy discussion of the labels used to describe such a tort, the Court never referred to it as "Recklessness." See Infant C., 239 Va. at 581, 391 S.E.2d at 327. Instead, the Court referred to this tort numerous times as ''willful and wanton conduct," and a few times as "willful and wanton misconduct" or "willful and wanton negligence." Id. (emphasis added).
With this said, Mr. Wessel's confusion is not unreasonable. The tort of willful and wanton conduct has been "given various labels by the authorities." Id. These labels include,
'such recklessness or negligence as evinces a conscious disregard of the rights of others,'. . . 'a spirit of mischief,
criminal indifference, or conscious disregard of the rights of others,' . . . 'wilful [sic] or wanton conduct,' . . . 'willful or wanton negligence,' . . . negligence which is 'willful, wanton, and reckless,' . . . [and] 'reckless disregard of the safety of another.'Id. (internal citations omitted). "However they may be phrased, the foregoing labels all designate tortious conduct of a single species." Id.
This technical defect, by itself, does not affect the merits of Plaintiffs' allegations. "In Virginia, the distinction between common law forms of action has largely disappeared. . . ." E.I. DuPont DeNemours & Co. v. Universal Moulded Prod, Corp., 191 Va. 525, 534, 62 S.E.2d 233, 236 (1951). And "[n]o action or suit shall abate for want of form where the . . . complaint sets forth sufficient matter of substance for the court to proceed upon the merits of the cause." Va. Code Ann. § 8.01-275 (2011). Both complaints make cognizable allegations for willful and wanton conduct under Count I. Indeed, both complaints allege that Defendants acted "consciously in disregard of other persons' rights , . . with a reckless disregard for the health, safety and lives of other persons." Therefore, in considering the demurrers, this Court will treat the counts of "Recklessness" as if they were claims for willful and wanton conduct.
Issue (2) - Whether the Factual Allegations Found in the Respective. Complaints are Sufficient to State a Claim for Willful and Wanton Conduct
"A demurrer admits the truth of all material facts properly pleaded. Under this rule, the facts admitted are those expressly alleged, those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged." CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993) (quoting Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717, 717 (1988)). And "to survive a demurrer, [a party is] required to plead 'sufficient facts to constitute a foundation in law for the judgment sought, and not merely conclusions of law."' Kitchen v. City of Newport News, 275 Va. 378, 378-388, 657 S.E.2d 132, 137 (2008) (quoting Hubbard v. Dresser, Inc., 271 Va. 117, 122, 624 S.E.2d 1, 4 (2006)).
"Generally, negligence (whether ordinary, gross, or willful and wanton), contributory negligence, and proximate cause are issues for a jury's resolution. They only become questions of law to be determined by a court, when reasonable minds could not differ." Griffin v. Shively, 227 Va. 317, 320, 315 S.E.2d 210, 212 (1984). "|T]f reasonable persons . . . could differ regarding whether [certain] conduct was so willful or wanton as to show a conscious disregard of the rights of others,"
then the case should be resolved by a jury. Huffman v. Love, 245 Va. 311, 314, 427 S.E.2d 357, 360 (1993).
Within this context, the Virginia Supreme Court has stated that willful and wanton conduct does not merely differ "in degree" from simple and gross negligence, but wholly differs "in kind." Infant C., 239 Va. at 582, 391 S.E.2d at 327. "Simple negligence is the failure to use the degree of care an ordinary person would exercise to avoid injury to another," while "[t]he second level of negligence, gross negligence, is action which shows indifference to others, disregarding prudence to the level that safety of others is completely neglected." Harris v. Harmon, 253 Va. 336, 340, 486 S.E.2d 99, 101 (1997). On the other hand, willful and wanton conduct is characterized by an act or omission taken "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." Infant C., 239 Va. at 581, 391 S.E.2d at 327 (internal citations omitted). "The hallmark of this species of tortious conduct is the defendant's consciousness of his act, his awareness of the dangers or probable consequences, and his reckless decision to proceed notwithstanding that awareness." Infant C., 239 Va. at 582, 391 S.E.2d at 327.
The Virginia Supreme Court has recognized a very high factual standard to plead willful and wanton conduct. To find willful and wanton conduct, a person's actions must be "some type of egregious conduct - conduct going beyond that which shocks fair-minded people." Harris v. Harman, 253 Va. 336, 341, 486 S.E.2d 99, 102 (1997). Such conduct has ranged from a driver with a significantly high blood alcohol content being involved in an accident after a prior collision with another car while exceeding the speed limit and driving in the wrong lane, to a driver intentionally chasing and running into a bicyclist in a dispute over money. See Huffman v. Love, 245 Va. 311, 313, 427 S.E.2d 357, 359 (1993); Friedman v. Jordan, 166 Va. 65, 68, 184 S.E. 186, 187 (1936). However, such conduct has not included the actions of a drunk driver who was speeding, took no evasive action to avoid a rear-end collision, and tried to leave the scene of the accident. Puent v. Dickens, 245 Va. 217, 218-19, 427 S.E.2d 340, 341-42 (1993).
Moreover, the Virginia Supreme Court has clearly held that ordinary traffic accidents do not rise to the level of egregious conduct necessary to state a claim for willful and wanton conduct. Harris, 253 Va. at 341, 486 S.E.2d at 101. In Harris v. Harman, the evidence showed that the defendant "tailgated" the plaintiff's vehicle while travelling at a speed between 10 and 30 miles per hour in excess of "the 30 m.p.h. speed which was safe for that stretch of road." 253 Va. at 338, 486 S.E.2d at 100. As the vehicles approached a sharp curve, the plaintiff lost control because he glanced in his rearview mirror to check the defendant's position. Id. The plaintiff
brought suit alleging, among other claims, willful and wanton conduct. Id, at 340, 486 S.E.2d at 101. The circuit court refused a jury instruction on willful and wanton conduct, noting that these facts did not establish this tort as a matter of law. Id. The Virginia Supreme Court upheld the circuit court's decision, holding "every time a driver intentionally violates a traffic law, by definition, the violator is on notice that other users of the road may be injured as a result of his violation. Such conduct alone, however, does not have the characteristics of conduct generally classified as willful and wanton." Id. at 341, 486 S.E.2d at 201.
The conduct complained of in these cases falls far short of the egregious conduct the Virginia Supreme Court has previously found necessary to support a finding of willful and wanton conduct. See, e.g., Huffman, 245 Va. at 313, 427 S.E.2d at 359; Puent, 245 Va. at 218-19, 427 S.E.2d at 341-42; Friedman, 166 Va. at 68, 184 S.E. at 187. Indeed, these cases are more analogous to Harris v. Hartman because the complaints only allege facts concerning ordinary traffic accidents. In CL-2010-297, Plaintiff alleges that Defendant failed to stop at a red traffic light, and struck the side of her vehicle while she was making a left-hand turn at an intersection. And in CL-2010-298, the complaint alleges that Defendant drove his SUV into the rear of Plaintiffs car while stopped at a red light. Both complaints include a laundry-list of additional allegations, none of which, however, remove these cases from the realm of ordinary traffic accidents or allege sufficiently egregious conduct to "shock fair minded people."
Although both complaints make legal conclusions that Defendants acted with conscious disregard to the safety or rights of another, they fail to state sufficient facts in support. As noted above, a plaintiff must plead "sufficient facts to constitute a foundation in law for the judgment sought, and not merely conclusions of law." Kitchen, 275 Va. at 385, 657 S.E.2d at 136 (2008) (internal citations omitted). Moreover, if this Court were to accept Plaintiffs' argument it would turn every intentional moving traffic violation into a case of willful and wanton conduct — a position that is untenable. See Harris, 253 Va. at 341, 486 S.E.2d at 101-02.
At this point in the proceedings, the Court can only conclude that the automobile accidents in these cases involve drivers who were inattentive behind the wheel, nothing more. Accordingly, the Court finds that both Plaintiffs have failed to allege sufficient facts to state a claim for willful and wanton conduct because a reasonable jury could not conclude that the Defendants' conduct was so wanton as to show a conscious disregard for the rights of others.
Conclusion
For the reasons set forth above, both demurrers are sustained and Count I of each complaint is dismissed. A separate order for each case is enclosed.
Sincerely,
Jonathan C. Thacher
Circuit Court Judge, Fairfax County
JCT/djw
ORDER
THIS MATTER came to be heard on Defendant Margaret Piper's Demurrer as to Count I; and
IT APPEARING to the Court for the reasons stated in the Court's Letter Opinion of April 5, 2011, that the Demurrer should be sustained; it is therefore
ORDERED that the Court's Letter Opinion of April 5, 2011, is incorporated into this Order; it is further
ORDERED that Defendant's Demurrer is SUSTAINED; it is further
ORDERED that Plaintiff is given leave to amend Count I of the complaint within twenty-one days of this Order, and if no amendment is made within this time period, Count I is dismissed with prejudice.
ENTERED this 5 day of April, 2011.
_______________________
Judge Jonathan C. Thacher
day of April, 2011.
_______________________
Judge Jonathan C. Thacher
In order to expedite the disposition of this matter, endorsement of this Order by counsel of record for the parties is waived in the discretion of the Court pursuant to Rule 1:13 of the Rules of the Supreme Court of Virgina.
In order to expedite the disposition of this matter, endorsement of this Order by counsel of record for the parties is waived in the discretion of the Court pursuant to Rule 1:13 of the Rules of the Supreme Court of Virgina.
ORDER
THIS MATTER came to be heard on Defendant Margaret Piper's Demurrer as to Count I; and
IT APPEARING to the Court for the reasons stated in the Court's Letter Opinion of April 5, 2011, that the Demurrer should be sustained; it is therefore
ORDERED that the Court's Letter Opinion of April 5, 2011, is incorporated into this Order; it is further
ORDERED that Defendant's Demurrer is SUSTAINED; it is further
ORDERED that Plaintiff is given leave to amend Count I of the complaint within twenty-one days of this Order, and if no amendment is made within this time period, Count I is dismissed with prejudice.
ENTERED this 5