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236 Va. 269

374 S.E.2d 1

5 Va.LawRep. 867

Booth v. Robertson

Supreme Court of Virginia

Decided November 18, 1988

Supreme Court of Virginia · decided 1988-11-18

Key passage — most relied on by later courts

“so willful or wanton as to evince a conscious disregard of the rights of others.”

quoted by 8 later decisions, including Mildred Chretien v. General Motors Corporation, a, Larry S. Dudley v. Bungee International Manufacturing Corporation, and the Price Company, D/B/A Price Club

“The objective fact that the defendant in the case voluntarily consumed enough intoxicants to produce a reading of 0.22% blood alcohol content, causing him to drive as he did on the night in question, provides sufficient proof of his conscious disregard of the rights of others.”

quoted by 2 later decisions, including Winesett v. Crowe, Valenzuela v. Caceres

Relies on Baker v. Marcus · Essex v. Commonwealth · King v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1988-11-18

How this case has been cited

Cited by 139 later decisions — most recently June 2016 · most notably Bulala v. Boyd (1990), Owens-Corning Fiberglas Corp. v. Watson (1992)

10 federal appellate · 2 district · 99 state decisions

5701988199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CARRICO, C.J.,

¶1delivered the opinion of the Court.

¶2In this personal injury case arising out of an automobile accident, the plaintiff, Doris Martin Booth, sought both compensatory and punitive damages from the defendant, George Barnitz Robertson. The trial court permitted the jury to consider compensatory damages but struck the plaintiffs evidence relating to punitive damages. The jury returned a verdict in favor of the plaintiff for $75,000 in compensatory damages, and the judgment entered on that verdict has become final. The plaintiff has appealed from the adverse action on her claim for punitive damages.

¶3The accident in which the plaintiff sustained her injuries occurred after dark on a rainy evening in late October 1984. Leaving her workplace in Radford around 7:10 p.m., the plaintiff proceeded in a northerly direction on Interstate Highway 81, en route to her home in Vinton.

¶4About 7:50 p.m., the defendant, operating a jeep, drove the wrong way down the exit ramp for northbound traffic at Exit 39 and entered the northbound lanes of Interstate 81 into the path of an approaching tractor-trailer truck. Seeing the defendant’s jeep coming toward him, James Hogan, the driver of the truck, blinked his lights and blew “a constant blast” on his air horns. Hogan also turned his vehicle to the right and then to the left in an effort to avoid a collision with the jeep. The defendant finally passed Hogan on the latter’s left side and “just kept going ... at a pretty high rate of speed.” At a point approximately four-tenths of a mile south of Exit 39, the defendant collided head-on with the plaintiff.

¶5*271The defendant was charged with driving under the influence and reckless driving. A certificate of blood analysis showed that after the accident, he had a blood alcohol content of 0.22% by weight by volume.1 The defendant later pleaded guilty to the charge of driving under the influence.

¶6On appeal, the defendant contends that, in Virginia, punitive damages may be awarded in vehicular accident cases only for malicious conduct and that there has been no showing of malice in this case. The defendant bases this contention on his reading of two of our decisions, Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960), and Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984).

¶7The defendant points out that, in Baker, we said: “One who knowingly drives his automobile on the highway under the influence of intoxicants, in violation of statute, is, of course, negligent. It is a wrong, reckless and unlawful thing to do; but it is not necessarily a malicious act.” 201 Va. at 910, 114 S.E.2d at 621.

¶8We think the defendant reads this quotation out of context. The statement was made as part of a general discussion on the subject of punitive damages and cannot be read as a holding that punitive damages may be awarded only for malicious conduct. Indeed, earlier in the Bakeropinion, we noted that “‘[punitive] damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evinces a conscious disregard of the rights of others' " 201 Va. at 909, 114 S.E.2d at 621 (quoting Wood v. Amer. Nat. Bank, 100 Va. 306, 316, 40 S.E. 931, 934 (1902)) (emphasis added).2

¶9The defendant next points out that we repeated the Bakerquotation in Essexand then said in a footnote:

Some courts reason that one who deliberately drives a car to a place remote from home for the purpose of drinking, knowing that he will have to drive home under the influence of alcohol, then, after becoming intoxicated, drives recklessly, *272thereby acts so wantonly, and with such a disregard of human life as to supply an inference of malice .... We do not think the premises support the conclusion reached.

¶10228 Va. at 283 n.3, 322 S.E.2d at 221 n.3 (citation omitted).

¶11But this footnote cannot be considered as a holding that only malicious conduct warrants an award of punitive damages. Essexinvolved a conviction of second degree murder for death occurring in an automobile accident caused by an intoxicated driver. A showing of malice was essential to the conviction. We merely held that the defendant’s intoxication was “irrelevant to the determination of malice.” 228 Va. at 283, 322 S.E.2d at 221. Nothing in the opinion suggests there are no grounds other than malice for an award of punitive damages.

¶12The defendant also cites our decision in Friedman v. Jordan, 166 Va. 65, 184 S.E. 186 (1936). The defendant says Friedmanis “the paradigm case,” representing the only vehicular accident scenario in which an award of punitive damages is justified. The defendant characterizes the evidence in Friedmanas showing that “a creditor deliberately ran down his debtor, who was on a bicycle, pinned him under the automobile, and then demanded payment of the debt.”

¶13Friedman, however, is not authority for the proposition that only malicious conduct will support an award of punitive damages. Like Baker, Friedman recognizes that an award of punitive damages may also be based on a showing of willful or wanton conduct which evinces a conscious disregard of the rights of others. 166 Va. at 68, 184 S.E. at 187.3

¶14But, the defendant argues, even if willful or wanton conduct will support an award of punitive damages, Friedmanteaches that such conduct imports “knowledge and consciousness that injury will result from the act done.” Id.The defendant then asserts there was no proof in this case he “knew that he was traveling in the wrong direction on the interstate, that he was deliberately bent on destruction and that he did not care” (emphasis in original). In the absence of ill will or some other motivation to cause *273harm, the defendant says, proof of conscious disregard could have been supplied only if he had stated beforehand that he was going to drive “down the interstate the wrong way [and have] some adventure and excitement tonight.”

¶15We disagree with the defendant. We think that a conscious disregard of the rights of others may be proved by means other than a defendant’s subjective statements. The objective fact that the defendant in this case voluntarily consumed enough intoxicants to produce a reading of 0.22% blood alcohol content, causing him to drive as he did on the night in question, provides sufficient proof of his conscious disregard of the rights of others.

¶16The defendant argues, however, that because of his high state of intoxication, he was “less [able] to be aware of the consequences of what [he was] doing.” Indeed, the defendant takes the extreme position that “the drunker [one gets] and then [drives], the less likely [he is] to be liable for punitive damages.”

¶17We reject this notion. In Essex, we said that while intoxication is “irrelevant to the determination of malice,” 228 Va. at 283, 322 S.E.2d at 221, it is “relevant to a determination of the degree of the defendant’s negligence: whether ordinary, gross, or wanton.” Id.,322 S.E.2d at 221-22. We also said that intoxication may “serve to elevate the defendant’s conduct to the level of ‘negligence so gross, wanton, and culpable as to show a reckless disregard of human life.’ ” Id.,322 S.E.2d at 222 (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)). While Essexand Kingare criminal cases, the quoted observations are no less pertinent in this civil matter.

¶18We think it is clear that negligence which is so willful or wanton as to evince a conscious disregard of the rights of others, as well as malicious conduct, will support an award of punitive damages in a personal injury case. We hold that the negligence in the present case rises to the necessary level of wantonness.

¶19We do not intend by this decision to indicate a lessening of this Court’s general reluctance to allow punitive damages in run-of-the-mill personal injury cases. We merely hold that, upon the egregious set of facts presented in this case, the plaintiff is entitled to have a jury consider her claim for punitive damages.

¶20Accordingly, we will reverse the judgment of the trial court insofar as it disallowed the recovery of punitive damages and remand the case for a new trial limited to consideration of such damages.

¶21*274Reversed and remanded.

¶22 Code § 18.2-269 establishes a presumption of intoxication from a blood alcohol content of .10% or more by weight by volume.

¶23Bakerinvolved a rear-end collision caused by the negligence of a defendant who had been drinking but whose intoxication was considered borderline by the police. We reversed an award of punitive damages, saying there was “nothing to show [the defendant] acted in a spirit of mischief, criminal indifference, or conscious disregard of the rights of others.” 201 Va. at 910, 114 S.E.2d at 621.

¶24 The defendant also cites Eubank v. Spencer, 203 Va. 923, 128 S.E.2d 299 (1962), but there the plaintiff had abandoned a claim for punitive damages in the trial court and the defense had admitted liability for ordinary negligence, leaving the amount of compensatory damages as the only issue before the jury. Under those circumstances, we held it was error to admit evidence of that defendant’s intoxication.

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