Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Willful Wanton Misconduct.

2011 Volpe v. City of Lexington, 281 Va. 630, 708 S.E.2d 824.

Child drowned in river that was designated as a city park designed for swimming. Trial Court incorrectly held that dangerous current was open and obvious condition. Although the potential dangerousness of the water itself may have been open and obvious, what was not open and obvious was the dangerous current which created a hydraulic beneath the water surface. Jury issue likewise created as to whether or not this condition constituted a form of recklessness or total disregard of precautions amounting to gross negligence on the part of the City. As a matter of law, however, this conduct on the part of the City did not rise to the level of willful and wanton negligence.

2011 Kaltman v. All American Pest Control, 281 Va. 483, 706 S.E.2d 864.

Plaintiff alleged that pest control employee failed to thoroughly clean equipment before applying the pesticide to the home in question. These facts do not justify a claim of willful and wanton misconduct.

2005 Green v. Ingram, 269 Va. 281, 608 S.E.2d 917.

In this police shooting case, plaintiff asserted claim for punitive damages based upon willful and wanton misconduct. Willful and wanton misconduct is different from any form of negligence, not just in degree but in kind. Negligence conveys an idea of inadvertence. Willful and wanton misconduct conveys the idea of design or purpose. A person guilty of willful and wanton conduct intends his act but not the resulting harm. In this case, where a police officer intentionally shot at a door, he did not know that there was anyone behind the door and as such, he is not guilty of willful and wanton misconduct.

2004 Cowan v. Hospice Support Care, Inc., 268 Va. 482, 603 S.E.2d 916.

Wrongful death action asserted on behalf of decedent who had been patient at hospice alleging improper care. Claims were for negligence, gross negligence, and willful and wanton misconduct. Charity is immune from liability to its beneficiaries for negligence caused by acts or omissions of its agents provided the charity has exercised due care in their selection and retention. This immunity does not extend to claims made by persons who have no beneficial relationship but are mere invitees or strangers. Court defines again the distinction between negligence, gross negligence, and willful and wanton conduct and concludes that immunity only applies to claims for simple negligence.

2004 Etherton v. Doe, 268 Va. 209, 597 S.E.2d 87.

In this non-contact auto altercation, plaintiff alleged road rage on the part of John Doe constituting assault and willful and wanton conduct. In regards to assault, there is no requirement that victim be physically touched. Jury issues presented as to both claims.

2003 Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174.

Motor vehicle accident. Rear-ender; defendant checks on plaintiff’s car, sees injury, and flees. Allegation of slurred speech. Jury award of punitive damages reversed; failure to maintain control of vehicle, possible use of alcohol, and felony hit and run insufficient to establish willful and wanton negligence. Court notes no allegation made of improper speed and that defendant was operating a properly functional car in the proper lane. Follows definition of “willful and wanton negligence” from Woods v. Mendez, 265 Va. 68, 76–77, 574 S.E.2d 263, 268 (2003) (“action undertaken in conscious disregard of another’s rights, or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.”)

2003 Wilby v. Gostel, 265 Va. 437, 578 S.E.2d 796.

Plaintiff’s decedent was thrown from bumper of Defendant’s van and killed when defendant accelerated to 25 mph then rapidly decelerated. Both plaintiff and defendant had been drinking; disputed as to whether decedent had jumped on front bumper before or after van was already in motion. Summary judgment granted to defendant on issue of contributory negligence, but no counts dismissed. Plaintiff non-suited; defendant appealed order of non-suit. Order of non-suit affirmed. Implicit acknowledgement that jury issue existed as to whether defendant’s conduct was willful and wanton negligence; additional jury issue as to whether plaintiff was guilty of willful and wanton negligence.

2003 Woods v. Mendez, 265 Va. 68, 574 S.E.2d 263.

Plaintiff is passenger in car hit by two drunk drivers. Allegation that first driver was intoxicated, continued to drink while driving, knew he lacked sufficient sleep and was in danger of falling asleep, and actually fell asleep and hit plaintiff at 60 mph sufficient basis for claim of punitive damages. Allegation of intoxication and intentional swerving across three lanes of traffic likewise sufficient basis for punitive damages against a second driver.

1999 Alfonso v. Robinson, 257 Va. 540, 514 S.E.2d 615.

Truck operated by Alfonso stalled. Driver was able to steer truck into right hand lane. Truck thereafter was rear-ended by plaintiff. Issue was whether truck driver was guilty of wanton and willful negligence. Willful and wanton negligence, unlike gross or ordinary negligence requires actual or constructive consciousness that injury will result from act done or omitted. In this case, Alfonso was a professional driver who had received specialized safety training warning against omissions he made prior to accident. He had been instructed that deployment of safety flares and reflective triangles was first act that should be taken after securing disabled truck. He knew that the purpose of such safety devices was to warn motorists. Despite this training and knowledge, Alfonso consciously chose to leave disabled truck in travel lane, on interstate highway, without placing any warning devices, with knowledge that this would likely cause injury to others. Disabled truck was entirely in traveled portion of highway, at night time, in a very dark area, where speed limit was 55 miles per hour. Jury issue presented as to willful and wanton negligence.

1997 Harris v. Harman, 253 Va. 336, 486 S.E.2d 99.

Harris was tailgating Harman. Harman driven off road in this no-contact accident. Harman alleges that Harris was guilty of contributory negligence. Trial court refused to instruct jury on willful and wanton negligence of Harris. Tailgating in this instance does not arise to willful and wanton misconduct so as to bar contributory negligence.

1995 Clohessy v. Weiler, 250 Va. 249, 462 S.E.2d 94.

Pedestrian walking in the street on the wrong side of the road with her back to traffic was hit by driver speeding (35/25) at night without lights and a fogged windshield. Trial court erred in submitting issue of willful and wanton negligence to jury, no evidence supported a finding that the defendant had any prior knowledge of specific conditions likely to cause injury.

1993 Wright v. Norfolk and Wester Railway Co., 245 Va. 160, 427 S.E.2d 724.

Truck driver injured when hit by train at railroad crossing. Crossing did not have warning signals. Railroad not guilty of willful and wanton negligence; truck driver guilty of contributory negligence where familiar with crossing and visibility defects inherent in his truck; plaintiff continued over tracks despite visibility problems and had windows rolled up, a/c on high, and both radio and cb on. No error in trial court setting aside jury verdict in favor of plaintiff.

1992 Owen-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 413 S.E.2d 630.

Asbestos case. Manufacturer knew its product could cause lung disease, actively concealed the danger, and failed to warn insulators of the danger while simultaneously warning its own employees. Evidence sufficient to support punitive damages.

1991 Wolf v. Baube, 241 Va. 462, 403 S.E.2d 338.

Head-on collision death case. Defendant driving in wrong lane, without lights, and with 0.18 BAC. Plaintiff’s decedent speeding at least (60/45) at point of impact. Plaintiff’s decedent in left lane of 3-lane highway; Defendant in same lane coming in opposite direction. Plaintiff’s decedent swerves in center lane to avoid defendant who also swerves to center lane. As a matter of law plaintiff’s decedent was not guilty of willful and wanton negligence, though he may have been guilty of gross negligence. Defendant guilty of willful and wanton negligence and thus unable to rely on defense of contributory negligence.

1990 Infant C. v. Boyscouts of America, Inc., 239 Va. 572, 391 S.E.2d 322.

Boy Scout sued convicted pederast scoutmaster. Trial court dismissed all counts against scoutmaster on the grounds that all three sounded in negligence, while evidence established intentional tort. Supreme Court reversed as to willful and wanton negligence. Defendant’s testimony that he didn’t intend to hurt plaintiff along with testimony of psychiatrist confirming lack of intent to harm, though knowledge of recklessness, was a sufficient basis for sending willful and wanton negligence claim to the jury.

1988 USAA v. Webb, 235 Va. 655, 369 S.E.2d 196.

Insurance coverage case. Sole question as to whether acts of willful and wanton negligence were covered under the policy; no discussion as to what acts constituted willful and wanton negligence.

1988 Philip Morris Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268.

Texaco buried cylinders containing toxic chemicals on land subsequently sold to Philip Morris. Philip Morris begins excavation; Texaco provides locations of cylinders to Philip Morris along with some details regarding contents. Philip Morris hires an incompetent subcontractor to dispose of chemicals. Subcontractor causes chemical release injuring several employees and rescue workers. Texaco and Philip Morris not guilty of willful and wanton negligence as a matter of law because their efforts, while negligent and inadequate, did show some concern for the safety of others. Sufficient evidence for jury to conclude subcontractor guilty of willful and wanton negligence where subcontractor knew he was hired to dispose of dangerous chemicals, knew some of the cylinders contained pentaborane (a very toxic chemical) and should have treated unmarked cylinders with same care as those marked pentaborane, and acted in a reckless manner in exposing unknown chemical (later found to be pentaborane) from unmarked cylinder to open air without taking any precautions-including not even issuing oxygen masks to himself and employees.

1987 Litchford v. Hancock, 232 Va. 496, 352 S.E.2d 335.

Northbound driver sues southbound driver who is towing oversize load and has oversize warnings posted. Plaintiff had at least 100 yards visibility; evidence that southbound driver attempted to pull over. Jury issue as to contributory negligence; plaintiff alleged willful and wanton negligence for first time on appeal, so issue waived.

1986 Wallen v. Allen, 231 Va. 289, 343 S.E.2d 73.

School bus rear-ended by tractor-trailer. Evidence that driver had been driving 18 wheel/5 axle trailers for only two weeks (prior experience with 10 wheel/3 axle), had only three hours sleep, driven over 150 miles and loaded a trailer, and coupled and uncoupled four trailers prior to accident, and had class A instead of “class A chauffeur” license insufficient basis for punitive claim against employer. License status had no effect on accident-driver would have been able to drive that specific truck with his license had he owned the truck. Employer had no notice of problems in driving record because no history of problems. There was no danger which prudent inquiry would have disclosed. Jury award of punitive damages reversed.

See the pages on Wikipedia for information on punitive damages.