Summary
dismissing wantonness claim under Virginia law because "[u]sing a cell phone while driving is undoubtedly potentially dangerous, but . . . it is in fact, unfortunately, an extremely common practice."
Summary of this case from Claussen v. PowerSecure, Inc.Opinion
Civil Docket No.: CL18-1229
06-21-2018
RE: Brent Snyder James v. Chadwick Ronald Krall, et al.
Shawn A. Voyles, Esq.
McKenry Dancigers Dawson, P.C.
192 Ballard Court, Suite 400
Virginia Beach, VA 23462 Daniel E. Lynch, Esq.
Lynch Seli, P.C.
2809 Emerywood Parkway, Suite 210
Richmond, VA 23294 Dear Counsel:
This matter comes before the Court on Defendants' Demurrer and motion to strike the request for punitive damages in Plaintiff's Amended Complaint. For the reasons stated herein, Defendants' motion is granted.
According to the Plaintiff's Amended Complaint, Defendant Krall was operating a vehicle in the course of his employment with Defendant Grice Enterprises, driving west on Interstate 64, when he collided into the rear of Plaintiff's vehicle. Plaintiff's was the last vehicle stopped in an approximately one-mile-long line of traffic waiting to exit onto Interstate 264 East. (Id. at ¶ 7). The Amended Complaint alleges that Krall was driving at an excessive speed and was looking at his smart phone while driving, causing the accident. (Id. at ¶¶ 15-16). The issue presented by the instant motion is whether these facts, if proven, would support the recovery of punitive damages. The Court holds that they would not.
ANALYSIS
The purpose of punitive damages is to protect the public, to punish the defendant, and to deter him and others from committing like offenses. Huffman v. Love, 245 Va. 311, 316 (1993). "A claim for punitive damages at common law in a personal injury action must be supported by factual allegations sufficient to establish that the defendant's conduct was willful or wanton." Woods v. Mendez, 265 Va. 68, 76 (2003). "Willful and wanton negligence is action undertaken in conscious disregard of another's rights, or 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." Id. at 76-77 (citing Alfonso v. Robinson, 257 Va. 540, 545 (1999) and Harris v. Harman, 253 Va. 336, 340-41 (1997)).
Willful and wanton negligence generally involves conduct that goes beyond that which shocks fair-minded people. Harris, 253 Va. at 341. The Supreme Court of Virginia is reluctant to allow punitive damages "in run-of-the-mill personal injury cases." Booth v. Robertson, 236 Va. 269, 273 (1988). Instead, Virginia case law restricts punitive damages "only in cases involving the most egregious conduct." Simbeck, Inc. v. Dod Sisk Whitlock Corp., 257 Va. 53, 58 (1999); Booth v. Robertson, 236 Va. at 272 (1988). Whether alleged facts are sufficiently egregious to state a claim for punitive damages must be determined on each case's own set of facts. Huffman, 245 Va. at 316.
Although the Court considers the cumulative factors as alleged by Plaintiff's Amended Complaint to determine whether or not Plaintiff has sufficiently pleaded a claim for punitive damages, the allegations that Krall was driving too close and at an excessive speed describe ordinary, rather than willful and wanton, negligence. The additional fact that he was paying attention to his cell phone rather than the road is the one that Plaintiff's counsel emphasized at oral argument as the factor that makes this case different from a "run-of-the-mill" speeding and/or following too close case.
The Court has located no controlling authority analyzing whether a driver's attention to his cell phone legally rises to the level of willful or wanton conduct, undertaken in conscious disregard of the rights of another. Virginia Supreme Court cases discussing a defendant's drunkenness while driving have come down both ways on whether to allow punitive damage. In Hack v. Nester, 241 Va. 499, 506-07 (1990), evidence that the defendant killed the other driver after he crossed into an oncoming lane, while driving drunk, and with only a single working headlight, was not sufficiently egregious to show a "conscious disregard for [another's] safety necessary to sustain an award of punitive damages." Id. at 507. In contrast, the facts of Booth v. Robertson, 236 Va. 269, 273 (1988), where the defendant drove his vehicle the wrong way down an exit ramp onto Interstate 81, narrowly missed a collision with a tractor-trailer that blinked his lights and blasted his air horn, drove another four-tenths of a mile the wrong way down the interstate, with a blood alcohol content of .22%, before colliding with the plaintiff, did sufficiently support a claim for punitive damages.
Woods v. Mendez, 265 Va. 68, 71, 76 (2003), like this case, considered the sufficiency of the pleadings rather than evidence proven at trial. Although that case held that the trial court erred in sustaining a demurrer to the punitive damages claim, the plaintiff had pleaded that the defendant was highly intoxicated after having consumed "at least 10 beers," had a blood alcohol content greater than necessary to establish a criminal conviction for DUI, continued to drink beer while driving the vehicle, was sleep-deprived, and knew he was tired and in danger of falling asleep at the wheel. Id. at 77. The Court concluded that based on those "cumulative circumstances" that "reasonable persons could differ" as to whether defendant Molle "acted with reckless indifference to the consequences of his actions with knowledge of the circumstance indicating he would probably cause injury to others." Id.
The Court simply cannot equate the act of permitting oneself to become briefly distracted by a mobile device while driving with the kinds of circumstances that have supported the imposition of punitive damages in the controlling case law. Using a cell phone while driving is undoubtedly potentially dangerous, but it is not only not "egregious," it is in fact, unfortunately, an extremely common practice. Driving while distracted by cell phone use is not "conduct going beyond that which shocks fair-minded people." Harris v. Harman, 253 Va. 336, 340-41 (1997)).
The Court recognizes that the distinction between ordinary and wanton negligence is often a matter of degree. If a driver were, for example, watching a television program on his phone while driving and consciously not looking at the road, that could be considered egregious conduct. The Amended Complaint pleads only that he was "looking and using his smart phone" (Amended Comp. at ¶ 15), which seems no more egregious than looking at the radio, looking at a passenger in the car, or any of the many other ways drivers allow themselves to become distracted. The Court construes the allegations in the Amended Complaint to describe ordinary negligence rather than willful and wanton negligence.
CONCLUSION
For the reasons stated above, the Court finds that the Amended Complaint fails to state sufficient facts to allege a claim for punitive damages. The Court therefore SUSTAINS Defendants' Demurrer to that claim. The Court directs counsel for Defendants to prepare an order consistent with the rulings stated herein and submit it within 15 days from the date of this Opinion.
Sincerely,
/s/
Mary Jane Hall
Circuit Court Judge MJH/MAN/nm