Summary
The Supreme Court of Virginia held that the plaintiff presented sufficient evidence for a jury to consider claims of assault and willful and wanton conduct arising from a non-contact automobile incident. The court concluded that the trial court improperly struck those claims and reversed and remanded for trial on the assault and willful and wanton conduct issues.
Topics
Practice areas
Questions Presented
- Whether the evidence was sufficient to submit the assault claim to the jury in a non-contact automobile tort case.
- Whether the evidence was sufficient to submit the willful-and-wanton-conduct claim and related punitive-damages issue to the jury.
- Whether the jury's defense verdict on ordinary negligence rendered harmless the trial court's striking of the assault and willful-and-wanton claims.
Holdings
- The trial court erred in striking Etherton's assault evidence because the driver's repeated lane incursions and abrupt braking, viewed with the surrounding circumstances, could permit a jury to find an intentional act creating a reasonable apprehension of imminent harmful or offensive contact, even though no physical contact occurred.
- The trial court erred in striking the evidence because a jury could find that the driver deliberately swerved into Etherton's lane and abruptly braked while consciously disregarding the danger that his conduct would injure her.
- The negligence verdict did not render harmless the trial court's error in striking the assault and willful-and-wanton claims because those torts are conceptually distinct from ordinary negligence.
Key quotations
“To establish the tort of assault, the plaintiff must prove that the defendant performed "an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in the other person's mind a reasonable apprehension of an imminent battery."” (268 Va. at 211; 597 S.E.2d at 89)
“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.” (268 Va. at 212; 597 S.E.2d at 89)
Factual background
While driving beside Etherton's vehicle, the unidentified driver repeatedly stared at Etherton's daughter and twice swerved into Etherton's lane, forcing her toward the curb. He then rapidly pulled in front of her vehicle and slammed on his brakes, causing her to brake and strike the curb without contacting his car. Etherton struck the steering wheel and later required surgery for an infected abdominal hematoma.
Procedural history
Etherton sued John Doe in negligence, assault, and willful and wanton conduct arising from a non-contact automobile incident. The trial court granted motions to strike the assault and willful-and-wanton claims, submitted only negligence to the jury, and entered judgment for Doe after the jury returned a defense verdict. The Supreme Court of Virginia awarded an appeal, reversed, and remanded for trial on the assault and willful-and-wanton claims.
Remand instructions
Remand for trial on the issues of assault and willful and wanton conduct.