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Booth v. Robertson11/18/1988
In 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 plaintiff's 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.
The 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.
About 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.
The 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. The defendant later pleaded guilty to the charge of driving under the influence.
On 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).
The 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.
We 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 Baker opinion, 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).
The defendant next points out that we repeated the Baker quotation in Essex and 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
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