A girl can now sue her father over her injuries in an auto accident after the Virginia Supreme Court avoided the “inequitable result” of leaving her without a remedy for his failure to secure her properly in a car seat.

The ruling in Hannah Evans's case clarifies that a Virginia law requiring children up to age 8 be placed in a child restraint device when traveling in a motor vehicle does not preclude a common-law claim for negligent transportation of a child.

Hannah was four years old when her father, Billy Evans, collided with another vehicle after allegedly putting her “in a [portable] foam seat in the floorboard of a 1972 [pickup] truck” he was driving. As a result of the alleged failure to secure her properly, she was “violently thrown about in the undercarriage and cab area” of the truck.

By suing her father, she would be able to collect damages for her injuries from his insurer. The suit alleged he was “negligent and grossly negligent.”

A Bedford County, Va., trial judge dismissed the case under Virginia Code Section 46.2-1095(A), which provides that a violation of the law requiring the use of child restraint devices “shall not constitute negligence.”

“[T]he General Assembly exerted a whole lot of effort here to say this kind of conduct ... is not  going to be the basis for a civil action in this Commonwealth,” Judge James W. Updike said.

But a 6-1 majority of the Supreme Court reinstated Hannah's claim in a June 10 decision. “[C]onstruing the statutory scheme as a whole,” it said Section 46.2-1095(A) precludes only a claim for negligence per se and the Legislature did not intend to “abrogate a cause of action based upon common law negligence when the facts involve the failure to secure a child in a child restraint device.”

Both Justice Donald W. Lemons, writing for the majority, and the dissenter, Justice Cynthia D. Kinser, devoted a lot of space to comparing Section 46.2-1095(A) with Section 46.2-1098, which states that “[v]iolations of this article shall not constitute negligence per se.”

While Lemons concluded that “the 'negligence' referred to in Code § 46.2-1095(C) is the same per se negligence referenced in Code § 46.2-1098,” Kinser said the terms should be “presumed to have distinct and different meanings.”

“By its holding today, the majority presumes the General Assembly did not '[choose], with care, the words it used when it enacted [Code § 46.2-1095(C)],'” she continued. “I believe, however, that the General Assembly fully understands the significant legal difference between the terms 'negligence' and 'negligence per se.'”

But in a concurring opinion, Justice William C. Mims cut to the common-sense heart of the matter. Abrogating the tort remedy for “grievously injured children such as Hannah,” he noted, would mean that the “guilty wrongdoer” who pays the “negligible” $50 fine for violating Section 46.2-1095(A) “is immune from any further consequence.”

“I do not believe the General Assembly intended such an inequitable result when it enacted this remedial statute to protect the safety of children,” Mims said.

If the case goes to trial, Hannah Evans will not be able to introduce her father's alleged violation of Section 46.2-1095(A) as evidence that he was negligent. She is seeking $100,000 in compensatory and/or punitive damages.

By Matthew Heller
6/17/10