B R I E F

TO: Harry F. Fedora Jr., Esquire

FROM: National Legal Research Group, Inc.Mark S. Lindensmith, Senior Attorney

RE: Virginia/Automobile Injury/Passenger/Illegality Defense—Minor—Joy Ride

FILE: 60-18604-024 May 2, 1997

IN THE

SUPREME COURT OF VIRGINIA

Case No. ________

DEBRA S. SOUTH, as Mother andNext Friend of ROY JESSE SOUTH,

a Minor, et al.,

Petitioners-Plaintiffs,

v.

WILLIAM RANDALL BRICK,

Respondent-Defendant.

From the Circuit Court of the County of Western

_______________________________

PETITION FOR APPEAL_______________________________

Harry F. Fedora Jr., EsquireLaw Offices of Harry F. Fedora Jr., P.C.306A North Main StreetConverse, Virginia 24153(740) 399-6979

P. Brent White, EsquireInk, White & Black, P.C.Post Office Box 13206Powhatan, Virginia 24755(740) 989-1234

Counsel for Petitioners-Plaintiffs

i

SUBJECT INDEXPage

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

ASSIGNMENTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

NATURE OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT RULED, AS A MATTER OF LAW,THAT THE MINOR PLAINTIFF WAS BARRED FROM RECOVERY BYTHE ILLEGALITY DEFENSE; MATERIAL ISSUES OF FACT EXISTEDAS TO WHETHER THE PLAINTIFF'S CONSENT TO THE ALLEGEDILLEGAL ACTS WAS A KNOWING, VOLUNTARY CONSENT, ORWHETHER HIS PARTICIPATION CAME ABOUT THROUGH DURESS,COERCION, OR OVERWHELMING INFLUENCE BY HIS OLDERFRIEND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Presumption Of Criminal Incapacity Of The Plaintiff . . . . . . . . . . . . . . . 13

B. The Presumption Against Negligence Should Have Been Applied . . . . . 16

C. Public Policy Protective Of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

II. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT'SDEMURRER TO COUNT II OF THE AMENDED COMPLAINT; ASEPARATE CAUSE OF ACTION EXISTS BASED ON THEDEFENDANT'S VIOLATION OF V.C.A. § 46.2-894, WHERE THEDEFENDANT FLED THE SCENE OF THE ACCIDENT, THEREBYCAUSING ADDITIONAL DAMAGE TO THE PLAINTIFF . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE REQUIRED BY RULE 5:17(e)

ii

TABLE OF CITATIONS

Cases Page

Alger v. Simmerman, 8 Va. Cir. 26 (City of Winchester 1981) . . . . . . . . . . . . . . . . . . . . 25

Ballard v. Commonwealth, 228 Va. 213, 321 S.E.2d 284 (1984), cert. denied,470 U.S. 1085 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Beasley v. Bosschermuller, 206 Va. 360, 143 S.E.2d 881 (1965) . . . . . . . . . . . . . . . . . . 26

Bentley v. Felts, 248 Va. 117, 445 S.E.2d 131 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cowger v. R&T Overland Express, Inc., 8 Va. Cir. 21 (Frederick County 1981) . . . . . . 25

Doe v. Dewhirst, 240 Va. 266, 396 S.E.2d 840 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Endicott v. Rich, 232 Va. 150, 348 S.E.2d 275 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217 (1976) . . . . . . . . . . . . . . . . . . . . . . 27

Gough v. Shaner, 197 Va. 572, 90 S.E.2d 171 (1955) . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

James v. Commonwealth, 178 Va. 28, 16 S.E.2d 296 (1941) . . . . . . . . . . . . . . . . . . . . . 29

Jesse v. Commonwealth, 178 Va. 28, 16 S.E.2d 296 (194 . . . . . . . . . . . . . . . . . . . . . . . . 25

Law v. Commonwealth, 75 Va. 885 (1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16

Loving v. Mason, 206 Va. 613, 145 S.E.2d 131 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Norfolk Southern Railway v. Fincham, 213 Va. 122, 189 S.E.2d 380 (1972) . . . . . . . . . 18

Parrish v. Atlantic Coast Line Railroad, 221 N.C. 292, 20 S.E.2d 299 (1942) . . . . . . . 27

Smith v. Commonwealth, 8 Va. App. 109, 379 S.E.2d 374 (1989) . . . . . . . . . . . . . . . . . 24

South v. National Railroad Passenger Corp., 290 N.W.2d 819 (N.D. 1980) . . . . . . . . . 27

State v. Vineyard, 81 W. Va. 98, 93 S.E. 1034 (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Thomas v. Settle, 247 Va. 15, 439 S.E.2d 360 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

iii

TABLE OF CITATIONS (CONT'D)

Cases Page

Trotter v. Okawa, 248 Va. 212, 445 S.E.2d 121 (1994) . . . . . . . . . . . . . . . . . . . 11, 12, 16

Tubbs v. Argus, 140 Ind. App. 695, 225 N.E.2d 841 (1967) . . . . . . . . . . . . . . . . . . . . . . 27

Wackwitz v. Roy, 244 Va. 60, 418 S.E.2d 861 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Wash v. Holland, 166 Va. 45, 183 S.E. 236 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 16

Statutes

Va. Code Ann. § 8.01-424 (Michie 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Va. Code Ann. § 16.1-269.1 (Michie 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Va. Code Ann. § 18.2-63 (Michie 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Va. Code Ann. § 18.2-309 (Michie 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Va. Code Ann. § 46.2-894 (Michie 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 5 passim

Other

9B Michie's Jur. Va. & W. Va. Jur. Infants § 13 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . 13

43 C.J.S. Infants § 204 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

57A Am. Jur. 2d Negligence § 99 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

57A Am. Jur. 2d Negligence §§ 112 et seq. (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Annotation, Accident–Duty to Render Aid–Statute, 80 A.L.R.2d 299(1961 & Later Case Service) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Restatement (Second) of Torts § 322 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Restatement (Second) of Torts § 324 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

1

ASSIGNMENTS OF ERROR

1. The trial court erred when it ruled, as a matter of law, that the minor Plaintiff

was barred from recovery by the illegality defense; material issues of fact existed as to

whether the Plaintiff's consent to the alleged illegal acts was a knowing, voluntary consent,

or whether his participation came about through duress, coercion, or overwhelming influence

by his older friend.

2. The trial court erred in sustaining Defendant's demurrer to Count II of the

Amended Complaint; a separate cause of action exists based on the Defendant's violation of

Va. Code Ann. § 46.2-894, where the Defendant fled the scene of the accident, thereby

causing additional damage to the Plaintiff.

NATURE OF THE CASE

This is a Petition for Appeal from a ruling by the Circuit Court for the County of

Western, Judge George E. Johns III, presiding, wherein Judge Johns granted the Defendant's

Motion to Strike the Plaintiff's evidence in an automobile injury case and dismissed

Plaintiff's action without allowing the case to go to the jury.

The Plaintiffs in this action are Debra S. South, mother and next friend of the minor

Plaintiff, Roy Jesse South (known as Jesse), who was injured in the subject automobile

accident, and Debra S. South, individually. Hereinafter, the party Petitioners-Plaintiffs will

simply be referred to as "Plaintiff." Plaintiff filed an Amended Motion for Judgment against

the Respondent-Defendant, William Randall Brick, on June 20, 1995, seeking damages for

injuries Jesse South suffered while riding as a passenger in a car driven by Defendant Brick.

At the time of the accident, Jesse South was 13 years old and Brick was 16 years old. Brick

2

was an uninsured driver; therefore, Plaintiff's uninsured motorist carrier, Nationwide Mutual

Insurance Company, defended the action. Nationwide is the Respondent in the Petition for

Appeal.

Prior to trial, in a ruling dated November 28, 1995, Judge Johns sustained

Nationwide's demurrer to Count II of the Plaintiff's Amended Motion for Judgment, wherein

the Plaintiff asserted a separate cause of action against Brick because he left the scene of the

accident, knowing that his passengers had been injured, and because such behavior violated

V.C.A. § 46.2-894. The Plaintiff alleged that Brick's actions in violating the statute greatly

enhanced Plaintiff's injuries because of the delay in receiving medical care. The trial court

ruled that Brick's negligence in leaving the scene was merely a continuation of his original

negligence in causing the crash and did not give rise to a separate cause of action.

On January 15, 1997, the parties appeared before Judge Johns to select the jury for

the case and to present evidence. Defendant Brick did not appear in person or by counsel.

The court, however, determined that Brick had been properly served and that he would be

bound by the proceedings. The Plaintiff presented some of his evidence to the jury on

January 15, 1997, before the jury was dismissed for the day. After the jury was dismissed,

counsel for both parties presented the court with their proposed jury instructions on the

various legal issues which arose in the case. At that time, the court determined that it would

defer ruling on the proposed instructions until the following day. On January 16, 1997, the

Plaintiff presented the rest of his evidence (a medical witness) to the jury. After the Plaintiff

rested, and out of the presence of the jury, the Respondent, Nationwide, moved to strike the

Plaintiff's evidence and to enter judgment for the Defendant as a matter of law. The

3

Defendant's argument was based on the illegality defense—Plaintiff Jesse South should not

be allowed to recover damages for his injuries, because he consented to and was voluntarily

participating in an illegal act (taking the car without permission and joy riding) at the time

he was injured. The Plaintiff argued that a jury question was presented as to whether the 13-

year-old Plaintiff consented to and voluntarily participated in the illegal activity. Judge

Johns granted Nationwide's motion and dismissed the action without submitting the case to

the jury. He also ruled that the mother's claim for medical expenses would be dismissed

because it was a derivative claim which could not go forward if her son's cause of action

were dismissed.

Counsel for the Plaintiff properly preserved all objections to the court's rulings for the

record, including the November 28, 1995 ruling that no separate cause of action existed for

injuries caused by Brick's leaving the scene of the accident. The court's Final Order

dismissing the action was entered February 20, 1997. Plaintiff's Notice of Appeal was timely

filed. This Petition for Appeal is filed in an effort to have the rulings of the trial court

reversed so that the case may be properly submitted to a jury.

QUESTIONS PRESENTED

1. Did the trial court commit reversible error in removing the case from

consideration by the jury by ruling, as a matter of law, that the Plaintiff was barred from

recovery by the illegality defense even though material issues of fact existed as to whether

the minor Plaintiff's consent to participation in the alleged illegal acts was a knowing,

voluntary consent, or whether his participation came about through duress, coercion, or

overwhelming influence by his older friend? (Assignment of Error No. 1.)

4

2. Did the trial court commit reversible error in sustaining the Defendant's

demurrer as to Count II of the Plaintiff's Amended Complaint by ruling, as a matter of law,

that a separate cause of action did not exist based on the Defendant's violation of V.C.A. §

46.2-894, where the Defendant fled the scene of the accident knowing that the Plaintiff

needed medical assistance, thereby causing additional damage to the Plaintiff because of the

delay in the receipt of medical care? (Assignment of Error No. 2.)

STATEMENT OF THE FACTS

In the late evening hours of November 2, 1993, 16-year-old William ("Billy") Brick,

with the assistance of 12-year-old Jessica Fletcher and 13-year-old Roy Jesse ("Jesse")

South, took an automobile belonging to Jessica's mother without the mother's permission.

They took the car by obtaining the keys from a coffee table in Jessica's house. The three

went joy riding, with Billy Brick at the wheel and Jesse and Jessica as passengers. They

traveled in and around the Powhatan area and Western County without incident until about

2 a.m. on November 3, 1993, when Billy Brick lost control of the vehicle and it overturned.

Billy Brick was not injured, but both Jessica and Jesse were seriously injured. It was

apparent that Jesse sustained serious multiple trauma, particularly to his head, which was

bleeding profusely. There was evidence that Billy pulled Jesse from the wreckage but just

left him lying on the ground. It was quite apparent that both Jesse and Jessica needed

immediate medical attention, and the outside temperature was well below freezing. The

gravel road where the accident took place was dark and not well-traveled. It was also

apparent that Jesse and Jessica were injured to such an extent that they would be unable to

obtain medical assistance on their own. Even though there were several houses nearby, Billy

5

Brick left the scene of the accident and did not make any attempt to render assistance or

obtain assistance by contacting anyone to help his injured friends. Jesse and Jessica were

discovered by a passerby several hours later. Jessica was unconscious in the back of the

battered vehicle. Jesse was found unconscious outside the vehicle. The engine was cold,

and the blood on Jesse's face and hair was frozen.

As a result of the head injuries he received in the accident, Jesse suffered bleeding and

swelling in the brain which has resulted in catastrophic brain damage. In the opinion of Dr.

Bruce Stelmack, a specialist in rehabilitation for patients who have suffered brain injuries,

the delay in treatment of Jesse's head injury "probably had significant outcome in terms of

worsening the damage." (Tr. Vol. II at 30.)

Jesse, by his mother and next friend, filed a Motion for Judgment against Defendant

Brick, alleging in Count I that the Defendant's negligence in operating the vehicle

proximately caused Jesse's injuries, and alleging in Count II that the Defendant's willful and

wanton negligence in leaving the scene of the accident and failing to render aid, all in

violation of V.C.A. § 46.2-894, greatly enhanced the injuries and ultimate damage Jesse

suffered. The Defendant, defended by Nationwide Insurance under the Plaintiff's uninsured

motorist coverage, asserted the illegality defense, arguing that the Plaintiff was barred from

recovering damages because he was participating in an illegal act (the taking of the car and

joy riding) at the time he was injured.

Furthermore, Nationwide demurred to Count II of the Motion for Judgment, arguing

that no separate cause of action existed based on the Defendant leaving the scene and

refusing to give aid or call for assistance. The trial court sustained that demurrer, ruling that

6

Brick's failure to render aid after the accident did not give rise to a separate cause of action

under V.C.A. § 46.2-894, but was merely a continuation of the negligence which caused the

initial injuries. (Letter Op. of Nov. 28, 1995; Final Order at 5.)

On January 15 and 16, 1997, the Plaintiff presented his evidence concerning the

accident and his damages to a jury, with Judge George E. Johns III presiding. There was

testimony from Jesse's father and mother that, prior to the accident, Jesse had been an

average student, receiving mostly Cs, Ds, and some Bs on his report cards. (Tr. Vol. I at

156, 231.) There was extensive testimony that Jesse was "all boy" and that his parents had

to keep after him to do his school work and simple chores around the house or he would let

the work slide. (Id. at 158.) Basically, he was a follower, not a leader, and he had become

good friends with, and had come under the influence of, the older boy, Billy Brick, who lived

near Jesse in the same neighborhood. (Id. at 161, 163.)

Jesse would help Billy mow lawns, and Billy would keep all the money, because,

according to Jesse, "they were all Billy's yards." (Id. at 161.) When Jesse's father pointed

out the unfairness of that arrangement, Jesse's response was simply that "they were Billy's

yards" and that Billy would keep all the money. (Id. at 162.) In another incident, Jesse's

father specifically told Jesse to stay off of a mo-ped motorbike that another child in the

neighborhood owned, and Jesse followed those orders. But when Billy Brick bought the

motorbike, Jesse rode with Billy on the first day Billy had the motorbike, and they had an

accident in which Jesse was slightly injured. (Id. at 168-69.) After the motorbike accident,

Jesse's parents were concerned about the negative influence Billy was having on Jesse, and

7

they restricted the circumstances under which Jesse could go places with Billy or go to

Billy's house.

Nevertheless, as testified to by Jessica Fletcher, Jesse's girlfriend and the other

passenger in the car, Billy's influence over Jesse remained strong. She testified extensively

and consistently that Jesse was the follower and Billy was the leader, and that Jesse wanted

to be like and do things like Billy. Jesse would try to do things to impress Billy, and if Billy

asked Jesse to do something, he would just do it. (Id. at 190-91.) She said that Jesse never

got in trouble unless Billy was around, and that Jesse acted differently when he was around

Billy—always doing things to try to impress the older boy and to make Billy like him more.

(Id. at 193.) Indeed, on the evening that Jesse called Jessica to make arrangements to take

her mother's car keys, she said she could hear Billy in the background. She said she could

hear Billy telling Jesse "to tell me if we didn't take Mom's car, then they were going to bust

out the windshield." (Id. at 191.) She said she could hear Billy Brick in the background

telling Jesse what to do.

When the children took the keys and took the car, again Billy was the leader, telling

Jesse what to do. Jessica took the keys and gave them to Jesse, who in turn gave them to

Billy. Billy was the driver and told Jesse to push the car away from the house before he

(Billy) started it, so they would not be heard. (Id. at 193.) Once they undertook the trip,

Billy did all the driving and did not stop except once, some distance from their homes. (Id.

at 212.) After they had been driving around for some time, Jessica mentioned that it was

getting late and that maybe they should return home. (Id.) The accident took place on the

8

way home. After the accident, Jessica remembers waking up briefly and seeing Billy pulling

Jesse from the wreckage. (Id. at 217.)

The remainder of the pertinent testimony by Plaintiff's witnesses consisted of

testimony by Jesse's mother and one of his doctors concerning the extent of his injuries and

the care that he requires. At the end of the first day of testimony, and out of the presence of

the jury, attorneys for the parties presented proposed jury instructions to the court concerning

pertinent questions of law in the case. As the record reflects, at that time counsel for

Nationwide again asserted the illegality defense, which had been raised in pretrial motions,

arguing that the Plaintiff should not be allowed to recover any damages, as a matter of law,

because he was involved in an illegal act at the time of his injuries. (Tr. Vol. II at 35.) After

the Plaintiff's evidence was complete, Nationwide moved to strike Plaintiff's evidence, again

asserting the illegality defense. (Id. at 34.)

Counsel for the Plaintiff argued that whether the illegality defense should be applied

to bar Plaintiff's recovery in the present case was a question of fact which needed to be

presented to the jury upon proper instructions, because reasonable men could differ as to

whether Jesse voluntarily consented to participating in the taking of the car and joy riding,

especially in light of Jesse's young age and the extensive influence the older boy had over

him. (Id. at 49.)

In his opinion on the record, Judge Johns determined, as a matter of law, that Jesse

South consented to and voluntarily participated in the unlawful conduct and, therefore, was

barred from recovery. (Id. at 70.) In so ruling, Judge Johns stated he was of the opinion that

even though a presumption against negligence arises in favor of a child between the ages of

9

seven and fourteen in the civil context on the issue of contributory negligence, he knew of

no similar presumption which arises in the context of a child's violation of the criminal law.

(Id. at 62.) In examining the evidence which had been presented, Judge Johns noted that

Jesse was a 13-year-old average student who wanted very much to impress his older

companion. Judge Johns called Jesse's behavior when he was around Billy Brick

"immature." (Id. at 64.) Judge Johns pointed out that there was testimony that Jesse had

raised the possibility of taking Jessica's mother's car with Jessica the day before the incident,

when Jesse was not in the immediate presence of Billy. From such testimony, the court

concluded that Jesse had exercised his free will in deciding to go through with the scheme.

(Id. at 65.) In so ruling, the court stated:

Counsel for Nationwide has correctly pointed out that a minor under theage 14 can be found guilty of criminal behavior, although it may be couchedin the language which is unique to the juvenile justice system. Illegality as adefense is not a negligence-based concept. And the presumption surroundingthe ability of the Court to establish standard of care and safety does not applyto illegality. Therefore, the question then is not just participation in the illegalevent, but consent to that event and then following that would actually involveconsent.

And I agree wholeheartedly with Mr. White [counsel for Plaintiff],consent in this context does not merely mean saying yes. Consent must bevoluntary; must be made in appreciation of the criminality of the conduct; anda determination, even if it's mistakenly made, to violate the law.

The evidence supports a finding that Jesse South consented toparticipate in an illegal act here.

(Id. at 67-68.)

Despite Plaintiff's argument that a fact question for the jury was raised on the issue

of Jesse's voluntary, knowing consent based on his age, experience, and the extensive

10

influence the older boy had over him, the trial judge ruled that, in his view of the evidence,

"reasonable people could not disagree in the conclusion that Jesse South consented to his

participation in an unlawful act." (Id. at 70.)

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT RULED, AS A MATTER OFLAW, THAT THE MINOR PLAINTIFF WAS BARRED FROMRECOVERY BY THE ILLEGALITY DEFENSE; MATERIAL ISSUESOF FACT EXISTED AS TO WHETHER THE PLAINTIFF'S CONSENTTO THE ALLEGED ILLEGAL ACTS WAS A KNOWING,VOLUNTARY CONSENT, OR WHETHER HIS PARTICIPATIONCAME ABOUT THROUGH DURESS, COERCION, OROVERWHELMING INFLUENCE BY HIS OLDER FRIEND.

This is a case in which there was extensive evidence that the Plaintiff, who was 13

years old at the time of the accident, was heavily influenced and swayed by his older friend,

Billy Brick. This is also a case in which the trial court failed to properly take into account

the presumption that a 13-year-old is incapable of criminal intent unless it is proven

otherwise, as well as the presumption that a 13-year-old is incapable of contributory

negligence unless it is proven otherwise. By failing to take into account these legal

presumptions in favor of the 13-year-old Plaintiff, and by imposing his own views

concerning the importance and weight of the evidence concerning the Plaintiff's ability to

make voluntary, consensual decisions about whether to engage in criminal activity with his

older friend, the trial court in this matter invaded the province of the jury and committed

reversible error.

First, it is clear under Virginia law, as noted by the trial court and conceded by

Nationwide, that before the illegality defense may be applied as a bar to the Plaintiff's action,

11

his consent to participation in the illegal activity which gave rise to his injuries must be

"consent, freely given without fraud or duress." Trotter v. Okawa, 248 Va. 212, 445 S.E.2d

121, 123 (1994); Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721, 722 (1990) (illegality defense

will bar plaintiff's recovery where plaintiff consents to participation in crime; consent must

be "freely given without fraud or duress"); see also Wackwitz v. Roy, 244 Va. 60, 418 S.E.2d

861, 865 (1992) (if decedent was of unsound mind at the time he committed suicide, then he

would not have been guilty of the common-law crime of suicide; therefore, the trial court

erred in ruling, as a matter of law, that the estate's negligence action based on the suicide was

barred by the illegality defense--a defense based on the decedent's act of self-destruction).

In Trotter v. Okawa, for example, a male patient brought a malpractice action against

his female psychologist and her employer for inappropriate, harmful treatment when the

psychologist initiated sexual intercourse with him. The defendants argued that the plaintiff

was barred from recovery as matter of law based on the illegality defense because the patient

had participated in the illegal act of fornication. Citing the case of Zysk v. Zysk (also

involving fornication), the trial court in Trotter ruled that the plaintiff was barred from

recovery as a matter of law and dismissed the action. The supreme court, however, reversed

and remanded, ruling that in order for the illegality defense to act as a bar to recovery, the

plaintiff must have engaged in the illegal activity with consent that is freely given without

fraud or duress. Moreover, the court noted, the pleadings in Trotter alleged that Trotter (the

patient) had engaged in the acts of sexual intercourse with his therapist under duress and

12

coercion "caused by [the therapist's] exploitive treatment of her patient." 445 S.E.2d at 124.

Therefore, the illegality defense would not bar the plaintiff's action as a matter of law.

In the present matter, even the trial judge agreed that in order for the illegality defense

to bar Plaintiff's action, Jesse must have consented to the illegal activity of joy riding, stating,

"[C]onsent in this context does not merely mean saying yes. Consent must be voluntary;

must be made in appreciation of the criminality of the conduct." (Tr. Vol. II at 68.)

Nevertheless, the trial judge made the factual determination at the end of Plaintiff's evidence

that the Plaintiff, as a matter of law, had voluntarily and knowingly "consented" to the illegal

activities on the night of the accident. Such a determination was an erroneous usurpation of

the duties of the jury in this matter, especially in light of the child's tender years and the

attendant presumption against criminal culpability which attaches, and in light of the

uncontradicted evidence which demonstrated that Billy Brick had a strong, overwhelming

negative influence over Jesse South.

A. Presumption Of Criminal Incapacity Of The Plaintiff.

The trial court was simply wrong in its conclusion that a presumption against criminal

responsibility (and, therefore, consent to participation in a criminal activity)--similar to the

presumption against negligence which attaches to a 13-year-old plaintiff in the civil context--

did not attach to a 13-year-old. The law in Virginia and elsewhere is well-settled that "An

infant between the ages of seven and fourteen is within the age of discretion but is still

presumed incapable of criminal intention." 9B Michie's Jur. Va. & W. Va. Infants § 13, at

660 (1995); see Law v. Commonwealth, 75 Va. 885, 888 (1881); State v. Vineyard, 81 W.

Va. 98, 93 S.E. 1034, 1035 (1917) ("[B]etween the ages of seven and fourteen the

13

presumption that an infant is doli incapax is prima facie . . . and liable to be overcome by

clear and convincing proof. . . . The law is that when he is shown to be under fourteen years

of age the whole burden is then cast upon the state to prove his capacity to commit the

crime"). See generally 43 C.J.S. Infants § 204, at 529 (1978) ("[A]n infant under the age of

seven is conclusively presumed to have no capacity to commit a crime. Between the ages

of seven and fourteen . . . there is a presumption in favor of his incapacity").

Thus, in Law v. Commonwealth, the Virginia Supreme Court reversed the conviction

of an 11-year-old for assisting his older brother in an attempt to commit rape, ruling that the

evidence in the case had been insufficient to overcome the presumption that the boy did not

have the capacity to understand the nature of his act or its consequences. In that case, the

11-year-old (who was almost 12) held his hand over the girl victim's mouth while his older

brother attempted to rape her. In holding that the evidence had been insufficient to overcome

the presumption of incapacity, the Virginia court stated the pertinent facts and law as

follows:

[I]t appears that the accused was eleven years and eleven months old when theoffence was committed. It was proved that he was a boy of average discretionfor his age, and this was all that was proved on the subject of his capacity andintelligence. The question is whether, upon this proof, he was properlyconvicted. The law, with respect to the responsibility of infants for crime, iswell settled. An infant, under seven years of age, is conclusively presumed tobe incapable of crime, and no evidence can be received to rebut thepresumption. Between seven and fourteen, he is within the age of discretion,but still presumed doli incapax. This, however, is a mere prima faciepresumption which may be rebutted by evidence of capacity sufficient tounderstand the nature of the act and its consequences. . . .

. . . .

14

In the case before us, as has been already stated, the only direct proofof capacity is that the accused was a boy of average capacity for his age. If itbe meant by this that his capacity was about equal to that of other boys of thesame age, the proof amounts to nothing. For the rule which presupposes thewant of requisite intelligence in a child under fourteen, is founded upon whatis considered to be the average capacity of that age. It is therefore notsufficient to prove the offender possessed the amount of intelligence whichother children of the like age possessed. The Commonwealth must go further,and prove that the offender in the particular case understood the nature of hisact and its consequences[.]

75 Va. at 889-90.

Particularly relevant to the present case is the Law court's further discussion of certain

evidence which might have been viewed as demonstrating that the boy knew exactly what

he was doing when he put his hand over the girl's mouth to keep her from crying out. The

court stated:

This is certainly a circumstance to be considered; but, of itself, it is notsufficient in this case to warrant a conviction. The principal offender, nodoubt the real contriver of the outrage, was the elder brother of the accused.It may be—it is highly probable—that the latter was prompted in all that hedid by the directions or persuasion of his more matured companion. At allevents, it is very clear that this question of guilty knowledge, on the part of theaccused, did not receive on the trial that attention and investigation to whichit was entitled. . . . [I]t must not be forgotten that the evidence of malice,which is to supply age, must be clear and strong beyond all doubt andcontradiction. That evidence is wanting in this case[.]

Id. at 890-91 (emphasis added).

Likewise, in the instant case, there was ample evidence that the real contriver of the

theft of the car keys and of the joy ride was the older boy, Billy Brick. Moreover, there was

ample evidence that it was highly probable that Jesse was prompted in all that he did on the

night of the accident by the directions and persuasion of his more mature companion.

Indeed, there was ample evidence that, under the overwhelming influence of Billy Brick,

15

Jesse South became a different person at times, acting out in ways that never manifested

themselves when Billy Brick was not around. In short, the evidence in the present case was

insufficient to overcome the presumption in the present case that Jesse—by all accounts an

"average" 13-year-old boy—did not have the capacity to voluntarily, knowingly, and freely

consent to the criminal activity which gave rise to his injuries. At the very least, jury

questions were presented concerning the boy's consent and capacity to consent, which made

it error for the trial court to dismiss Jesse's action as a matter of law. Jesse's consent and his

capacity to consent should have been submitted to the jury with proper instructions.

16

B. The Presumption Against Negligence Should Have Been Applied.

The trial judge in this matter correctly pointed out that the present case raises a

question of first impression—whether the illegality defense, as it has been applied in cases

such as Zysk v. Zysk and Trotter v. Okawa, may be applied to bar a negligence action by a

13-year-old boy. Counsel for the Plaintiff has been unable to find any authority directly on

point. Theoretically, there does not appear to be anything wrong with applying the illegality

defense to a minor, as long as it can be determined that the minor knowingly, voluntarily, and

freely consented to participation in the criminal conduct.

The closest analogous authority on the issue of whether a child of 13 consented to an

illegal act for purposes of the illegality defense can be found in cases such as Law v.

Commonwealth, discussed above. Nevertheless, another strong analogy exists in the long

line of cases dealing with whether and under what circumstances a child may be found to

have been contributorily negligent.

The trial judge rejected the application of the negligence cases involving minors,

stating that "[i]llegality as a defense is not a negligence-based concept." (Tr. Vol. II at 67.)

It is true that the illegality defense is not, strictly speaking, based on contributory negligence

concepts. It is based on the public policy notion that the "courts will not assist the

participant in an illegal act who seeks to profit from the act's commission." Zysk v. Zysk, 404

S.E.2d at 722. Nevertheless, the result of the application of the illegality defense and the

application of contributory negligence is the same. In the former situation, the claimant who

knowingly participated in an illegal act will be barred from recovery; and in the latter

situation, the claimant who is found to have been contributorily negligent will be barred from

17

recovery. Therefore, the cases dealing with the alleged contributory negligence of children

between the ages of seven and fourteen provide an appropriate analogy for purposes of

determining whether the present case should have been submitted to the jury. As the

Virginia cases clearly demonstrate, the present case should have been submitted to the jury

with an instruction telling the jury to weigh and consider the child's age, intelligence, and

experience in determining whether Jesse voluntarily, and freely consented to his participation

in the illegal acts on the night of the accident.

It is well established in Virginia that a child between the ages of seven and fourteen

years at the time of an accident is presumed to be incapable of contributory negligence, and

the burden is upon the defendant to overcome the presumption, unless the child's capacity

is proven by his own evidence. Doe v. Dewhirst, 240 Va. 266, 396 S.E.2d 840, 842 (1990).

In the context of contributory negligence, "[t]he presumption of incapacity is overcome when

the evidence shows that a reasonable person of like age, intelligence, and experience would

understand the danger of his conduct under the same or similar circumstances." 396 S.E.2d

at 842.

Even a brief review of the Virginia cases dealing with the contributory negligence

of minor plaintiffs reveals that, under the circumstances of the present case, a jury question

was presented concerning Jesse's capacity to consent and freely participate in the illegal acts.

See Doe v. Dewhirst (jury question presented as to whether 10-year-old plaintiff was

contributorily negligent in stepping from automobile into path of oncoming vehicle);

Endicott v. Rich, 232 Va. 150, 348 S.E.2d 275, 279 (1986) (evidence concerning whether 13-

year-old boy riding bicycle was contributorily negligent when he collided with motorist was

18

for the jury; defendant "first had to rebut the presumption that Endicott [the boy] was

incapable of negligence"); Norfolk Southern Railway v. Fincham, 213 Va. 122, 189 S.E.2d

380, 384 (1972) (question of whether nine-year-old boy whose leg was crushed beneath

wheels of moving train on which he was climbing was contributorily negligent was for the

jury; the court noted that the boy was presumed to be incapable of negligence and that "the

presumption prevails unless rebutted by sufficient proof to the contrary"); Wash v. Holland,

166 Va. 45, 183 S.E. 236, 239 (1936) (question of whether girl, who was almost nine, was

contributorily negligent when she ran into the path of a car was for the jury; question of her

capacity to be contributorily negligent was fact question where two teachers and bus driver

testified that the child was unusually well developed both mentally and physically and was

above the average intelligence).

A negligence case of particular interest in the present matter is Gough v. Shaner, 197

Va. 572, 90 S.E.2d 171, 175 (1955), where the defendant asserted that the 13-year-old

decedent was contributorily negligent per se for violating an ordinance which prohibited

riding on the back of a motorbike. In ruling that a modified negligence per se instruction

which had been requested should have been given in the case because of the boy's young age,

the court pointed out that the proposed instruction "does not tell the jury that the decedent's

violation of the ordinance constituted negligence per se which would have been

unquestionably true had he been over the age of fourteen years." 90 S.E.2d at 174. The

court stated:

The instruction recognized decedent's immature age (thirteen years) andthe usual resultant, rebuttable presumption that he was incapable ofcontributory negligence. Though he had violated the ordinance, yet the

19

instruction would have permitted the jury to determine, after considering hisage, intelligence, maturity and experience, whether or not in the exercise ofreasonable care he knew or should have known of the danger of riding doubleon the motorcycle. If the jury concluded that decedent violated the ordinancein fact, and in view of his age, intelligence, maturity and experience, he wasnegligent in so doing, then the instruction also rightly left to the jury for it todetermine the issue of whether or not his negligence in that respectproximately caused or contributed to his death.

Id. at 175.

The Gough court held the instruction was the correct principle of law to be applied

when the violator of an ordinance or statute is a minor. It is the Plaintiff's position in the

present case that a similar instruction could have and should have been fashioned in the

present case, whereby the trier of fact would have been asked to take into account Jesse's

age, intelligence, maturity, and experience in deciding whether he voluntarily, and freely

consented to participation in the illegal acts on the night of the accident, for purposes of

applying the illegality defense. The contributory negligence cases involving minors, as well

as the cases involving the presumption against a 13-year-old's capacity to commit a criminal

offense, discussed above, all point to the inescapable conclusion that the trial judge in the

present case committed reversible error. Whether Jesse knowingly consented—free from

overwhelming influence or coercion—to participation in the illegal acts leading up to his

injuries should have been decided by the jury upon proper instructions.

The case of Thomas v. Settle, 247 Va. 15, 439 S.E.2d 360 (1994), cited by the

Defendant in the present matter for the proposition that a minor who operates a motor vehicle

should be held to the same standard of care as an adult who operates a motor vehicle, is

clearly not applicable to the instant case and is not controlling. In Thomas, the court

20

addressed the question of whether the 16-year-old driver in that case, a driver who was

licensed to drive the car in question and was, in fact, operating the vehicle at the time of the

accident, would be held to an adult standard of care in the operation of the car. Obviously,

the Thomas case bears no relationship to the present case, where the conduct and consent of

a 13-year-old passenger is at issue.

C. Public Policy Protective Of Children.

Even assuming for the sake of argument that the trial court was correct in stating that

the illegality defense is not based on negligence principles, but is based on the public policy

of the state--the policy that the courts will not lend aid to someone who bases his cause of

action on an illegal act—there is another very strong and very obvious public policy at stake

in the present case. That public policy is reflected in the numerous statutes and cases which

impose special presumptions and protections in favor of minors. In the present case, where

the minor Plaintiff stands to lose his cause of action for catastrophic injuries based on his

alleged participation in an illegal act, the public policies protective of children of like age

must be taken into account and balanced against the policy which prohibits a wrongdoer

from recovering damages arising out of his wrongdoing.

The strong public policy favoring children—giving them a presumption against

culpability in negligence and criminal cases—is reflected in the case law discussed above

in sections (A) and (B) of this argument. But it is further reflected in the numerous Virginia

statutes which convey special, protective status to children 13 years of age, such as the

Plaintiff. See, e.g., Va. Code Ann. §§ 16.1-269.1 (Michie 1996) (providing special hearing

procedures for juveniles 14 years old or older who are charged with a crime, to determine

21

if they may be tried in circuit court; otherwise, for children under age 14, jurisdiction

remains in juvenile court), 8.01-424 (Michie 1992) (requiring court approval of compromises

in suits wherein a person under disability, including a minor, is a party), 18.2-63 (Michie

1996) (statutory rape section providing that if any person has sex, without the use of force

(i.e., with consent), with a child 13 years of age or older but under 15 years of age, such

person shall be guilty of a Class 4 felony), 18.2-309 (Michie 1996) (making it a Class 1

misdemeanor for any person to sell, give, or furnish to a minor a dirk, switchblade knife, or

bowie knife).

The above samples of special legislation for minors are just a few examples of the

strong policy of the state which puts the welfare of children ahead of certain other policies

and procedures. As was stated in Ballard v. Commonwealth, 228 Va. 213, 321 S.E.2d 284,

286 (1984), cert. denied, 470 U.S. 1085 (1985), with reference to the juvenile court law in

Virginia:

Code § 16.1-227, part of the juvenile court law, provides that "in allproceedings the welfare of the child . . . is the paramount concern of theState." Hence, juveniles enjoy a privileged status in the law, a status notenjoyed by adults.

321 S.E.2d at 286.

If, in all proceedings in Virginia, the welfare of the child is the paramount concern of

the state, then the presumption against criminal culpability and the presumption against

negligence which attaches to 13-year-old parties should have been applied in the instant case.

And those presumptions should have prevailed unless they were overcome by clear evidence

that Jesse, in fact, did voluntarily and freely (without coercion or overwhelming influence)

22

consent to participation in the illegal acts on the night of the accident. On the facts of the

present case, evidence on the question of consent should have been submitted to and weighed

by the jury.

II. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT'SDEMURRER TO COUNT II OF THE AMENDED COMPLAINT; ASEPARATE CAUSE OF ACTION EXISTS BASED ON THEDEFENDANT'S VIOLATION OF V.C.A. § 46.2-894, WHERE THEDEFENDANT FLED THE SCENE OF THE ACCIDENT, THEREBYCAUSING ADDITIONAL DAMAGE TO THE PLAINTIFF.

Count II of the Plaintiff's Amended Motion for Judgment alleged that the driver of the

vehicle, Brick, knew that the vehicle he had been driving had been involved in an accident,

and knew that both passengers, including Plaintiff Jesse South, were seriously injured and

in need of medical care. The Motion for Judgment further alleged that, in violation of his

statutory duties under V.C.A. § 46.2-894, Brick fled the scene of the accident without

rendering reasonable aid or assistance, and failed to summon help. As a direct and proximate

result of this statutory violation, the Motion for Judgment alleged, that the Plaintiff suffered

substantially worse injuries than he otherwise would have sustained if timely medical care

had been obtained.

In sustaining Nationwide's demurrer to Count II, the trial judge ruled, in a letter

opinion dated November 28, 1995, that Brick's violation of § 46.2-894 did not give rise to

a separate cause of action for the enhanced injuries caused by the delay in receiving medical

assistance. In so ruling, the trial court stated:

We turn then to the question of whether a separate cause of actionarises because of Brick's violations of Virginia Code Sec. 46.2-894.

23

On the facts of this case, the court finds that it does not. Brick'snegligent operation of the automobile (based on the facts before us) was theproximate cause of the injuries sustained by South. Those injuries were severeand the argument is advanced that their severity was increased by Brick'sfailure to raise a hue and cry and seek immediate assistance. But Brick'snegligence in not seeking assistance is but a continuation of the negligence thatproximately caused the injuries, not an intervening cause that creates aseparate cause of action. Thus, while he may, on the facts as currently beforethe court, be accountable for the increased severity of what he has alreadycaused, his failure to appropriately respond after the accident does not createa new cause of action.

(Letter Opinion at 3.)

Although there are no on-point Virginia cases addressing the question of whether

violation of this particular statute may give rise to civil liability on the part of the violator,

as Plaintiff pointed out to the trial court in briefs presented on the demurrer, there are

numerous cases (indeed, a majority) from other jurisdictions which hold that the violation

of similar stop-and-render-aid statutes does give rise to a separate civil cause of action. See

generally Annotation, Accident—Duty to Render Aid—Statute, 80 A.L.R.2d 299 (1961 &

Later Case Service). And although there are no Virginia Supreme Court cases on point, it

is clear from the statute itself, from other relevant Virginia case law, and from well-

established principles concerning the common-law duty to render aid to a person to whom

a party has caused injury, that a separate cause of action did exist under the facts of this case,

and it was error not to allow the Plaintiff to go forward with that separate claim.

First, the statute itself provides as follows:

The driver of any vehicle involved in an accident in which a person is killedor injured or in which an attended vehicle or other attended property isdamaged shall immediately stop[.]. . . The driver shall also render reasonableassistance to any person injured in such accident, including taking such injured

24

person to a physician, surgeon, or hospital if it is apparent that medicaltreatment is necessary or is requested by the injured person.

V.C.A. § 46.2-894.

As can be seen from the plain language of the statute, the provision imposes a duty

to stop and render reasonable aid whenever the driver of any vehicle is involved in an

accident in which a person is injured, regardless of the reason for the accident and regardless

of whether the driver was at fault. Also, as can be seen from the plain language of the

statute, its purpose is to require drivers involved in accidents to remain at the scene, to

provide appropriate identification, and to "render reasonable assistance" to any person

injured so that their injuries might not be enhanced by a lack of appropriate medical care. As

has been stated by the Virginia Court of Appeals, in a criminal case in which the defendant

argued that the statute did not apply to him because he did not hit anyone with his truck--a

hitchhiker merely fell out of the back of the truck--the purpose of the statute is to prevent a

motorist from evading criminal or civil liability. The court stated:

The purpose of Code § 46.1-176 [now § 46.2-894] is to prevent motoristsinvolved in accidents from evading civil or criminal liability by leaving thescene of an accident and to require drivers involved in an accident to provideidentification information and render assistance to injured parties. We holdthat these duties apply regardless whether a collision has occurred or a personhas been struck.

Smith v. Commonwealth, 8 Va. App. 109, 379 S.E.2d 374, 377 (1989) (emphasis added).

Moreover, as has been stated by the supreme court, the offense (and, hence, the

breach of duty) under the statute does not commence until after injury has already been

inflicted in an automobile accident. See Jesse v. Commonwealth, 178 Va. 28, 16 S.E.2d 296,

298-99 (1941) (applying the forerunner to the present § 46.2-894, the court stated that the

25

statutory offense was a felony and "[t]he acts constituting the offense do not commence until

after the injury or damage has been inflicted"); see also Cowger v. R&T Overland Express,

Inc., 8 Va. Cir. 21, 22 (Frederick County 1981) ("[T]he statute requires the driver involved

in an accident to stop at the scene of the accident and perform various duties irrespective of

whether the driver may have been guilty of negligence or not and mandate of the statute

extends equally to the innocent and the guilty. . . . [V]iolation of the statute is something

which occurs after the accident" (emphasis by court)); Alger v. Simmerman, 8 Va. Cir. 26,

28 (City of Winchster 1981) ("Leaving the scene of the accident is conduct after the fact"

(emphasis by court)).

Thus, the trial judge's conclusion in the instant case that the violation of § 46.2-894

was merely a "continuation" of Brick's negligence in operating and crashing the automobile

is simply wrong. Clearly, there was a separate duty to stay at the scene and render

reasonable assistance, regardless of whether Brick could be considered at fault or negligent

in causing the original accident.

It is also clear that § 46.2-894 is a traffic statute, included under chapter 8 of the

motor vehicle code pertaining to the "Regulation of Traffic." It is well-established in

Virginia that a violation of a traffic statute constitutes negligence per se (i.e., breach of the

duty imposed by the statute), and that liability for that violation will be imposed if it was a

proximate cause of the injuries suffered. See Bentley v. Felts, 248 Va. 117, 445 S.E.2d 131,

133 (1994) (violation of traffic statute constitutes negligence, and imposition of liability

depends on whether the negligence is a proximate cause of the accident); Loving v. Mason,

206 Va. 613, 145 S.E.2d 131, 134 (1965) (violation of traffic statute defining reckless

26

driving and prescribing rules of the road constitutes negligence sufficient to support a civil

action if such negligence was a proximate cause of the injury or damage sustained).

In the present case, there was clear evidence that Brick violated the statute by leaving

the scene and failing to render reasonable assistance. Moreover, there was clear,

uncontradicted medical evidence that the long delay in medical care, as the result of Brick

leaving the scene and failing to promptly contact authorities, was a proximate cause of

enhanced injury and brain damage to Jesse South. As was noted by the supreme court in

Bentley v. Felts, whether the violation of the traffic statute could be considered a proximate

cause of the damage suffered by Jesse South is generally a question of fact for the jury. 445

S.E.2d at 133. See also Beasley v. Bosschermuller, 206 Va. 360, 365, 143 S.E.2d 881, 886

(1965). Certainly, proximate cause was a fact question in this case, and the trial court erred

in sustaining the demurrer concerning Plaintiff's Count II.

That there was a separate cause of action based on the separate duty to render

reasonable aid under the facts of this case is further supported by well-established common-

law duties. Although the Virginia Supreme Court apparently has not addressed the common-

law duties which attach in a case such as this, the general rule in most jurisdictions and under

the Restatement (Second) of Torts is clear:

If the actor knows or has reason to know that by his conduct, whether tortiousor innocent, he has caused such bodily harm to another as to make himhelpless and in danger of further harm, the actor is under a duty to exercisereasonable care to prevent such further harm.

Restatement (Second) of Torts § 322 (1965); see also 57A Am. Jur. 2d Negligence § 99, at

153-54 (1989) (there is a duty on part of actor to render assistance to one who has been

27

injured by contact with the actor, even though injury may not have been caused by

negligence, and failure to render such assistance constitutes actionable negligence if the

injury is aggravated through the lack of care); Tubbs v. Argus, 140 Ind. App. 695, 225

N.E.2d 841, 843 (1967); Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217, 222 (1976);

Parrish v. Atlantic Coast Line Railroad, 221 N.C. 292, 20 S.E.2d 299, 304-05 (1942)

("[A]lthough there is no duty to aid others imperilled without the defendant's fault, but

through his conduct, . . . yet if plaintiff is hurt through defendant's fault, defendant must take

steps necessary to mitigate the hurt"); South v. National Railroad Passenger Corp., 290

N.W.2d 819, 836-37 (N.D. 1980) ("[W]e hold that a person who knows or has reason to

know that his conduct, whether tortious or innocent, has caused harm to another has an

affirmative duty to render assistance to prevent further harm. One who breaches such a duty

is subject to liability for damages incurred as a result of the additional harm proximately

caused by such a breach").

Furthermore, § 324 of the Restatement provides as follows:

One who, being under no duty to do so, takes charge of another who ishelpless adequately to aid or protect himself is subject to liability to the otherfor any bodily harm caused to him by

(a) the failure of the actor to exercise reasonable care to secure thesafety of the other while within the actor's charge[.]

See also 57A Am. Jur. 2d, supra, §§ 99, at 154, 112 et seq. (although there may be no duty

originally to aid a person in danger or distress, a duty to use reasonable care to render aid

may arise after one voluntarily assumes to aid another).

28

Thus, in the present case, even if Brick, the driver, had not breached a specific

statutory duty to remain at the scene and render reasonable aid to the Plaintiff, under the

common law of most jurisdictions (as reflected in the Restatement), he breached a duty to

render reasonable aid, which proximately caused damage to Jesse South. Brick left the scene

of the accident, abandoning his friends to their injuries and to the elements. Moreover,

although Brick apparently pulled Jesse South from the wreckage, he simply left him lying

on the cold ground, bleeding from serious head wounds. Brick then just ran away, without

calling for assistance, without reporting the accident to authorities, and without rendering any

further aid whatsoever. Therefore, a separate cause of action for that breach of the duty to

render reasonable assistance existed, and Count II of the Amended Motion for Judgment

should not have been dismissed on the demurrer.

Whether the breach of the separate duty to render reasonable assistance is considered

to be a statutory or a common-law duty, it is clear under the facts of the present case that the

illegality defense asserted by Nationwide would not have barred the Plaintiff's claim based

on that breach. As discussed extensively under Part I of this Petition for Appeal, in order for

the illegality defense to act as a bar to Plaintiff's claim, the Plaintiff's participation in the

illegal act which gave rise to his injuries must have been a knowing, consensual participation.

The negligence by Brick which gave rise to Jesse South's enhanced brain injuries was Brick's

negligent, willful, and wanton act of leaving the scene and abandoning his injured

companions. Obviously, Jesse South did not consent to or voluntarily participate in this

separate illegal act of leaving the scene. He was seriously injured and unconscious, unable

to consent as a matter of law. Therefore, as a matter of law, the illegality defense cannot act

29

as a bar to Jesse South's separate cognizable cause of action against Brick based on Brick's

leaving the scene of the accident, which resulted in enhanced brain damage to Jesse.

30

CONCLUSION

For the above-stated reasons, the Petitioner respectfully requests that this Petition for

Appeal be granted in order that the errors committed below may be corrected and this case

may be submitted to a jury for decision under proper instructions.

Respectfully submitted,

________________________________Harry F. Fedora Jr., EsquireLaw Offices of Harry F. Fedora Jr., P.C.306A North Main StreetConverse, Virginia 24153(740) 399-6979

P. Brent White, EsquireInk, White & Black, P.C.Post Office Box 13206Powhatan, Virginia 24755(740) 989-1234

Counsel for Petitioners-Plaintiffs

CERTIFICATE REQUIRED BY RULE 5:17(e)

Petitioner: Debra S. South, as Mother and Next Friend of Roy Jesse South, a Minor;Debra S. South, Individually

Petitioner'sCounsel: Harry F. Fedora Jr., Esquire

Law Offices of Harry F. Fedora Jr., P.C.306A North Main StreetConverse, Virginia 24153(740) 399-6979

P. Brent White, EsquireInk, White & Black, P.C.Post Office Box 13206Powhatan, Virginia 24755(740) 989-1234

Respondent: William Randall Brick

Respondent'sCounsel: Ronald M. Ayers, Esquire

Johnson, Ayers & MatthewsPost Office Box 2200Powhatan, Virginia 24009(540) 982-3666

A copy of this Petition was mailed to Respondent's counsel named above on

____________________, 1997.

Petitioner desires to state orally and in person to a panel of this Court the reasons why

this Petition for Appeal should be granted.

______________________Harry F. Fedora Jr., Esquire