Arndt v. Russillo

343 S.E.2d 84, 231 Va. 328, 1986 Va. LEXIS 197
CourtSupreme Court of Virginia
DecidedApril 25, 1986
DocketRecord 830138
StatusPublished
Cited by9 cases

This text of 343 S.E.2d 84 (Arndt v. Russillo) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arndt v. Russillo, 343 S.E.2d 84, 231 Va. 328, 1986 Va. LEXIS 197 (Va. 1986).

Opinions

THOMAS, J.,

delivered the opinion of the Court.

Edward George Strike was killed while riding as a passenger in his own car. Strike had allowed his friend Steven Michael Russillo to drive. Strike’s administratrix, Joyce L. Arndt, sued Russillo. Russillo defended on the grounds of contributory negligence or assumption of risk on Strike’s part. The jury found in favor of defendant Russillo and the trial court entered judgment on the jury verdict. However, because jury verdicts in Virginia are general, we do not know whether the jury believed Strike was contributorially negligent or whether the jury believed he assumed the risk.

On appeal, Strike’s administratrix contends, among other things, that the evidence was insufficient to support either of the theories of defense advanced by Russillo. We agree. Therefore, we will reverse the judgment of the trial court.

The accident occurred on August 27, 1981, about 11:00 p.m. At the time of the accident, Strike and Russillo, both teenagers, had been together for about three hours. Russillo met Strike at 8:00 p.m. at the end of Strike’s soccer practice. Russillo was to spend the night at Strike’s home. Both boys drove from the soccer field to Strike’s house.

They stayed at Strike’s house for a short while, then decided to go out. On the way out of the house, Strike went into the kitchen and took a bottle of brandy. He placed this in the back of his Ford Mustang automobile and the two drove down a dirt road from the house. Partway down the dirt road, Strike stopped the car, got out, and went into a trailer near the road. He retrieved a cooler containing ice, placed the cooler in the back seat of the Mustang, and put the brandy in the cooler. He then drove to the road in front of his house. He drove a short distance down that road, [330]*330again stopped the car, again got out, and this time retrieved a bottle of champagne, which he also put in the cooler. After picking up the champagne, Strike drove for another five to ten minutes, at which time Russillo remarked that he had never driven a Mustang before. Strike stopped and turned the car over to Russillo, who drove for “quite awhile.” Strike did not resume driving until later that evening.

While the boys were in the car, the brandy and champagne bottles were opened. Russillo admitted that he had “some” brandy and two sips of champagne. Yet, Russillo did not testify to the effect of the drinks upon himself. Nor did he say whether he acted in such a manner as to arouse Strike’s suspicion that Russillo was unable to drive properly. Neither did Russillo say whether he was driving at the time he took the drinks. Russillo remembered passing a bottle to Strike but said he did not see Strike take a drink.

It was dark when Strike resumed driving. When he got back behind the wheel he drove erratically. According to Russillo, Strike “put two of the wheels on somebody’s lawn.” Russillo does not remember how long Strike continued to drive from that point.

Russillo said they drove to a McDonald’s Restaurant in Fredericksburg and stayed there ten minutes. While there, Strike bought a large soda. Russillo testified that he is not sure whether during that stop Strike drank anything from either of the two bottles.

The boys left the McDonald’s and drove down River Road, the road on which the accident occurred. Strike turned into a dirt parking lot where the two “[w]ent to the bathroom.” Russillo drove from the parking lot. The accident occurred thereafter. However, the record does not make clear the length of time between Russillo’s taking the wheel and the occurrence of the accident. Russillo said he does not remember the accident.

Two eyewitnesses testified that forty minutes before the accident they saw a Mustang come down River Road, hit its brakes, skid, then speed off. The witnesses said that the same thing occurred about fifteen minutes later. The two testified that they thought the Mustang involved in the two instances of braking, skidding, and speeding was the same car involved in the accident. However, neither witness could identify the occupant, occupants, or driver of the car at the time of the two prior incidents.

Immediately before the fatal collision, the two witnesses heard an engine racing and tires squealing. They saw the Mustang pass them at a speed in excess of the posted 35 mile per hour limit. [331]*331The Mustang appeared to turn left in front of an on-coming car. Strike, who was on the passenger side of the Mustang, was killed, as was the driver of the other car.

At the scene of the accident, one of the eyewitnesses said Russillo looked dazed yet seemed to understand what was going on and gave intelligent responses. On cross-examination, this witness was asked to explain what he meant by saying Russillo seemed dazed. The witness responded: “He acted like somebody had been drinking.” Russillo was never tested to determine his blood alcohol level.

The main issue is whether there was sufficient evidence to support the defenses of assumption of risk and contributory negligence. A collateral issue concerns the admissibility of evidence of the blood alcohol level of the decedent passenger. Our disposition of the first issue makes it unnecessary for us to address the collateral issue.

Russillo’s theory of Strike’s contributory negligence or assumption of risk is atypical. In one version of the usual case, the driver of the car contends that the injured passenger either knew or should have known that the driver had been drinking and that the driver’s ability to drive was impaired, yet the passenger entered the car or continued to ride in the car despite an opportunity to get out. We have stated that such facts, if believed by a jury, could support the defense of contributory negligence. See Dickenson v. Tabb, 208 Va. 184, 156 S.E.2d 795 (1967). In another version of the usual case, the driver of the car contends that the injured passenger knew that the driver had been drinking and that the driver’s ability to drive was impaired, yet the passenger with full knowledge of the circumstances voluntarily entered the car or continued to ride therein despite an opportunity to get out. Such facts have been found to support the defense of assumption of risk. See Stoner v. Robertson, Adm’r, 207 Va. 633, 151 S.E.2d 363 (1966); Arrington, Adm’r v. Graham, Adm’r, 203 Va. 310, 124 S.E.2d 199 (1962).

In Arrington, we discussed the difference between contributory negligence and assumption of risk; we wrote as follows:

The doctrines of assumption of risk and contributory negligence are not identical. They are closely associated; but there is a distinction between them which has not always been observed in the decisions.
[332]*332“The essence of contributory negligence is carelessness; of assumption of risk, venturousness. Thus an injured person may not have acted carelessly; in fact, may have exercised the utmost care, yet may have assumed, voluntarily, a known hazard. If so, he must accept the consequence.” Hunn v. Windsor Hotel Company, 119 W. Va. 215, 193 S.E. 57, 58; Tiller v. N. & W. Ry. Co., 190 Va.

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Arndt v. Russillo
343 S.E.2d 84 (Supreme Court of Virginia, 1986)

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Bluebook (online)
343 S.E.2d 84, 231 Va. 328, 1986 Va. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arndt-v-russillo-va-1986.