State Supreme Court rules girl can sue father

By Chris Dumond, The News & Advance – 6/10/2010

A girl badly hurt in a 2005 crash can sue her father for not being placed in a car seat, the Supreme Court of Virginia ruled Thursday, reversing an earlier ruling by Bedford County Circuit Court Judge James Updike.

The girl’s mother sued Billy Bradley Evans II in 2008 on the girl’s behalf, asking for $100,000 in compensatory and punitive damages. The lawsuit claimed Evans put his 4-year-old daughter in a foam portable seat in the floorboard of his 1972 Ford Pickup truck on Christmas Eve 2005, then got into a head-on collision with another driver on Jordantown Road near Stewartsville.

The girl suffered severe injuries, including several broken bones, severe cuts, a broken skull and a brain injury, according to the lawsuit.

Evans’ lawyer, however, had the case dismissed by arguing that the Virginia law requiring child safety seats states, “A violation of this section shall not constitute negligence….”

Updike ruled the language precluded the filing of a lawsuit based on the fact she was not put into a car seat.

A majority of the Supreme Court disagreed and held that the intent of the law instead was to say that a violation of the safety seat law wasn’t enough on its own to find a person negligent.

The case will now return to Bedford County Circuit Court to proceed.

The court reversed Updike’s ruling for four reasons:

• A jury could find the child’s placement on the floorboard of a truck is a separate act of negligence aside from his failure to put her in a car seat,

• The safety seat statute refers only to plain negligence and not to gross negligence,

• Updike mistakenly interpreted the law, “in such a way as to create the absurd result of immunizing a wrongdoer for any degree of negligence in transporting a child in a motor vehicle,” and

• The statute may say that a violation of the safety seat law may not be used to prove negligence, but it also says a violation can’t be a defense against a claim for personal injuries of a child or “the recovery of medical expenses for injuries sustained in any motor vehicle accident.”

Justice Cynthia Kinser disagreed with the majority.

Kinser agreed with Updike, writing that she believed the intent of the General Assembly was to prevent allegations of negligence in civil lawsuits based on the failure of a person to secure a child in a safety seat.

“What could be more plain, clear, and expressly stated than… ‘shall not constitute negligence,’” she wrote.

Justice Bill Mims, a former state delegate, senator and attorney general, agreed with the majority in a separate opinion, taking issue with Kinser’s conclusion.

“The dissenting opinion concludes that the General Assembly intended to replace entirely the tort remedy for those injured children,” Mims wrote. “Therefore, a guilty wrongdoer who pays his $50 fine is immune from any further consequence, while his injured child victim is left without the previously available redress for her grievous injuries.”

Steven Emmert, a Virginia Beach-based appeals court lawyer and chairman of the Virginia Bar Association’s Appellate Practice Section, said he agrees with Mims, but thinks Kinser’s reading of the law is probably the correct one.

“Really, if you were a defendant, would you rather face a $50 fine or a multi-million-dollar tort suit? The trouble with this otherwise sensible approach is that the legislature used the unambiguous language that it did,” Emmert wrote in an analysis Thursday. “Unambiguous language doesn’t need to be construed, and you don’t go peering into legislative intent or other methods of statutory construction when the language is plain.”