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PRESENT:   Hassell, C.J., Lacy, Koontz, Kinser, and Lemons, JJ.,
and Carrico and Compton, S.JJ.
JOHN DOE                                                           OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v.    Record No.  021513                                           April  17,  2003
MAUREEN B. ISAACS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
The sole issue in these tort actions is whether the
evidence supports a judgment for common law punitive damages.
On April  1,  1999, an automobile operated by plaintiff Allen
Leonard Isaacs, in which his wife, plaintiff Maureen B. Isaacs,
was a front-seat passenger, was struck from the rear in the City
of Virginia Beach by an automobile operated by an unknown
motorist.
Subsequently, the plaintiffs filed separate actions against
defendant John Doe, seeking compensatory and punitive damages as
the result of injuries sustained in the accident.    The cases
were consolidated for trial, and heard by a single jury.
The defendant admitted liability in both cases; they were
submitted to the jury on the issue of compensatory damages and,
over defendant's objection, on the issue of punitive damages.
The jury fixed Mrs. Isaacs' compensatory damages at
$275,000 and her punitive damages at  $175,000, and fixed Mr.
Isaacs' compensatory damages at  $125,000 and his punitive




damages at  $175,000.    Overruling defendant's post-trial motion
to set the punitive damage awards aside, the trial court entered
judgment on the verdicts. Defendant appeals, assigning error to
that portion of the judgment awarding punitive damages.
The facts are undisputed.    About  10:25 p.m. on the day in
question, the plaintiffs' vehicle approached a city intersection
controlled by traffic signals.    The weather was clear and "a
little bit dark," the streets were dry, and traffic was "very
light."
The plaintiff was operating his vehicle east on Shore Drive
about  45 miles per hour in the right lane.    He slowed as he
neared the intersection because the traffic light facing him was
"red" and a vehicle, also travelling east on Shore Drive, was
stopped ahead of him at the light.    As the plaintiff "was about
ready to stop, the traffic light changed," and the vehicle ahead
of him "took off."    At that moment, the plaintiffs' vehicle "got
hit from the back by a car."    Mrs. Isaacs described the impact
as "really tremendous" and "awful."
When struck, the plaintiff was "braking" and his "foot went
down on the pedal to brake harder, even."    "After that," the
plaintiffs' vehicle stopped at "the far side of the intersection
in the middle."    He was "really concerned" about his wife's
condition.    Mrs. Isaacs, who momentarily lost consciousness,
said, "I'm hurt."
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At that point, as Mr. Isaacs was standing outside his
vehicle, the unknown motorist approached on foot; "he kind of
staggered" and Isaacs "was concerned about him."    The defendant
asked whether anyone was injured and Mr. Isaacs responded, "Yes.
My wife is hurt."
The defendant then moved "into the doorway where Maureen
was.    And he started to shake the car, for whatever reason.    It
looked like he was having trouble standing where he was,"
according to Isaacs.
Next, the defendant, "slurring" his speech, said to Mr.
Isaacs, "Please don't call the police."    Isaacs responded, "I'm
gonna have to, because my wife is hurt."    The defendant then
stated to Mrs. Isaacs, "Don't call the police.    I need to talk
to you first."    Mr. Isaacs again rejected the request.
Next, defendant said, "You could stop here.    I could bring
my car down  .  .  . I can park over there, and you can park over
there, we will be out of the way of everybody, and we can talk."
When Isaacs said he could not talk further, defendant said,
"Well, I'll run up and get my car and come down here."    Assuming
defendant would care for his wife while he went for help, Isaacs
"walked across the street" and called emergency personnel.    Mrs.
Isaacs remained in the vehicle, feeling "abandoned and alone and
scared."
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Neither of the Isaacs saw nor heard again from the
defendant, who they described as a white male about  35 to  40
years of age.    They did not observe the defendant's vehicle
before or after the incident.
The impact of the collision pushed the "back end" of the
plaintiffs' car forward, and the floor in the rear "popped up;"
the front seats "ended up all the way down on the floorboard."
At the scene, Mr. Isaacs did not complain of injury to the
investigating police officer while Mrs. Isaacs "complained of
back and leg injuries."    She testified that, after the impact,
she had blood on her face and hand.
Virginia law applicable under these circumstances is clear.
"[N]egligence which is so willful or wanton as to evince a
conscious disregard of the rights of others, as well as
malicious conduct, will support an award of punitive damages in
a personal injury case."    Booth v. Robertson,  236 Va.  269,  273,
374 S.E.2d  1,  3  (1988).    See Code  §  8.01-44.5  (provides for
exemplary damages for injury or death caused by intoxicated
driver).
In Woods v. Mendez,  265 Va.  68,  574 S.E.2d  263  (2003), the
Court noted the definition of "willful and wanton negligence"
set forth in Harris v. Harman,  253 Va.  336,  340-41,  486 S.E.2d
99,  101  (1997), as "action undertaken in conscious disregard of
another's rights, or with reckless indifference to consequences
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with the defendant aware, from his knowledge of existing
circumstances and conditions, that his conduct probably would
cause injury to another."                                               265 Va. at  76-77,  574 S.E.2d at  268.
However, "the intentional violation of a traffic law, without
more, will not support a finding of willful and wanton
negligence."    Alfonso v. Robinson,  257 Va.  540,  545,  514 S.E.2d
615,  618  (1999).
On appeal, the plaintiffs contend the trial court did not
err in deciding that a jury question was presented on the issue
of punitive damages.    They argue that defendant's conduct in
"leaving the scene under the circumstances of this case is alone
grounds for an award of punitive damages."
Continuing, plaintiffs say that because defendant "knew the
seriousness of" their injuries, "he enhanced their damages by
virtue of his leaving," committing "felony hit-and-run with the
intent to place his self interest above" their needs.    These
actions, plaintiffs maintain, were "sufficient to permit the
jury to find his conduct so willful and wanton as to show a
conscious disregard of the plaintiffs' rights."    We do not
agree.
An analysis of this Court's relevant cases on common law
punitive damages will demonstrate that such damages are not
recoverable here as a matter of law.
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Parenthetically, we observe there is abundant law on this
subject in the opinions of this Court.    Therefore, we do not
need guidance from the cases of other jurisdictions relied upon
by the plaintiffs.    Indeed, they urge upon us an unpublished
decision of the United States Court of Appeals for the Fourth
Circuit, Clark v. Torres, No.  90-3039,  1992 U.S. App. LEXIS  2736
(4th Cir. Feb.  27,  1992)  (per curiam).    But the Fourth Circuit's
Local Rule  36(c) provides, in part:    "Citation of this Court's
unpublished dispositions in briefs and oral arguments in this
Court and in the district courts within this Circuit is
disfavored, except for the purpose of establishing res judicata,
estoppel, or the law of the case."    If reliance on such a
disposition is disfavored in the federal system, surely such
reliance will not be favored in the state system.
In Baker v. Marcus,  201 Va.  905,  114 S.E.2d  617  (1960),
this Court held that the trial court erred in submitting the
question of punitive damages to the jury.    There, an intoxicated
defendant caused a rear-end collision on a city street.
The Court reviewed the purpose of punitive damages:
"Exemplary damages are something in addition to full
compensation, and something not given as plaintiff's due, but
for the protection of the public, as a punishment to defendant,
and as a warning and example to deter him and others from
committing like offenses."    Id. at  909,  114 S.E.2d at  620
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(quoting Zedd v. Jenkins,  194 Va.  704,  707,  74 S.E.2d  791,  793
(1953)).
Further, in the general discussion of the subject, the
Court said:    "Exemplary 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.    But
where the act or omission complained of is free from fraud,
malice, oppression, or other special motives of aggravation,
damages by way of punishment cannot be awarded, and compensatory
damages only are permissible."    Id. at  909,  114 S.E.2d at  621
(quoting Wood v. Am. Nat. Bank,  100 Va.  306,  316,  40 S.E.  931,
934  (1902)).    Accord PGI, Inc. v. Rathe Prod. Inc.,  265 Va.  334,
345,  576 S.E.2d  438,  444  (2003).
In Booth, the Court reversed a trial court's judgment in
striking the plaintiff's evidence on the issue of punitive
damages.    There, the defendant drove his motor vehicle after
dark the wrong way down an exit ramp of an interstate highway;
continued driving the wrong way on the highway; met and passed
an approaching truck, the driver of which blew his air horns,
blinked his lights, and took evasive action avoiding a
collision; and continued at a high rate of speed until he
collided head-on with a vehicle operated by the plaintiff.    The
defendant had a blood alcohol content of  0.22% by weight by
volume, exceeding the  .10% reading then establishing a
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presumption of intoxication.                                           236 Va. at  270-71,  374 S.E.2d at
3.
Building on Baker v. Marcus, the Court stated "that a
conscious disregard of the rights of others" necessary to
support punitive damages may be proved by objective facts.    "The
objective fact that the defendant  .  .  . voluntarily consumed
enough intoxicants to produce a reading of  0.22% blood alcohol
content, causing him to drive as he did on the night in
question, provides sufficient proof of his conscious disregard
of the rights of others."    Booth,  236 Va. at  273,  374 S.E.2d at
3.
Concluding, the Court stated:    "We do not intend by this
decision to indicate a lessening of this Court's general
reluctance to allow punitive damages in run-of-the-mill personal
injury cases.    We merely hold that, upon the egregious set of
facts presented in this case, the plaintiff is entitled to have
a jury consider her claim of punitive damages."    Id.
In Hack v. Nester,  241 Va.  499,  404 S.E.2d  42  (1991),
reversing part of a trial court's judgment, we held that the
evidence failed to establish "the conscious disregard for  [the
plaintiff's] safety necessary to sustain an award of punitive
damages."                                                              241 Va. at  507,  404 S.E.2d at  45.    In that case, the
defendant consumed most of a pitcher of beer shortly before the
accident and had two prior drunk driving convictions.    He
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operated a vehicle at night without a left headlight and while
suffering from night blindness.    His vehicle collided head-on
with the plaintiff's vehicle on a curve while on the plaintiff's
side of the highway.
In Puent v. Dickens,  245 Va.  217,  427 S.E.2d  340  (1993),
the Court held the evidence was insufficient to permit an award
of punitive damages.    There, an intoxicated defendant rear-ended
at night a stopped vehicle occupied by the plaintiff.    We said
that a jury could have found defendant was travelling "very
fast" just prior to the collision, that there was no indication
he applied his brakes before impact, and "that he attempted to
leave the scene of the collision."                                     245 Va. at  220,  427 S.E.2d
at  342.    The Court stated:    "[T]hese combined factors are
insufficient to justify a finding of the wanton negligence
necessary for an award of punitive damages."    Id.
Finally, in Huffman v. Love,  245 Va.  311,  427 S.E.2d  357
(1993), the Court held the evidence was sufficient to create a
jury issue on punitive damages.    In that case, an intoxicated
defendant drove his vehicle into an oncoming lane of traffic and
sideswiped a car operated by the plaintiff.    Defendant had
caused an earlier collision, immediately prior to the accident
in question, when he rear-ended another vehicle.
At the time of the accident sued upon, the defendant was
driving  25 miles per hour in a  15 mile per hour zone.    He failed
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to stop at the scene, but continued to drive for three miles.
When he was stopped, he could not talk, walk, or stand without
assistance.    His blood alcohol level was  0.32%.    Prior to the
incident, he had been convicted twice for drunk driving.                  245
Va. at  313,  427 S.E.2d at  359.    See Webb v. Rivers,  256 Va.  460,
507 S.E.2d  360  (1998)  (jury issue presented on punitive damages
when defendant drove through a red light at  90 m.p.h. in  25
m.p.h. speed zone with  .21% blood alcohol level and was so drunk
he did not know where he was or the time of night).
In the present case, considering defendant's conduct in its
entirety, we hold that, like in Baker, Hack, and Puent,
defendant's behavior was not so willful or wanton as to show a
conscious disregard for the rights of others.
Clearly, the defendant's actions, involving violation of
traffic laws and rules of the road, demonstrated a disregard of
prudence to the level that the safety of others was completely
neglected.    But this conduct amounts to gross negligence, which
shocks fair-minded people; it is less than willful recklessness.
See Harris v. Harman,  253 Va. at  340,  486 S.E.2d at  101.    The
required "actual or constructive consciousness that injury will
result from the act done or omitted," Alfonso,  257 Va. at  545,
514 S.E.2d at  618, is lacking in the proof.
At the most from the plaintiffs' standpoint, the defendant
did not keep a proper lookout for vehicles nearly stopped ahead
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of him, he did not keep his vehicle under proper control, he
probably was intoxicated to some extent, and he feloniously left
the scene of the accident in violation of Code  §  46.2-894.
There is no evidence that defendant exceeded the speed limit or
a reasonable speed under the circumstances.    He was driving on
his proper side of the street, apparently operating a properly
functioning vehicle.    In sum, the defendant's behavior was not
the "egregious" conduct spoken of in our cases.
The plaintiffs dwell on the contention that this is "a case
of felony hit-and-run which increased the plaintiffs' damages."
Continuing, they argue that "Mrs. Isascs was caused to be
fearful and felt scared and abandoned, and both were greatly
inconvenienced.    The defendant intentionally disregarded the
plaintiffs' rights to get the appropriate information from the
defendant, to have a proper investigation of the accident, to
have criminal and civil liabilities addressed under our rule of
law, to receive timely medical care and assistance, and to avoid
the annoyance and outrage any injured plaintiff would feel from
the abandonment and flight of the defendant responsible for the
accident and injury."
This contention overlooks the settled principle that
punitive damages "are something in addition to full
compensation, and something not given as plaintiff's due."
Baker v. Marcus,  201 Va. at  909,  114 S.E.2d at  620.    In other
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words, punitive damages are allowed not so much as compensation
for a plaintiff's loss as to warn others.    Id.    Indemnity for a
plaintiff's losses is the function of compensatory, not
punitive, damages.
Consequently, we conclude that the trial court erred in
permitting recovery of punitive damages in these actions.
Therefore, affirming the judgment below for compensatory
damages, we will reverse that portion of the judgment which
provides for recovery of punitive damages, and final judgment
will be entered here for the defendant on that issue.
Reversed and final judgment.
SENIOR JUSTICE CARRICO, with whom Justice Lemons joins,
dissenting.
I would affirm the award of punitive damages in this case.
I acknowledge that punitive damages may be awarded only when
conduct is so willful and wanton as to evince a conscious
disregard of the rights of others.    This raises an interesting
question:    Was John Doe unconscious when he fled the scene of
the accident in this case?    To ask the question is to answer it;
of course John Doe was not unconscious.
Rather, with full knowledge that his conduct had caused
personal injury, John Doe deliberately and feloniously fled the
scene without, as Code  §  46.2-894 requires, rendering reasonable
assistance to the person injured and providing his name,
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address, driver's license number, and vehicle registration
number forthwith to the driver of the vehicle he struck.
Additionally, as the majority recites, John Doe told Mr. Isaacs
that he would come back to Mrs. Isaacs and their automobile
after he brought his own car back to the scene.    Relying upon
this representation, Mr. Isaacs went to find a telephone to
summons emergency assistance.    Contrary to his representation,
John Doe did not return and he left an injured victim "abandoned
and alone and scared" in the car at "the far side of the
intersection in the middle."
If this is not conduct so willful and wanton as to evince a
conscious disregard of the rights of others, it is difficult to
discern what is.    Indeed, I think leaving the scene of an
accident involving personal injury without rendering assistance
to the injured person, and doing the other things the law
requires, is about as reprehensible as conduct on the highway
can get, and it should not go unpunished.    Yet, in this case,
John Doe has subverted the criminal process by doing the very
things the law prohibits  - fleeing the scene, withholding
information about his identity, and leaving no evidence of where
he can be found.    It is not only appropriate but also necessary,
therefore, to invoke the civil process and impose punitive
damages upon John Doe as punishment for his conduct and as a
lesson to others to refrain from similar behavior.    As this
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Court said in Baker v. Marcus,  201 Va.  905,  114 S.E.2d  617
(1960):
"Exemplary damages are something in addition to full
compensation, and something not given as plaintiff's due,
but for the protection of the public, as a punishment to
defendant, and as a warning and example to deter him and
others from committing like offenses."
Id. at  909,  114 S.E.2d at  620  (quoting Zedd v. Jenkins,  194 Va.
704,  707,  74 S.E.2d  791,  793  (1953)).
For these reasons, I respectfully dissent.
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