Present: Carrico, C.J., Compton, Stephenson, Whiting,1

 Lacy, 

Hassell, and Keenan, JJ. 

MEGAN D. CLOHESSY 

v. Record No. 942035 OPINION BY JUSTICE HENRY H. WHITING 

 September 15, 1995 

LYNN M. WEILER 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Robert B. Cromwell, Jr., Judge 

 This appeal deals with issues of a motor vehicle driver's 

alleged willful and wanton negligence and a pedestrian's alleged 

contributory negligence. 

 The defendant driver appeals a judgment confirming a jury's 

verdict in the plaintiff pedestrian's favor for $85,000. 

Consistent with familiar appellate principles, we state the 

evidence in the light most favorable to the pedestrian, who 

prevailed before the jury. 

 On October 16, 1992, around 10:00 p.m., after attending a 

football game at Cox High School in Virginia Beach, Lynn M. 

Weiler, the plaintiff, was walking home with her husband, Gary 

Weiler, in a northerly direction on Tether Keep, a street in a 

Virginia Beach residential subdivision. Since there were no 

sidewalks on Tether Keep, and debris had been left on the west 

side of the street on previous occasions when they had walked on 

Tether Keep, the Weilers walked on the east side of the street 

 

 1Justice Whiting prepared the opinion in this case prior to 

the effective date of his retirement on August 12, 1995, and the 

Court subsequently adopted the opinion. 
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with their backs toward approaching traffic rather than on the 

west side facing traffic, as required by Code § §46.2-928.2

. Mr. 

Weiler was walking almost directly in the gutter, next to the 

concrete curb. According to Mr. Weiler, his wife was walking to 

his left "directly shoulder to shoulder next to [him]." 

 The speed limit on Tether Keep was 25 miles per hour and 

this flat, relatively straight asphalt street was well-lit by 

street lights in the vicinity of the accident. It was a clear 

night. Mr. Weiler was wearing a yellow jacket and the plaintiff 

was wearing a light-gray sweat shirt. 

 Megan Dawn Clohessy, the defendant, a 16-year-old student at 

Cox High School who had driven her car in a parade at the 

football game, stopped the vehicle on Tether Keep just before the 

accident to remove balloons that had been attached to the 

antenna. When the defendant stopped, she turned off the car's 

engine and headlights. Upon restarting the engine, the defendant 

noticed that the windshield had become foggy from a mist rising 

from the road surface. She turned on her windshield wipers and 

defroster in an attempt to clear the windshield. However, the 

 2As pertinent, Code 46.2-928 provides that "[p]edestrians 

shall not use the roadways for travel, except when necessary to 

do so because of the absence of sidewalks [and] [i]f they walk on 

the hard surface, . . . they shall keep to the extreme left side 

or edge thereof." 
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defendant did not turn on the car's headlights again, and drove 

down the street at a speed of approximately 35 miles per hour 

with a fogged windshield. 

 The defendant and a teenaged boy who witnessed the accident 

estimated that the plaintiff was walking in the street, three to 

four feet from the curb. The witness was one of several boys, 

some of whom were approximately 25 feet ahead of the Weilers, 

also walking from the football game on the east side of Tether 

Keep. There were no other pedestrians on Tether Keep at the time 

of the accident. 

 Although the defendant testified that nothing obstructed her 

view, she did not see the Weilers walking in the street until her 

car was about four feet from the plaintiff. The defendant 

swerved her car to her left, but was unable to avoid striking the 

plaintiff. 

 The trial court submitted the issue of the defendant's 

willful and wanton negligence to the jury. First, we consider 

the defendant's contention that this was error. The following is 

the standard to be applied in resolving this issue: 

 Willful and wanton negligence is acting 

consciously in disregard of another person's rights or 

acting with reckless indifference to the consequences, 

with the defendant aware, from his knowledge of 

existing circumstances and conditions, that his conduct 

probably would cause injury to another. 

Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 (1984). 

 The defendant contends the evidence in this case is such 

that no reasonable person could conclude that her conduct was 
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sufficiently egregious to meet the Griffin standard of willful 

and wanton negligence. Hence, the defendant concludes that the 

court erred in submitting this issue to the jury. 

 On the other hand, citing the defendant's negligence in 

operating "her vehicle without headlights at night in a 

residential area where she knew pedestrians were walking [and in 

driving] her automobile in excess of the posted speed limit with 

fogged windows and obscured vision," the plaintiff maintains that 

the cumulative effect of those acts raised a factual issue of the 

defendant's willful and wanton negligence under the Griffin

standard. We disagree with the plaintiff. The facts in this 

case do not indicate that the defendant's conduct could be 

reasonably considered as anything more culpable than ordinary 

negligence. 

 On brief and in oral argument, the plaintiff's counsel 

claimed that the football game had just ended, implying that 

numerous pedestrians were walking home in the streets of this 

subdivision. However, Mr. Weiler testified that: 

 Even though the game was over, because Todd [the 

Weilers' son] was playing, we typically would wait 

until after the game and see him, so almost all of the 

game traffic had already left and we were walking down 

that street, and it was a very quiet evening, only one 

car had passed, as I said. 

And the plaintiff testified that there was no one else walking on 

the roadway but the boys ahead of the Weilers. Thus, we find no 

factual predicate in the record to support the plaintiff's 

contention that the defendant "knew pedestrians were walking" in 
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the residential area, particularly pedestrians walking on the 

wrong side of the street with their backs toward approaching 

traffic in violation of Code § 46.2-928. 

 Hence, the evidence in this case does not support a finding 

that the defendant had prior knowledge of specific conditions 

that would likely cause injury to others. Compare Huffman v. 

Love, 245 Va. 311, 315, 427 S.E.2d 357, 360 (1993) (highly 

intoxicated driver's knowledge that continued driving was 

dangerous shown in part by earlier collision shortly before 

subject collision) and Booth v. Robertson, 236 Va. 269, 270, 272-

73, 374 S.E.2d 1, 1, 2-3 (1988) (highly intoxicated driver's 

knowledge that driving wrong way on interstate highway was 

dangerous shown in part by near collision with another vehicle 

shortly before subject collision) with Hack v. Nester, 241 Va. 

499, 506-07, 404 S.E.2d 42, 45 (1991) (no prior accident or 

warning of dangerous driving to intoxicated driver before subject 

collision). And this case has none of the aspects of willful and 

wanton conduct shown in part by (1) the intoxications and prior 

incidents giving notice of danger in Huffman and Booth, (2) the 

willfulness in Friedman v. Jordan, 166 Va. 65, 68, 184 S.E. 186, 

187 (1936) (motorist's intentional collision with bicyclist), or 

(3) the grossly excessive speed and erratic driving evident in 

Mayo v. Commonwealth, 218 Va. 644, 648-49, 238 S.E.2d 831, 831-33 

(1977) (driving about twice posted 35 mile-per-hour speed limit 

in residential area resulting in involuntary manslaughter 
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conviction). 

 We have said that "each [of these cases] must be determined 

`on its own set of facts.'" Huffman, 245 Va. at 315, 427 S.E.2d 

at 360. In our opinion, while the facts and circumstances of 

this case raise factual issues of the defendant's negligent 

operation of her car, they are insufficient to support a finding 

that this negligence was so willful, wanton, and reckless as to 

show a conscious disregard of the rights of others. Accordingly, 

the court erred in submitting that issue to the jury. 

 Next, we consider the plaintiff's contention that the 

defendant must show that the jury's verdict was based on a 

finding of willful and wanton negligence rather than ordinary 

negligence in order for the error to be prejudicial. However, a 

substantial error such as this one "is presumed to be prejudicial 

unless it plainly appears that it could not have affected the 

result." Spence v. Miller, 197 Va. 477, 482, 90 S.E.2d 131, 135 

(1955); see also Dunn v. Strong, 216 Va. 205, 210, 217 S.E.2d 

831, 834 (1975); Kimball & Fink v. Borden, 95 Va. 203, 207, 28 

S.E. 207, 207 (1897). Thus, the defendant has no burden to show 

on which issue the jury returned its verdict. 

 Nor can we say that submitting the issue of willful and 

wanton negligence to the jury "could not have affected the 

result" because we are unable to determine on what issue the jury 

returned a verdict for the plaintiff. If an issue is erroneously 

submitted to a jury, we presume that the jury decided the case 
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upon that issue. Green v. Ruffin, 141 Va. 628, 641, 125 S.E. 

742, 746 (1924); see also Gardner v. Phipps, 250 Va. ___, ___ 

S.E.2d ___ (1995)(this day decided); Ring v. Poelman, 240 Va. 

323, 328, 397 S.E.2d 824, 827 (1990). And if the verdict was 

based on the defendant's willful and wanton negligence, we 

presume that the jury did not consider the issue of the 

plaintiff's alleged contributory negligence, because of the trial 

court's instruction that "[a] defendant who is guilty of willful 

and wanton negligence cannot rely upon contributory negligence as 

a defense." Since the defendant was entitled to have the jury 

consider the issue of the plaintiff's contributory negligence as 

a bar to her ordinary negligence claim, we conclude that the 

defendant was prejudiced by the instructions on willful and 

wanton negligence and that the case will have to be remanded for 

a new trial. 

 Because the issue may arise upon a new trial, we finally 

consider the defendant's contention that the court erred in 

granting Instruction 16 on the issue of the plaintiff's 

contributory negligence.3

 Instruction 16 provided: 

 When the negligence of the defendant is the 

proximate cause of the accident and that of the 

plaintiff the remote cause, the plaintiff may recover 

 

 3On oral argument, the defendant abandoned her contention 

that the court erred in failing to instruct the jury that the 

plaintiff was guilty of contributory negligence as a matter of 

law. Hence, we do not consider that issue. 
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notwithstanding the plaintiff's negligence. It is the 

immediate or proximate cause which directly produces 

the accident, injury or damage, not the remote cause 

which may have antecedently contributed to it. 

 The plaintiff argues that Instruction 16 was proper since it 

"was taken directly from the language in Thomas v. Settle, 247 

Va. 15, 20, 439 S.E.2d 360, 363 (1994)." Although Instruction 16 

correctly states the law, it is simply another example of "the 

danger of the indiscriminate use of language from appellate 

opinions in a jury instruction; a danger often referred to in our 

opinions." Blondel v. Hays, 241 Va. 467, 474, 403 S.E.2d 340, 

344 (1991). 

 The language in Instruction 16 was used in Thomas to explain 

why the violation of a statute regulating traffic was not a 

proximate cause of the accident as a matter of law. It was not 

written as a definition or explanation of remote cause. As such, 

"[i]t was appellate language, used to explain a point and not 

intended to be employed in an instruction." National Union Fire 

Ins. Co. of Pittsburgh, Pennsylvania v. Bruce, 208 Va. 595, 601, 

159 S.E.2d 815, 820 (1968). 

 In Bruce, we held that after giving the traditional 

definition of gross negligence in an instruction, the trial court 

should not have further expounded upon gross negligence in 

language that was argumentative, confusing, and misleading to the 

jury. Id. Similarly, in this case, the court correctly defined 

proximate cause in Instruction 15, which provided: 

 A proximate cause of an accident, injury, or 

damage is a cause which in natural and continuous 
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sequence produces the accident, injury, or damage. It 

is a cause without which the accident, injury, or 

damage would not have occurred. 

In its attempt to further explain the concept of proximate cause 

in Instruction 16, the court introduced the principle of remote 

cause and used language that could have confused and misled the 

jury. Since we conclude that Instruction 16 was erroneous and 

prejudicial to the defendant, it should not have been given. 

 Accordingly, we will reverse the judgment and remand the 

case for a new trial. 

Reversed and remanded.