Present: All the Justices 

KARL SCHLIMMER 

v. Record No. 031773 OPINION BY JUSTICE CYNTHIA D. KINSER 

 June 10, 2004 

POVERTY HUNT CLUB, ET AL. 

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY 

Honorable James A. Luke, Judge 

Karl R. Schlimmer (“Schlimmer”), and his parents, 

Herman and Doreen Schlimmer, filed a second amended motion 

for judgment against Nolen L. Cofield (“Cofield”), Poverty 

Hunt Club (“Hunt Club”), and 12 other defendants for 

personal injuries Schlimmer sustained in a hunting accident 

when Cofield shot him. A jury returned a verdict in favor 

of Cofield and the Hunt Club (collectively, “the 

Defendants”).1 After considering Schlimmer’s motion to set 

aside the jury verdict, the circuit court affirmed the 

verdict and entered judgment in favor of Cofield and the 

Hunt Club. 

Schlimmer appealed to this Court claiming that the 

circuit court erred by refusing to find Cofield negligent 

as a matter of law; by not granting a negligence per se 

instruction; by refusing to set aside the verdict on the 

 1

 On brief, the appellees contend that the parents, as 

well as all the defendants except Cofield and the Hunt 

Club, were nonsuited from the case. That fact is not clear 

in the record. Nevertheless, Cofield and the Hunt Club 

were the only defendants before the jury. 
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basis that there was insufficient evidence to sustain a 

defense of contributory negligence or to find that 

Schlimmer’s alleged contributory negligence was a proximate 

cause of the accident; and by refusing to strike the 

defense of contributory negligence. Because we conclude 

that Schlimmer was entitled to a negligence per se 

instruction, we will reverse the circuit court’s judgment. 

RELEVANT FACTS 

 Schlimmer’s father had been a member of the Hunt Club 

for several years. Schlimmer, who was 14 years old at the 

time of the accident, had been accompanying his father 

since he was 11 years old as a guest on hunting expeditions 

on property leased to the Hunt Club. In approximately 1995 

or 1996, Schlimmer and his father attended a hunter safety 

education class together. 

On the morning of November 23, 1996, Schlimmer, his 

father, Cofield, and other members of the Hunt Club 

gathered for the second hunt of the day. The members 

decided in which area of the property to conduct the hunt 

and assigned hunting stands to the hunters. Schlimmer and 

his father were assigned a stand known as “Fletcher’s Old 

Stand.” They were told that someone would meet them at the 

“loading dock” and show them where their assigned stand was 

located. However, no one ever met them there. After 
3

waiting about 10 to 15 minutes, Schlimmer’s father decided 

that he and his son could find the stand by themselves, and 

they proceeded to walk into the “brush.” They soon found a 

stand familiar to Schlimmer’s father and stopped there 

instead of proceeding to their assigned stand. Schlimmer 

sat down on a bucket and his father sat on a log. 

After a few minutes, the two saw Cofield walk by 

within 25 to 30 yards of where Schlimmer and his father 

were sitting. Neither of them said anything to Cofield so 

as to make him aware of their presence. Schlimmer’s father 

admitted that Cofield probably did not see either him or 

his son as Cofield walked past them. Schlimmer then 

questioned his father about whether they were in “a good 

place” and asked if they should move to a different 

location. Schlimmer testified, “In my mind I was in a safe 

place but not the right place.” They discussed the 

situation and had decided they should move to another 

location when Schlimmer was shot by Cofield. 

Up until that moment, Schlimmer had sat with his back 

against a tree that had a trunk of six to eight inches in 

diameter. He had not stood up or moved except to look 

around nor had his father. Schlimmer was wearing a blaze 

orange hat and a camouflage jacket. 
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A game warden who investigated the accident testified 

that it would have been “virtually impossible” to see 

Schlimmer from the tree stand in which Cofield was 

situated. Pictures taken by the game warden showed that 

the area in which Schlimmer and his father had stopped 

contained numerous trees and brush. The game warden 

measured a distance of 67 yards between Cofield’s tree 

stand and the spot where Schlimmer was sitting. 

In both an oral and written statement given to the 

game warden just after the shooting accident occurred, 

Cofield stated that he had seen one deer; and then about 20 

minutes later, he saw something moving, thought it was a 

deer, and shot. Cofield’s testimony at trial, however, was 

different. He stated that, after he climbed up a ladder to 

his tree stand and loaded his gun, he saw two deer pass but 

was not able to get off a shot at them. Cofield then saw 

“a buck coming to [his] far left.” He shot at the buck but 

hit Schlimmer. Cofield testified that, at the time he 

fired his shotgun, he did not know that Schlimmer and his 

father “were where they were.” “No one was supposed to be 

there,” Cofield stated. 

The game warden charged Cofield with the reckless 

handling of a firearm in violation of Code § 18.2-56.1(A). 

That statute makes it “unlawful for any person to handle 
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recklessly any firearm so as to endanger the life, limb or 

property of any person.” Code § 18.2-56.1(A). Cofield 

pled guilty to the charge. 

ANALYSIS 

 The dispositive issue in this appeal concerns the 

circuit court’s refusal to instruct the jury on negligence 

per se. The circuit court stated the following reasons for 

its refusal to do so: “[Cofield] could have been convicted 

of reckless handling of a firearm if nobody had been hit. 

If he hadn’t touched the plaintiff, the handling of the 

firearm was reckless. And I think we’ve got to rely on the 

negligence to get to the verdict on this.” 

Schlimmer argues he was entitled to an instruction on 

negligence per se because Cofield recklessly handled a 

firearm in violation of Code § 18.2-56.1(A). The 

Defendants, however, contend that Cofield’s conviction for 

violating that statute was not “conclusive evidence of 

negligence in a subsequent civil action.” They also argue 

that the inconsistencies in the evidence about how Cofield 

came to fire his shotgun did not justify a negligence per 

se instruction. 

A litigant is entitled to jury instructions supporting 

his or her theory of the case if sufficient evidence is 

introduced to support that theory and if the instructions 
6

correctly state the law. Price v. Taylor, 251 Va. 82, 85, 

466 S.E.2d 87, 88 (1996); Bowers v. May, 233 Va. 411, 413-

14, 357 S.E.2d 29, 30 (1987); Hodnett v. Friend, 232 Va. 

447, 452, 352 S.E.2d 338, 341 (1987); H. W. Miller Trucking 

Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 439-40 

(1962). The evidence presented in support of a particular 

instruction “must amount to more than a scintilla.” Justus 

v. Commonwealth, 222 Va. 667, 678, 283 S.E.2d 905, 911 

(1981); Gibson v. Commonwealth, 216 Va. 412, 417, 219 

S.E.2d 845, 849 (1975). “It is immaterial that the jury 

could have reached contrary conclusions. If a proffered 

instruction finds any support in credible evidence, its 

refusal is reversible error.” McClung v. Commonwealth, 215 

Va. 654, 657, 212 S.E.2d 290, 293 (1975). These principles 

are likewise true with regard to instructions pertaining to 

primary negligence. See Gravitt v. Ward, 258 Va. 330, 335, 

518 S.E.2d 631, 634 (1999); Yeary v. Holbrook, 171 Va. 266, 

287-88, 198 S.E.2d 441, 451 (1938). 

The doctrine of negligence per se represents the 

adoption of “the requirements of a legislative enactment as 

the standard of conduct of a reasonable [person].” Butler 

v. Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122 (1967). 

When applicable, the violation of a statute or municipal 

ordinance adopted for public safety constitutes negligence 
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because the violation is the failure to abide by a 

particular standard of care prescribed by a legislative 

body. Moore v. Virginia Transit Co., 188 Va. 493, 497-98, 

50 S.E.2d 268, 271 (1948). A party relying on negligence 

per se does not need to establish common law negligence 

provided the proponent of the doctrine produces evidence 

supporting a determination that the opposing party violated 

a statute enacted for public safety, that the proponent 

belongs to the class of persons for whose benefit the 

statute was enacted and the harm suffered was of the type 

against which the statute was designed to protect, and that 

the statutory violation was a proximate cause of the 

injury. Halterman v. Radisson Hotel Corp., 259 Va. 171, 

176-77, 523 S.E.2d 823, 825 (2000); Virginia Elec. & Power 

Co. v. Savoy Constr. Co., 224 Va. 36, 45, 294 S.E.2d 811, 

817 (1982). 

The first two elements of negligence per se, whether 

the statute was enacted for public safety and whether the 

injured party was a member of the class of people for whose 

benefit the statute was enacted and suffered an injury of 

the type against which the statute protects, are issues of 

law to be decided by a trial court. See Virginia Elec., 

224 Va. at 45, 294 S.E.2d at 817. The third element, 

whether the statutory violation was a proximate cause of 
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the injury, is generally a factual issue to be decided by 

the trier of fact. Thomas v. Settle, 247 Va. 15, 20, 439 

S.E.2d 360, 363 (1994); Smith v. New Dixie Lines, Inc., 201 

Va. 466, 470, 111 S.E.2d 434, 437 (1959). Similarly, if 

the violation of the statute is in dispute, that issue is 

also for the trier of fact. Kimberlin v. PM Transp., Inc., 

264 Va. 261, 268, 563 S.E.2d 665, 668 (2002). 

In this case, Schlimmer established that Cofield 

violated a statute that was enacted for public safety and 

that protects a class of people including hunters such as 

Schlimmer. Cf. Bailey v. Commonwealth, 5 Va. App. 331, 

334, 362 S.E.2d 750, 751 (1987) (the provisions of Code 

§ 18.2-56.1(A) are not limited to hunters). He further 

produced sufficient evidence to show that the harm suffered 

“was of the type against which the statute was designed to 

protect,” Halterman, 259 Va. at 176, 523 S.E.2d at 825, and 

that his injury was caused by the violation. When an 

injured person is a member of the class for whose benefit a 

particular statute was enacted, violation of that statute 

constitutes negligence per se and, “if such negligence is a 

proximate or efficiently contributing cause of an injury, 

it will support a recovery for damages for such injury.” 

White v. Gore, 201 Va. 239, 242, 110 S.E.2d 228, 231 

(1959). Accordingly, the circuit court erred in refusing 
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to instruct the jury on the doctrine of negligence per se. 

See McClung, 215 Va. at 657, 212 S.E.2d at 293. 

Contrary to the Defendants’ argument, the failure to 

instruct on negligence per se was not harmless error. 

Based on the record before us, we cannot determine whether 

the jury found for the Defendants due to lack of primary 

negligence or due to Schlimmer’s contributory negligence. 

Thus, we cannot say that the error in refusing to instruct 

on negligence per se was harmless. See Caplan v. Bogard, 

264 Va. 219, 229, 563 S.E.2d 719, 724 (2002); Ring v. 

Poelman, 240 Va. 323, 328, 397 S.E.2d 824, 827 (1990). 

CONCLUSION 

 For these reasons, we will reverse the judgment of the 

circuit court and remand this case for a new trial.2

Reversed and remanded.

 2

 In light of our decision, it is not necessary to 

address Schlimmer’s remaining assignments of error. 

We also express no view on whether the two 

instructions on negligence per se proffered by Schlimmer 

were correct statements of law. The Defendants did not 

argue otherwise to the circuit court or on appeal.