Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Koontz, JJ., and Whiting, Senior Justice 

ROBIN R. YOUNG, ET AL. 

v. Record No. 961032 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 February 28, 1997 

MARGARET A. LAMBERT, 

ADMINISTRATRIX, ETC. 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Richard C. Pattisall, Judge 

 In this appeal, we consider whether the trial court erred in 

instructing the jury on assumption of the risk. 

 On October 25, 1991, Phillip M. Lambert, Lisa Jordan Jones, 

Tammy Rutherford, and Christopher Reyes were killed when the 

vehicle owned by Rutherford and operated by Lambert veered off a 

road and collided with a tree. Robin R. and Robert R. Young, 

administrators of Rutherford's estate (the plaintiff), brought 

this wrongful death action against Margaret A. Lambert, the 

administratrix of Phillip Lambert's estate (the defendant). 

 The evidence at trial showed that Rutherford drove Jones to 

Reyes' house in Roanoke shortly before 11:00 p.m. on October 24, 

1991. At this location, Reyes and Lambert climbed into the back 

seat of Rutherford's vehicle. Rutherford was driving the vehicle 

when the group departed from Reyes' house. 

 No one saw the four individuals alive after they left 

Roanoke. The parties stipulated that the four remained together 

from the time they were seen departing in Rutherford's vehicle 

until the time of the accident. 

 The collision occurred at approximately 2:40 a.m. on Route 

311 in Craig County, about 20 to 25 miles from Roanoke. Route 
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311 is a road that winds through hilly terrain. Near the 

accident location, the northbound lane of Route 311 descends into 

a sharp left-hand curve. Photographs introduced at trial showed 

that the driver of Rutherford's vehicle failed to negotiate this 

curve, and that the vehicle proceeded off the shoulder of the 

roadway and struck a tree. 

 All four individuals died as a result of the impact. The 

police found Lambert's body in the driver's seat, Jones' body in 

the front passenger seat, Reyes' body in the left rear seat, and 

Rutherford's body in the right rear seat. Blood samples taken 

from the bodies revealed that Lambert had a blood-alcohol content 

(BAC) of .12, Rutherford had a BAC of .10, Jones had a BAC of 

.13, and Reyes had a BAC of .17. 

 Four witnesses testified that they did not observe Lambert 

consume any alcoholic beverages before he left Roanoke in 

Rutherford's vehicle. Two of these witnesses, Daniel Montgomery 

and Theresa Harmon, observed Lambert immediately before he 

entered Rutherford's vehicle and testified that he did not appear 

intoxicated at that time. 

 Theresa Harmon also testified that neither Lambert nor Reyes 

was carrying any liquor, or bag or container that might have 

contained alcohol, when they entered Rutherford's vehicle. 

Another witness, John Franklin, observed Rutherford and Jones 

each drink one beer in his apartment at about 10:00 p.m., but 

testified that neither appeared intoxicated when they left about 
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30 minutes later. 

 The parties stipulated that Rutherford successfully 

completed a high school course in driver's education in 1985. 

The course included a two-week unit on the hazards of driving 

under the influence of alcohol, and students were required to 

pass a written exam in this unit to receive their certificate. 

 Both parties presented testimony from forensic toxicologists 

regarding the effect that a BAC of .12 would have on a person's 

mental and physical condition. Dr. Dale Carpenter, a 

toxicologist employed by the Commonwealth's Division of Forensic 

Science, stated that it is not possible to identify any specific 

symptoms that a person having a certain BAC would exhibit. 

However, he testified that, in general, a person with Lambert's 

BAC would suffer impairment of judgment, inhibitions, and fine 

and gross motor skills. Dr. Carpenter further stated that all 

these factors could have affected Lambert's driving ability. 

 Dr. Robert Blanke, another toxicologist, testified that 

outward signs of intoxication "vary somewhat" in individuals, 

depending on their experience as drinkers, their age, and any 

disease they might have. He stated that, since he had not known 

Lambert, he could not state whether Lambert was able to conceal 

signs of intoxication to prevent notice by others. 

 Dr. Blanke stated, however, that a person of normal 

intelligence and experience would recognize an individual with a 

BAC of .12 as being drunk. Dr. Blanke further testified that the 
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probability of such an individual appearing "obviously drunk" to 

an observer would increase if the observer had seen that 

individual consume alcohol, or if the observer had completed a 

driver education course. 

 At the close of the defendant's evidence, the plaintiff 

moved to strike the defendant's affirmative defenses of 

contributory negligence and assumption of the risk. The trial 

court struck the contributory negligence defense, but instructed 

the jury on assumption of the risk. 

 The jury returned a verdict in favor of the defendant. The 

plaintiff moved to set aside the verdict on the ground that there 

was no evidence from which the jury could have concluded that 

Rutherford assumed the risk of riding with an intoxicated driver. 

 The trial court denied the plaintiff's motion and entered final 

judgment in accordance with the jury verdict. 

 On appeal, the plaintiff contends that the defendant failed 

to introduce any evidence showing that Rutherford knew that 

Lambert's ability to drive was likely to be impaired, or that she 

appreciated the nature and extent of the risk in remaining in the 

vehicle while Lambert was driving. The plaintiff asserts that 

the evidence showed nothing more than Lambert's BAC, which 

provided an insufficient basis for an assumption of the risk 

instruction. 

 In response, the defendant argues that the evidence was 

sufficient to support a jury instruction on assumption of the 
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risk. The defendant notes that Lambert was "sober" and "empty 

handed" at 11:00 p.m. when he joined Rutherford, and that Lambert 

and Rutherford remained in each other's presence for the rest of 

the evening. Thus, the defendant contends, Rutherford had to be 

aware that Lambert was drinking heavily over a short period of 

time, and that his ability to drive was likely to be impaired. 

We disagree with the defendant. 

 Assumption of the risk is a defense that is based primarily 

on a subjective standard of "what the particular plaintiff in 

fact sees, knows, understands and appreciates." Amusement Slides 

v. Lehmann, 217 Va. 815, 818-19, 232 S.E.2d 803, 805 (1977) 

(citation omitted). The essence of this defense is 

venturousness, which requires proof that the plaintiff 

voluntarily incurred the risk and fully appreciated its nature. 

Id. at 819, 232 S.E.2d at 805; Buffalo Shook Co. v. Barksdale, 

206 Va. 45, 48, 141 S.E.2d 738, 741 (1965). Thus, assumption of 

the risk requires intentional exposure to a known danger. Arndt 

v. Russillo, 231 Va. 328, 332, 343 S.E.2d 84, 87 (1986). The 

burden of proving assumption of the risk rests with the 

defendant. Id. at 334, 343 S.E.2d at 88. 

 Generally, the issue whether a plaintiff has assumed a risk 

is a question of fact to be decided by the jury. Budzinski v. 

Harris, 213 Va. 107, 111, 189 S.E.2d 372, 376 (1972). However, 

before the issue of assumption of the risk may be submitted to 

the jury, there must be sufficient evidence that the plaintiff 
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had knowledge of the existing danger and willingly incurred its 

risk. See Philip Morris, Inc. v. Emerson, 235 Va. 380, 403, 368 

S.E.2d 268, 280 (1988). When the evidence would require the jury 

to speculate to reach a verdict for the defendant on this ground, 

an assumption of the risk instruction will not be granted. See

Tomlin v. Worley, 206 Va. 344, 351, 143 S.E.2d 866, 872 (1965). 

 An individual has assumed the risk of riding with an 

intoxicated driver when she (1) voluntarily elects to ride with a 

driver whom she knows has consumed alcohol to such an extent that 

the driver's ability to drive is impaired or is likely to be 

impaired, and (2) fully appreciates the nature and extent of the 

risk involved in riding with the driver. Budzinski, 213 Va. at 

110, 189 S.E.2d at 375. Applying this standard, we conclude that 

as a matter of law, the evidence fails to show that Rutherford 

assumed the risk of riding with Lambert in his intoxicated 

condition. 

 Under the evidence, the jury was required to speculate in 

order to find that Rutherford knew Lambert had consumed alcohol 

to such an extent that his ability to drive was likely to be 

impaired. Although Rutherford and Lambert remained in each 

other's presence between 11:00 p.m. and the time of the accident, 

there is no evidence that Rutherford saw Lambert drinking any 

alcoholic beverages, or observed that his speech, muscular 

movement, behavior, or driving conduct were affected by the 

consumption of alcohol. In order to find that Rutherford 
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voluntarily assumed a known risk, the jury was required to 

speculate that Rutherford was awake while Lambert was drinking, 

that she was able to observe all his actions, that her attention 

was not diverted during the time that he consumed the alcohol, 

and that she did not attempt to get out of the car or to dissuade 

him from driving. 

 The fact that Lambert had a BAC of .12 shows only that he 

had consumed a certain amount of alcohol. This fact does not 

show subjective knowledge by Rutherford that Lambert had consumed 

any amount of alcohol, or that his driving ability was likely to 

be impaired. Further, the record contains no evidence concerning 

the manner and degree to which Lambert manifested the effects of 

alcohol consumption. Although Dr. Blanke testified that a person 

of normal experience and intelligence would recognize an 

individual having a BAC of .12 as being drunk, he had no 

knowledge, and there was no evidence, of what Rutherford saw, 

knew, understood, or appreciated. See Amusement Slides, 217 Va. 

at 818-19, 232 S.E.2d at 805. 

 The fact that Rutherford had completed a course in driver's 

education also does not constitute evidence of her subjective 

knowledge of Lambert's condition that evening. As stated above, 

the record does not contain any evidence regarding Lambert's 

outward manifestations of the effects of alcohol consumption, or 

regarding Rutherford's observations and understanding of 

Lambert's condition. Absent such evidence that Rutherford knew 
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Lambert's ability to drive was likely to be impaired due to his 

consumption of alcohol, the record is insufficient to support a 

jury instruction on assumption of the risk. 

 For these reasons, we will reverse the trial court's 

judgment and remand the case for a new trial. 

Reversed and remanded.