Present: All the Justices 

SIDNEY M. WEBB 

 OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 980014 November 6, 1998 

JASON W. RIVERS 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Randall G. Johnson, Judge 

 In this appeal, we consider whether the trial court erred 

in striking the plaintiff's claim for punitive damages. 

 The plaintiff, Sidney M. Webb, filed his motion for 

judgment against Jason W. Rivers. The plaintiff alleged that 

he was injured in an automobile accident and that his injuries 

were proximately caused by the defendant's "carelessness, 

recklessness and negligence." The plaintiff sought 

compensatory and punitive damages. 

 The plaintiff produced the following evidence at a jury 

trial. On May 3, 1995, the plaintiff was operating a 

Chevrolet Blazer, and his wife and young daughter were 

passengers. As the plaintiff, who was traveling on Hamilton 

Street in the City of Richmond, drove through the intersection 

of Hamilton and Grove Avenue, he observed a car driven by the 

defendant. The defendant ignored a red light, drove through 

the intersection, and his car collided with the plaintiff's 

vehicle, which rolled over and "came to rest on its roof." 
 Jacqueline Webb, the plaintiff's wife, testified that the 

defendant was driving his car at 90 m.p.h. The legal speed 

limit at the intersection where the accident occurred is 25 

m.p.h. 

 Officer Walter P. Wilhelm, a Richmond police officer who 

responded to the accident, testified that when he arrived at 

the scene, the defendant was "entirely intoxicated sitting 

behind the wheel of a wrecked automobile." The defendant, 

whose car was on Grove Avenue, told Officer Wilhelm that the 

defendant thought he was on the Boulevard, another street in 

Richmond. The defendant also stated that the time was 10:00 

p.m. when it was actually 11:50 p.m. 

 Officer Wilhelm testified that "[i]t was hard to 

understand anything [the defendant] said" and that the 

defendant admitted that he had been drinking alcoholic 

beverages that night. Officer Wilhelm described the defendant 

as "very" drunk and that he had a very strong odor of alcohol 

about his person. Officer Wilhelm testified that the 

defendant was in a stupor because he was so drunk. 

 At 1:39 a.m. on May 4, 1995, about two hours after the 

accident, a breath test indicated that the defendant had a 

blood alcohol level of .21%. The blood alcohol level to 

establish a rebuttable presumption of intoxication in Virginia 

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at that time was .08%. The defendant pled guilty to the 

charge of driving under the influence. 

 The defendant made a motion to strike the plaintiff's 

claim of punitive damages after the plaintiff rested his case. 

The trial court sustained the motion, and the case proceeded 

to a jury which returned a verdict in favor of the plaintiff 

and awarded him $350 in compensatory damages. The trial court 

entered a judgment confirming the jury's verdict. The 

plaintiff appeals, challenging that portion of the trial 

court's judgment which sustained the defendant's motion to 

strike the plaintiff's claim for punitive damages. 

 Code § 8.01-44.5 states in relevant part: 

 "In any action for personal injury or death 

arising from the operation of a motor vehicle . . . 

the finder of fact may, in its discretion, award 

exemplary damages to the plaintiff if the evidence 

proves that the defendant acted with malice toward 

the plaintiff or the defendant's conduct was so 

willful or wanton as to show a conscious disregard 

for the rights of others. 

 "A defendant's conduct shall be deemed 

sufficiently willful or wanton as to show a 

conscious disregard for the rights of others when 

the evidence proves that (i) when the incident 

causing the injury or death occurred the defendant 

had a blood alcohol concentration of 0.15 percent or 

more by weight by volume (ii) at the time the 

defendant began, or during the time he was, drinking 

alcohol, he knew that he was going to operate a 

motor vehicle . . . and (iii) the defendant's 

intoxication was a proximate cause of the injury to 

or death of the plaintiff." 

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 The plaintiff argues that the trial court erred by 

striking his statutory claim for punitive damages because he 

believes that he proved each of the aforementioned statutory 

elements. The defendant argues, however, that the plaintiff 

failed to prove that "at the time the defendant began, or 

during the time he was, drinking alcohol, he knew that he was 

going to operate a motor vehicle . . . ." Id.

 We agree with the defendant. Code § 8.01-44.5 required 

that the plaintiff prove each of the statutory elements 

contained therein. Here, the plaintiff failed to produce any 

evidence that at the time the defendant began drinking 

alcohol, or during the time he was drinking alcohol, the 

defendant knew he was going to operate a motor vehicle. The 

record is simply devoid of such evidence. Therefore, we hold 

that the trial court correctly struck the plaintiff's 

statutory claim for punitive damages. 

 The plaintiff contends that even if he failed to satisfy 

the requirements of Code § 8.01-44.5, he presented sufficient 

evidence to support a common law claim for punitive damages. 

The defendant, relying principally upon Puent v. Dickens, 245 

Va. 217, 427 S.E.2d 340 (1993), responds that the plaintiff 

failed to produce sufficient facts to support a common law 

claim for punitive damages. We disagree with the defendant. 

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 In Puent, Edward W. Dickens, who was operating a pickup 

truck, collided with the rear of a car in which Anne R. Puent 

was a passenger. Puent filed a motion for judgment against 

Dickens, seeking compensatory and punitive damages. According 

to Puent's evidence, which was struck by the trial court, 

Dickens had three drinks from a bottle of whiskey within 60 to 

75 minutes before the truck he was driving collided with the 

car in which Puent was a passenger. 

 The car in which Puent was traveling had stopped at a 

traffic light, and the car's brake and rear lights were lit. 

A witness testified that Dickens was driving very fast and 

that apparently he did not apply his brakes before he collided 

with the Puent car. 

 Immediately after the collision, Dickens consumed another 

drink of whiskey as he sat in his truck. A short time after 

the accident, a test of Dickens' breath indicated that his 

blood alcohol content was 0.24% by weight which raised the 

presumption that he was intoxicated. Dickens subsequently 

pled guilty to the charge of reckless driving. 

 In Puent, we observed that "in order to create an issue 

of punitive damages where misconduct or malice has not been 

shown, a plaintiff must show that the defendant's conduct was 

of 'such recklessness or negligence as evinces a conscious 

disregard of the rights of others.'" 245 Va. at 219, 427 

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S.E.2d at 342 (quoting Baker v. Marcus, 201 Va. 905, 909, 114 

S.E.2d 617, 621 (1960)). We stated that the evidence of 

record in Puent was insufficient to support an award of 

punitive damages and, thus, we held that the trial court 

properly struck the plaintiff's evidence. 

 We hold that unlike the plaintiff in Puent, Webb has 

established sufficient facts from which a jury may infer that 

the defendant's acts of recklessness or negligence evinced a 

conscious disregard of the rights of others. Viewing the 

evidence in the light most favorable to the plaintiff, the 

defendant was traveling 90 m.p.h. in a residential 

neighborhood with a 25 m.p.h. speed limit, and he drove his 

car through a red light. Additionally, the defendant had a 

blood alcohol content of .21%, and he was so intoxicated that 

he did not know where he was, nor did he know the time of 

night. Therefore, the trial court should not have struck the 

plaintiff's common law claim for punitive damages. 

 We will affirm that portion of the trial court's judgment 

which held that the plaintiff failed to establish a claim for 

punitive damages under Code § 8.01-44.5. We will reverse that 

portion of the trial court's order which dismissed the 

plaintiff's common law claim for punitive damages, and we will 

remand this proceeding for a trial only on the plaintiff's 

common law punitive damages claim. 

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Affirmed in part,

reversed in part,

and remanded. 

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