Present: All the Justices 

HARVEY R. WILLIAMS, SR., 

ADMINISTRATOR OF THE ESTATE 

OF HARVEY R. WILLIAMS, JR. 

v. Record No. 970880 OPINION BY JUSTICE ELIZABETH B. LACY 

 February 27, 1998 

JEFFREY L. HARRISON 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

In this appeal, we consider issues of contributory 

negligence and last clear chance. 

On the night of December 14, 1994, Harvey R. Williams, 

Jr. (Harvey), Jeffrey L. Harrison, and two of their friends 

were driving through a subdivision in Fairfax County in four 

separate cars. Harvey's vehicle was second in the line, 

followed by Harrison's vehicle. Harvey and Harrison were 

driving at speeds of approximately 60-65 miles per hour and 45 

miles per hour, respectively. The speed limit was 35 miles 

per hour. 

Shortly after cresting a hill, Harvey braked suddenly, 

skidding in a straight line. When Harrison crested the hill 

and saw the brake lights and the smoke emanating from the 

tires of Harvey's car, he moved from the right lane into the 

center turn lane, hoping to avoid Harvey's car by passing it 

on the left side. But Harvey also turned his car to the left, 

in front of Harrison's car. Both cars ultimately entered the 
far left lane where Harrison's car struck Harvey's car. 

Harvey died from injuries sustained in the collision. 

Harrison was later convicted of involuntary manslaughter. 

Harvey R. Williams, Sr. (Williams), qualified as 

administrator of Harvey's estate and filed a wrongful death 

action against Harrison. After a two-day trial, the jury 

returned a verdict in favor of Harrison. Williams raises 

three issues on appeal: (1) whether the trial court erred in 

denying his motion in limine and allowing Harrison to assert 

the defense of contributory negligence, despite Harrison's 

manslaughter conviction; (2) whether the trial court erred in 

refusing to instruct the jury on last clear chance; and (3) 

whether the trial court improperly limited the scope of 

Williams' cross-examination of Harrison. We consider the 

issues in order. 

I. 

 Prior to trial, Williams filed a motion in limine, 

asserting that the ex turpi causa doctrine should be applied 

to prevent Harrison from raising the defense of contributory 

negligence. Williams relied on a circuit court case in which 

the ex turpi causa doctrine was applied to preclude a 

defendant convicted of manslaughter from raising the 

contributory negligence defense. The trial court rejected the 

application of ex turpi causa concluding that the plea of 

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contributory negligence did not involve the wrongdoing of the 

defendant but rather the wrongdoing of the plaintiff, and 

denied the motion in limine. 

 On appeal, Williams shifts the focus of his argument. He 

no longer relies primarily on the doctrine of ex turpi causa, 

but argues instead that this case is directly controlled by 

Matthews v. Warner's Administrator, 70 Va. (29 Gratt.) 570 

(1877). According to Williams, Matthews held that a defendant 

convicted of murder or manslaughter cannot assert the defense 

of contributory negligence in a subsequent wrongful death 

action. Williams argues that, even if we do not adopt his 

interpretation of Matthews, we should not allow Harrison to 

assert contributory negligence based on the ex turpi causa

doctrine that no one should profit by his illegal act. 

 We reject Williams' position. First, Matthews does not 

stand for the principle espoused by Williams and is not 

applicable to this case. Second, we find that ex turpi causa

should not be extended to preclude the contributory negligence 

defense in these circumstances. 

In Matthews, Franklin M. Matthews shot and killed 

Montesco Warner after Matthews received "abusive language" 

from Warner. 70 Va. (29 Gratt.) at 570. In the ensuing 

wrongful death action, this Court refused to allow Matthews to 

raise the defense of contributory negligence because Warner's 

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death "was not caused by negligence; it was caused by violence 

-- by a wrongful act . . . . [W]hether it was murder in the 

first degree, or murder in the second degree, or manslaughter, 

it is still a wrongful act, which is actionable under the 

[wrongful death] statute." Id. at 578. Williams erroneously 

relies on this language for the principle that a manslaughter 

conviction precludes a contributory negligence defense in a 

subsequent wrongful death action. 

The import of this language must be determined in light 

of the entire proceeding. Warner's wrongful death action was 

based on an intentional tort, not on negligence. The motion 

for judgment alleged that Matthews "feloniously, willfully and 

of his malice aforethought did discharge and shoot" Warner. 

The language at issue and the holding of Matthews, therefore, 

simply reflect the familiar principle that contributory 

negligence is not a defense to an intentional tort. 

Restatement (Second) of Torts § 481 (1965). As we have 

stated, in the absence of primary negligence by the defendant, 

contributory negligence cannot exist. Andrews v. Chesapeake & 

Ohio Ry. Co., 184 Va. 951, 956, 37 S.E.2d 29, 31 (1946); 

Shumaker's Adm'x v. Atlantic Coast Line R.R. Co., 125 Va. 393, 

401, 99 S.E. 739, 741 (1919). 

The holding in Matthews, that an action for an 

intentional tort may not be defended with allegations of 

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contributory negligence, is inapplicable to the instant case 

because Williams' action here was premised on a negligence 

theory. In his motion for judgment, Williams alleged that 

Harrison "had a duty to operate his automobile without 

negligence," that he breached that duty by operating his 

vehicle "carelessly and negligently," and that this breach 

resulted in Harvey's death. Because Williams' wrongful death 

action is based on negligence, not an intentional tort, 

Harrison was entitled to raise the contributory negligence 

defense. 

Finally, we decline Williams' invitation to preclude 

Harrison's use of the contributory negligence defense based on 

the policy that no one should profit from his illegal act, the 

ex turpi causa doctrine. Williams cites no appellate case 

from this Court or elsewhere which has extended this doctrine 

as Williams suggests. This lack of precedent is 

understandable. The defense of contributory negligence does 

not allow a defendant to profit from his misdeeds. We find no 

persuasive rationale for applying the doctrine of ex turpi

causa to prohibit the defendant from raising the defense of 

contributory negligence in this case. 

Accordingly, we find that the trial court did not err in 

denying Williams' motion in limine and allowing the defendant 

to raise contributory negligence as a defense. 

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II. 

 We next consider Williams' second assignment of error, 

that the trial court erred in refusing to instruct the jury on 

last clear chance. 

 Prior to our decision in Greear v. Noland Co., 197 Va. 

233, 89 S.E.2d 49 (1955), the law regarding the doctrine of 

last clear chance was "in a state of hopeless confusion." 

Pack v. Doe, 236 Va. 323, 328, 374 S.E.2d 22, 24-25 (1988). 

Greear clarified the doctrine. Id. The last clear chance 

doctrine applies in two situations: (1) where the injured 

party has negligently placed himself in a position of peril 

from which he is physically unable to remove himself (the 

helpless plaintiff); and (2) where the injured party has 

negligently placed himself in a position of peril from which 

he is physically able to remove himself, but he is unconscious 

of his peril (the inattentive plaintiff). Id. at 328-29, 374 

S.E.2d at 25. 

In the first situation, the plaintiff must be "physically 

incapacitated" to qualify as a helpless plaintiff, 

Vanlandingham v. Vanlandingham, 212 Va. 856, 858, 188 S.E.2d 

96, 98 (1972), and the defendant is liable if he saw or should 

have seen the helpless plaintiff. In the second situation, 

the defendant is liable only if he actually saw the 

inattentive plaintiff. In either case, however, liability is 

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further predicated upon a showing that the defendant realized 

or ought to have realized the peril of the helpless or 

inattentive plaintiff in time to avert the accident by use of 

reasonable care. Pack, 236 Va. at 329, 374 S.E.2d at 25; 

Greear, 197 Va. at 238-39, 89 S.E.2d at 53. 

A final principle applicable to the last clear chance 

doctrine, is that last clear chance does not supersede 

contributory negligence. A negligent plaintiff may recover 

only if his negligence was a remote rather than a proximate 

cause of the accident. If the opportunity to avoid the 

accident is as available to a plaintiff as to a defendant, 

then the plaintiff's negligence is a proximate cause rather 

than a remote cause, and bars recovery. Cook v. Shoulder, 200 

Va. 281, 285-86, 105 S.E.2d 860, 863 (1958). The plaintiff 

has the burden of establishing each element of the doctrine by 

a preponderance of the evidence. Pack, 236 Va. at 329, 374 

S.E.2d at 25. 

In all but one case in which we have considered this 

issue since 1955, Turner v. Railway Company, 205 Va. 691, 139 

S.E.2d 68 (1964), we have declined to require the application 

of the doctrine, and we decline to do so here. Williams, like 

the other plaintiffs, has failed to provide evidence of each 

element necessary to invoke the last clear chance doctrine. 

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Williams argues that he was entitled to the last 

clear chance instruction under the second classification, 

the inattentive plaintiff, even though the jury 

instruction offered by Williams and denied by the trial 

court, instruction No. 13, described a helpless, not an 

inattentive, plaintiff. Nevertheless, Williams was not 

entitled to the instruction on either ground because the 

record contains no evidence showing that Harvey was 

physically incapacitated or that he was unaware of the 

peril in which he had placed himself. Further, the 

collision occurred after both Harrison and Harvey moved 

from the right lane, across the center turn lane, and 

into the left lane for oncoming traffic. Harvey's action 

in crossing into the left lane was a proximate cause of 

the accident, not a remote cause. Therefore, Williams 

was not entitled to the last clear chance instruction. 

III. 

Finally, Williams asserts that the trial court improperly 

limited his cross-examination of Harrison. However, Williams 

did not proffer the additional questions he intended to ask or 

the additional testimony he expected to elicit from further 

cross-examination, nor was he prevented from doing so by the 

trial court. See Brown v. Commonwealth, 246 Va. 460, 464-65, 

437 S.E.2d 563, 564-65 (1993). In the absence of a proffer, 

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we will not consider this issue on appeal. Clagett v. 

Commonwealth, 252 Va. 79, 95, 472 S.E.2d 263, 272, cert.

denied, ___ U.S. ___, 117 S.Ct. 972 (1996); Chappell v. 

Virginia Electric and Power Co., 250 Va. 169, 173—74, 458 

S.E.2d 282, 284-85 (1995). 

 Accordingly, because the trial court did not err in 

allowing Harrison to raise the defense of contributory 

negligence or in refusing to instruct the jury on last clear 

chance, we will affirm the judgment of the trial court. 

Affirmed.

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