PRESENT: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Poff, Senior Justice 

JOAN IRVINE SMITH 

 OPINION BY 

v. Record No. 980250 SENIOR JUSTICE RICHARD H. POFF 

 November 6, 1998 

FLOYD R. LITTEN 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

Carleton Penn, Judge Designate 

 As defined by the employer named in an employee's suit 

claiming damages for employment termination based upon age 

discrimination, the issue on appeal is whether the trial court 

"erred in allowing the stipulation into evidence of the 

defendant's net worth of $50,000,000.00 when there was no 

evidence of willful or wanton conduct or a conscious disregard 

of the plaintiff's rights". The underlying question is whether 

the evidence was sufficient to support the trial court's ruling 

authorizing the jury to consider an award of punitive damages. 

 Floyd R. Litten (Litten) filed a motion for judgment 

against Joan Irvine Smith (Ms. Smith) alleging, inter alia, that 

he had been "terminated due to his age"; that this constituted a 

"wrongful termination of employment in violation of the public 

policy of the Commonwealth of Virginia against discrimination in 

employment"; that the "unlawful termination . . . was wilful 

and wanton, and evinced conscious disregard for the rights of 

Litten"; and that he was entitled to both compensatory and 

punitive damages. 
 The record shows that, in 1972, Ms. Smith employed Litten 

as caretaker of a large estate in Fauquier County that she had 

inherited. She and her husband, Morton Smith (Mr. Smith), lived 

in the manor house and allowed Litten, his wife, and his son to 

occupy another house on the property. In 1976, Ms. Smith moved 

to California where she made her home, never returning to her 

Virginia estate. After the Smiths' divorce in 1976, Ms. Smith 

authorized Mr. Smith to operate the horse farm on her Virginia 

estate. 

 In 1994, James Rich, an adjoining neighbor of the Smith 

estate for 20 years, telephoned Mr. Smith and inquired about a 

rumor he had heard that Ms. Smith had fired Litten. Mr. Smith 

confirmed the rumor and explained that Litten, who was 79 years 

of age, was "just too old and he hasn't done much around the 

farm for several years." Rich said that Mr. Smith "kind of runs 

the show over there . . . with [Mrs.] Ann Bland." 

 Mrs. Bland testified that Ms. Smith considered her "the 

overseer or the caretaker or just the farm manager." In a 

deposition conducted in California and admitted into evidence, 

Ms. Smith agreed that "both Mrs. Bland and Mr. Smith were [her] 

representatives in dealing with Mr. Litten" and that both had 

told her that Litten had stopped working the hours required of 

him. Other neighbors disagreed. Rich testified that the Smith 

property was "[v]ery well maintained" by Litten, because "he saw 

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to the details." Another neighbor, William Leach, agreed that 

he "never saw any evidence of neglect" and that he wished his 

own property "looked as well." 

 Litten testified that neither Mrs. Bland nor Mr. Smith ever 

told him that he was not doing his work satisfactorily. Litten 

explained that sometimes he would not work Saturdays because of 

the overtime he had worked during the week. He also stated 

that, during hot weather, he would take longer lunch periods and 

make up the time in the cooler evenings. Litten said that, when 

he asked Ms. Smith if he could plant his garden on her property, 

she said, “I don’t give a damn if you put the whole front yard 

in a garden.” Litten admitted sharing the produce from his 

garden with neighbors and friends, and selling some at the 

market, but he claimed that he could do so because it “was my 

produce.” 

 In her deposition, Ms. Smith said that she had made the 

decision to fire Litten "just prior to July of '94" and had 

instructed Mrs. Bland "to terminate him and . . . to call [her 

attorney] and have Mr. Litten given notice." 

Litten first learned of his discharge when Mrs. Bland 

approached him at work. Litten testified that she "come [sic] 

over and stopped" him and told him "you've got to get out, Mrs. 

Smith's got somebody to replace you." Litten said that, in 

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reply to his question concerning his garden, Mrs. Bland said, 

"no, no garden . . . be out in 30 days." 

In a letter addressed to Litten dated July 1, 1994, Ms. 

Smith's attorney informed him that he was "terminated from [his] 

employment with Mrs. Smith effective July 1, 1994", that he was 

"expected to vacate the house . . . by August 1, 1994", and that 

"the keys, tools, and any other miscellaneous items that belong 

to Mrs. Smith, should be turned in by July 15, 1994." 

 The attorney's letter did not state any reason for Litten's 

termination, and Ms. Smith never gave him one. In her 

deposition, Ms. Smith explained that her representatives, Mrs. 

Bland and Mr. Smith, had told her that Litten was using her 

pickup truck to transport garden produce, wild walnuts grown on 

her property, and firewood cut there for sale to local 

merchants. 

 At the conclusion of Litten's evidence, Ms. Smith moved to 

strike Litten's claim of punitive damages and objected to the 

introduction of a stipulation reached by counsel that Ms. 

Smith's net worth was approximately $50,000,000. The objection 

was based upon the ground that "there is no factual evidence as 

to malice, ill will or spite or conscious disregard of Mr. 

Litten's rights." The trial court overruled the objection, and 

the stipulation was read before the jury. 

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 The court instructed the jury on punitive damages as 

follows: 

If you find that Mr. Litten is entitled to be 

compensated for his damages and you further believe by 

the greater weight of the evidence that [Ms.] Smith or 

Ann Bland acted under circumstances amounting to a 

willful and wanton disregard of Mr. Litten's rights, 

then you may also award punitive damages to punish 

[Ms. Smith] and to serve as an example to prevent 

others from acting in a similar way. 

 Willful and wanton conduct is acting consciously 

in disregard of another person's rights or acting with 

a reckless indifference to the consequences to another 

person while aware of one's conduct and while also 

aware, from one's knowledge of existing circumstances 

and conditions, that one's conduct would probably 

result in injury to another. 

 The jury retired and, upon consideration of the evidence 

and the court's instructions, returned a verdict awarding Litten 

$36,000 in compensatory damages and $50,000 in punitive damages. 

 Initially, we note that the 1995 amendments to the Virginia 

Human Rights Act, Code § 2.1-725, place certain limits upon an 

employee's right to punitive damages for wrongful termination of 

employment. Because Litten was terminated and filed this motion 

for judgment before those amendments became effective, his cause 

of action is governed by the common law of Virginia. 

 In Shaw v. Titan Corporation, 255 Va. 535, 498 S.E.2d 696 

(1998), we considered an appeal of a wrongful termination action 

filed before the 1995 amendments to the Virginia Human Rights 

Act took effect. There, we recognized wrongful termination as 

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an "intentional tort" and ruled that, "[w]hen a plaintiff pleads 

and proves an intentional tort under the common law of Virginia, 

the trier of fact may award punitive damages." Id. at 545, 498 

S.E.2d at 701. 

 On brief, Ms. Smith acknowledges that "a review of the key 

pieces of evidence that focus on the termination may establish a 

discriminatory discharge claim". She argues, however, that the 

evidence is "free from any singular aggravating act on behalf of 

the Employer . . . that justifies admission of the Employer's 

net worth for consideration by the jury." We disagree. 

 Under the well-established standard of appellate review, a 

trial court's judgment is presumed to be correct and, on appeal, 

we must view the evidence and all reasonable inferences 

deducible therefrom in the light most favorable to the 

prevailing party at trial. Ravenwood Towers, Inc. v. Woodyard, 

244 Va. 51, 57, 419 S.E.2d 627, 630 (1992). Additionally, as 

the party who comes before us with a jury verdict approved by 

the trial court, Litten "occupies the most favored position 

known to the law." Id. (quoting Pugsley v. Privette, 220 Va. 

892, 901, 263 S.E.2d 69, 76 (1980)); accord Evaluation Research 

Corp. v. Alequin, 247 Va. 143, 147, 439 S.E.2d 387, 390 (1994). 

 The Virginia Human Rights Act declares that "[i]t is the 

policy of the Commonwealth of Virginia . . . [t]o safeguard all 

individuals within the Commonwealth from unlawful discrimination 

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because of . . . age . . . in employment". Code § 2.1-715. By 

its finding in favor of Litten, the jury necessarily concluded 

that Ms. Smith had violated that provision of the Act and that 

she had unlawfully discriminated against Litten by discharging 

him because, as her acknowledged representative reported, he had 

become "just too old". The court confirmed the jury's verdict, 

and Ms. Smith assigned no error to that ruling. 

 In considering whether the court properly admitted the 

stipulation as to Ms. Smith's net worth, we must decide whether 

there was sufficient evidence to submit the issue of punitive 

damages to the jury. In Hamilton Development Co. v. Broad Rock 

Club, 248 Va. 40, 45, 445 S.E.2d 140, 143 (1994), we said that 

the purpose of an award of punitive damages "is not so much to 

compensate the plaintiff but to punish the wrongdoer and to warn 

others". We hold that the stipulation of the wrongdoer's net 

worth was material to that twofold purpose and relevant to a 

determination of the quantum of the award. 

 Punitive damages "may be recovered 'only where there is 

misconduct or actual malice, or such recklessness or negligence 

as to evince a conscious disregard of the rights of others.'" 

Id. (quoting Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685, 

152 S.E.2d 271, 277 (1967)). However, the conclusion that there 

was misconduct or malice, or that a party acted with a conscious 

disregard of another's rights need only be a "possible 

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conclusion" the jury could reach. Jordan v. Sauve and Koons, 

219 Va. 448, 454, 247 S.E.2d 739, 742 (1978). 

 In Jordan, the plaintiff sued a car dealer for fraud in 

connection with her purchase of an automobile, seeking both 

compensatory and punitive damages. At the conclusion of the 

plaintiff's evidence, the trial court struck the claim for 

punitive damages. Reversing that ruling, we remanded the case, 

reasoning that: 

Considered in a light most favorable to 

plaintiff, the evidence of Sauve's misrepresentation 

that the car was new, coupled with his misstatements 

about the accumulated mileage, price sticker, brakes, 

sticker price and discount, and financing, would have 

justified the jury in finding Sauve's misconduct to be 

of such a reckless and negligent character as to 

evince a conscious disregard of Jordan's rights. 

Though not inevitable, this was a possible conclusion, 

making the punitive damage issue one for the jury to 

decide on proper instructions. Id. 

 Applying the rationale from Jordan to the facts of this 

case, we cannot say that the jury was unjustified in concluding 

that Ms. Smith acted with a conscious disregard of Litten's 

common law rights. 

 A summary of our opinions shows that if a tortfeasor's tort 

was intentional rather than negligent, i.e., deliberately 

committed with intent to harm the victim; or, if a tortfeasor's 

negligent act or omission in violation of the common law 

reflects malice, willful or wanton conduct, or a conscious 

disregard of the victim's common law rights; and if the evidence 

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is sufficient to support an award of compensatory damages, the 

victim's right to punitive damages and the quantum thereof are 

jury questions. 

 The trial court's instructions to the jury constituted a 

fair summary of these principles. The jury found the evidence 

sufficient to support an award of damages compensating Litten 

for the losses he sustained and an award of damages punishing 

Ms. Smith for committing a common law wrong. Finding no merit 

in Ms. Smith's assignment of error, we will affirm the judgment 

of the trial court. 

Affirmed.

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