PRESENT: All the Justices 

HANNAH LEIGH EVANS, AN INFANT, WHO SUES 

BY HER MOTHER, NATURAL GUARDIAN AND NEXT 

FRIEND, CYNTHIA KAY STEVENS 

 OPINION BY 

v. Record No. 091469 JUSTICE DONALD W. LEMONS 

 June 10, 2010 

BILLY BRADLEY EVANS, II 

FROM THE CIRCUIT COURT OF BEDFORD COUNTY 

James W. Updike, Jr., Judge 

In this appeal, we consider whether the trial court erred 

when it sustained the demurrer of Billy Bradley Evans, II 

(“Evans”) to the amended complaint of Hannah Leigh Evans 

(“Hannah”).1

I. Facts and Proceedings Below 

Hannah, an infant suing by her mother, filed an amended 

complaint against Evans, her father, which alleged that Evans 

placed Hannah, then four years old, “in a [portable] foam seat 

in the floorboard of a 1972 [pickup] truck” he was operating. 

The truck was involved in a head-on collision with an 

automobile operated by Caleb Justin Jarman, which caused the 

truck to travel off the roadway and hit a fence. 

 1

 The intra-family immunity rule is subject to exception 

when an action is brought by a child against a parent for 

injuries sustained in a motor vehicle accident. Pavlick v. 

Pavlick, 254 Va. 176, 181, 491 S.E.2d 602, 604 (1997) (citing 

Smith v. Kauffman, 212 Va. 181, 186, 183 S.E.2d 190, 194 

(1971)). Additionally, this case does not present a claim by a 

parent for medical expenses. See Code § 8.01-36. 
Hannah alleged in the amended complaint that due to her 

father’s failure to secure Hannah in the vehicle, she was 

“violently thrown about in the undercarriage and cab area” of 

the truck. As a result, Hannah sustained numerous injuries 

including, but not limited to: multiple facial contusions, a 

skull fracture, cerebral edema and subarachnoid hemorrhage of 

the right frontal lobe, a ruptured bladder, a left acetabular 

fracture, and an inferior pubic rami fracture. Because of the 

acquired brain injury and the seriousness of her other 

injuries, Hannah was subjected to several months of 

hospitalization and rehabilitation. 

Hannah alleged that Evans owed her a duty of care both as 

the operator of the vehicle and as her father. Notwithstanding 

this duty, Hannah alleged that Evans “carelessly, recklessly, 

willfully, wantonly, grossly, negligently and grossly 

negligently, permitted” her to be left in such an unsafe and 

unreasonably dangerous seating arrangement. Hannah asserted 

that Evans’ alleged negligence was the direct and proximate 

cause of her serious and permanent physical and psychological 

injuries, and she sought $100,000 in “compensatory and/or 

punitive damages.” 

Hannah’s amended complaint contained no reference to Code 

§ 46.2-1095(A), which requires that children “up to age eight” 

be placed in a child restraint device when traveling in a motor 

2
vehicle on the highways of Virginia. Rather, the amended 

complaint focused on other aspects of Evans’ conduct. Hannah 

alleged that Evans was “negligent and grossly negligent” when 

he: 

A. Placed [Hannah] in a foam seat in an 

area of a 33-year-old truck which was 

as inherently dangerous as having 

placed her in the cargo bed of the 

truck. 

B. Placed [Hannah] in a loose seat on the 

floorboard where said infant was 

surrounded by sharp objects and hard 

objects in the form of undercarriage 

structure, wires and front seat support 

metal rods and metal bars[.] 

C. Placed [Hannah] on the floorboard of 

the truck. 

D. Placed [Hannah] in an extreme injuryrisk location as described above while 

knowing that such placement would be 

catastrophic to the infant should any 

foreseeable motor vehicle accident 

occur. 

E. Ignored his duty of care to assure that 

his infant passenger was . . . safe and 

free from being tossed about in the 

confined area between the truck 

floorboard and the underside of the 

dashboard. 

In his responsive pleadings, Evans demurred to Hannah’s 

amended complaint, arguing that Code § 46.2-1095(C) barred 

Hannah’s claims, and that she failed to state a claim upon 

which relief could be granted. Code § 46.2-1095 (C) states in 

pertinent part: “A violation of this section shall not 

3
constitute negligence.” Evans also denied that he was liable 

to Hannah or that he breached any legal duty owing to her. 

Following briefing by the parties, the trial court held a 

hearing at which it acknowledged that Hannah was asserting a 

common law negligence claim and not a claim of negligence for 

Evans’ alleged violation of Code § 46.2-1095. However, the 

trial court stated, 

[the] statutory duty [to secure a child in 

a vehicle] is so inextricably intertwined 

with any common law duty of care, that in 

my view it would be impossible to try this 

case without [the statute] somehow coming 

up either explicitly, or even the jury is 

thinking about it, that reference would be 

made to this statute. 

The trial court reasoned that if counsel for Hannah argued that 

Evans failed to exercise reasonable care by placing Hannah on 

the floor of the truck, the jury would accept that argument 

because it would know that Evans “is required by statute to put 

that child in a child restraint seat and he didn’t do it.” 

 The trial court concluded that “the General Assembly 

exerted a whole lot of effort here to say this kind of 

conduct . . . is not going to be the basis for a civil action 

in this Commonwealth.” Accordingly, the trial court sustained 

Evans’ demurrer to Hannah’s amended complaint and dismissed the 

complaint with prejudice. 

4
 Hannah timely filed her notice of appeal, and we granted 

an appeal on the following assignments of error: 

1. The Circuit Court erred because it failed to view the 

Amended Complaint in the light most favorable to the 

Plaintiff and, in doing so, failed to recognize that 

a jury could reasonably find that the placement of a 

four-year old child on the floorboard of a 1972 truck 

was in and of itself a separate and identifiable act 

of negligence, without reference to the statute. 

2. The Circuit Court erred in failing to recognize that 

Va. Code § 46.2-1095(C) refers only to “negligence” 

and does [sic] regulate claims for “gross negligence” 

which[] are distinct and separate causes of action, 

commonly referred to as claims for punitive damages. 

3. The Circuit Court erred when it construed Va. Code 

§ 46.2-1095(C) other than according to its plain 

meaning and in such a way as to create the absurd 

result of immunizing a wrongdoer for any degree of 

negligence in transporting a child in a motor 

vehicle. 

4. The Circuit Court erred in failing to construe Va. 

Code §§ 46.2-1095 and 46.2-1098 conjunctively, given 

the language of Va. Code § 46.2-109[8] which 

specifically states in part that “nor shall violation 

of this article constitute a defense to any claim for 

personal injuries to a child or the recovery of 

medical expenses for injuries sustained in any motor 

vehicle accident.” 

II. Analysis 

A. Standard of Review 

 As we previously have stated, 

“[a] demurrer admits the truth of the facts 

contained in the pleading to which it is 

addressed, as well as any facts that may be 

reasonably and fairly implied and inferred 

from those allegations. A demurrer does 

not, however, admit the correctness of the 

pleader’s conclusions of law.” Yuzefovsky 

5
v. St. John’s Wood Apts., 261 Va. 97, 102, 

540 S.E.2d 134, 136-37 (2001) (internal 

citation omitted). Accordingly, we will 

consider the facts stated, and those 

reasonably and fairly implied and inferred, 

in the [complaint] in a light most 

favorable to the plaintiff, but we will 

review the sufficiency of the legal 

conclusions ascribed to those facts de 

novo. 

Taboada v. Daly Seven, Inc., 271 Va. 313, 317-18, 626 S.E.2d 

428, 429 (2006), aff’d on reh’g, 273 Va. 269, 270, 641 S.E.2d 

68, 68 (2007). In this appeal, we interpret Code §§ 46.2-1095 

and 46.2-1098. 

[A]n issue of statutory interpretation is a 

pure question of law which we review de 

novo. When the language of a statute is 

unambiguous, we are bound by the plain 

meaning of that language. Furthermore, we 

must give effect to the legislature’s 

intention as expressed by the language used 

unless a literal interpretation of the 

language would result in a manifest 

absurdity. If a statute is subject to more 

than one interpretation, we must apply the 

interpretation that will carry out the 

legislative intent behind the statute. 

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 

104, 639 S.E.2d 174, 178 (2007) (citations omitted). 

Furthermore, “[t]he plain, obvious, and rational meaning of a 

statute is to be preferred over any curious, narrow, or 

strained construction.” Commonwealth v. Zamani, 256 Va. 391, 

395, 507 S.E.2d 608, 609 (1998). 

6
B. Code §§ 46.2-1095 and 46.2-1098 

The dispositive issue in this case is whether Code 

§§ 46.2-1095 and 46.2-1098 preclude any cause of action for 

negligence when an injured child alleges that the adult 

responsible for her safety breached the common law duty of care 

by failing to secure the child in a safety seat. 

Code § 46.2-1095(A) provides in pertinent part that any 

person who drives on the highways of Virginia “shall ensure 

that any child, up to age eight, whom he transports therein is 

provided with and properly secured in a child restraint device 

of a type which meets the standards adopted by the United 

States Department of Transportation.” Code § 46.2-1095(C) 

provides in pertinent part, “[a] violation of this section 

shall not constitute negligence, be considered in mitigation of 

damages of whatever nature, be admissible in evidence or be the 

subject of comment by counsel in any action for the recovery of 

damages in a civil action.” Code § 46.2-1098 provides in 

pertinent part, “[v]iolations of this article shall not 

constitute negligence per se; nor shall violation of this 

article constitute a defense to any claim for personal injuries 

to a child or recovery of medical expenses for injuries 

7
sustained in any motor vehicle accident.”2

Our review of these statutes is guided by well-established 

canons of construction. 

The General Assembly has proclaimed, “The common 

law of England, insofar as it is not repugnant 

to the principles of the Bill of Rights and 

Constitution of this Commonwealth, shall 

continue in full force . . . and be the rule of 

decision, except as altered by the General 

Assembly.” Code § 1-200. When construing a 

statute in derogation of the common law, we 

apply several established principles. “[A] 

statutory provision will not be held to change 

the common law unless the legislative intent to 

do so is plainly manifested.” Herndon v. St. 

Mary’s Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 

567, 569 (2003). “Statutes in derogation of the 

common law are to be strictly construed and not 

to be enlarged in their operation by 

construction beyond their express terms.” 

Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 

175, 181, 142 S.E.2d 514, 518 (1965). 

Accordingly, “[a] statutory change in the common 

law is limited to that which is expressly stated 

in the statute or necessarily implied by its 

language because there is a presumption that no 

change was intended.” Mitchem v. Counts, 259 

Va. 179, 186, 523 S.E.2d 246, 250 (2000). “When 

an enactment does not encompass the entire 

subject covered by the common law, it abrogates 

the common-law rule only to the extent that its 

terms are directly and irreconcilably opposed to 

 2

 Both Code §§ 46.2-1095 and 46.2-1098 are codified in 

Article 13, which is entitled “Child Restraints.” Because they 

clearly address the same subject matter, we construe them 

together under the “in pari materia” canon of construction. 

See e.g. USAA Cas. Ins. Co. v. Hertz Corp., 265 Va. 450, 457, 

578 S.E.2d 775, 778 (2003) (construing statutes appearing in 

Title 46.2 and dealing with insurance requirements for motor 

vehicles); Taylor v. Shaw & Cannon Co., 236 Va. 15, 19, 372 

S.E.2d 128, 131 (1988) (statutes are “read . . . in pari 

materia since they relate to the same subject”). 

8
the rule.” Boyd [v. Commonwealth, 236 Va. 346, 

349, 374 S.E.2d 301, 302 (1988)]. 

Isbell v. Commercial Investment Assocs., Inc., 273 Va. 605, 

613-14, 644 S.E.2d 72, 75 (2007) (some internal citations 

omitted). 

“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].’ ” McGuire v. Hodges, 273 

Va. 199, 206, 639 S.E.2d 284, 288 (2007) (quoting Butler v. 

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

party relying on negligence per se does not need to establish 

common law negligence.” Id. These principles provide a clear 

distinction between statutory and common law negligence. In 

Code § 46.2-1098, the General Assembly plainly indicated that 

it was not creating a statutory standard of care through its 

enactment of Code § 46.2-1095. Accordingly, a plaintiff may 

not rely on an alleged or admitted violation of Code § 46.2-

1095 to prove her claim of negligence per se. 

However, the question remains whether the General Assembly 

intended for Code §§ 46.2-1095 and 46.2-1098 to abrogate a 

cause of action based upon common law negligence when the facts 

involve the failure to secure a child in a child restraint 

device. Because “[a] statutory change in the common law is 

limited to that which is expressly stated in the statute or 

9
necessarily implied by its language,” Isbell, 273 Va. at 613-

14, 644 S.E.2d at 75, we hold that the legislature did not 

intend to eliminate common law causes of action arising from 

injuries sustained by a child in a motor vehicle accident. 

The language of Code § 46.2-1095(C) states in part, “[a] 

violation of this section shall not constitute negligence.” 

The language of Code § 46.2-1098 states in part, “[v]iolations 

of this article shall not constitute negligence per se.” 

Construing the statutory scheme as a whole, we hold that the 

“negligence” referred to in Code § 46.2-1095(C) is the same per 

se negligence referenced in Code § 46.2-1098. See e.g., City 

of Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675 

S.E.2d 197, 202 (2009) (construing statutes in Title 58.1 and 

explaining that “[i]t is the duty of the courts to construe 

statutory enactments so as to avoid repugnance and conflict 

between them and, if possible, to give force and effect to each 

of them”) (citing Sexton v. Cornett, 271 Va. 251, 257, 623 

S.E.2d 898, 901 (2006)); Alston v. Commonwealth, 274 Va. 759, 

769, 652 S.E.2d 456, 462 (2007) (construing statutes in Title 

19.2 and explaining that “[i]t is a cardinal rule of 

construction that statutes dealing with a specific subject must 

be construed together in order to arrive at the object sought 

to be accomplished”) (quoting Prillaman v. Commonwealth, 199 

Va. 401, 406, 100 S.E.2d 4, 7 (1957) (internal quotation marks 

10
omitted)). Consistent with Code § 1-200 and our case law, we 

conclude that the General Assembly intended preclusion of a per 

se negligence action based upon Code §§ 46.2-1095 and 46.2-

1098, but did not abrogate a common law action for negligence. 

The parties engage in much discussion regarding the 

meaning of the word “violation” in the statutes. Hannah 

maintains that the term refers to a formal adjudication under 

the statute. Evans maintains that it refers to a factual basis 

that could result in a formal adjudication. The resolution of 

that question is not the dispositive issue in this case. We 

hold that, read together, Code §§ 46.2-1095 and 46.2-1098: (i) 

preclude a cause of action based upon negligence per se; and 

(ii) preclude any mention of the statutory provisions by the 

parties at trial for any reason.3

Upon remand, the trial court should be mindful that in a 

common law cause of action for negligence, a child of four is 

not legally capable of contributory negligence. See Grant v. 

Mays, 204 Va. 41, 44, 129 S.E.2d 10, 12 (1963); Morris v. 

Peyton, 148 Va. 812, 821, 139 S.E. 500, 502-03 (1927). Also, 

in a suit by an infant to recover damages for personal injury, 

the negligence of a parent will not be imputed to his infant 

 3

 Because we hold today that Hannah’s common law cause of 

action survives, it is not necessary for us to reach the 

remaining assignments of error. 

11
child. Tugman v. Riverside & Dan River Cotton Mills, Inc., 144 

Va. 473, 481, 132 S.E.2d 179, 181 (1926). Finally, “[w]e have 

held that a plaintiff has a duty to mitigate [her] damages.” 

Sawyer v. Comerci, 264 Va. 68, 77, 563 S.E.2d 748, 754 (2002). 

“Generally, whether a plaintiff acted reasonably to minimize 

his damage is a question for the jury.” Id. However, in 

accordance with other jurisdictions, we hold that a four-year 

old child is unable, as a matter of law, to mitigate her 

damages. See Francis v. Dahl, 107 P.3d 1171, 1174 (Colo. Ct. 

App. 2005); accord Cardona v. County of Albany, 728 N.Y.S.2d 

355, 362 (N.Y. Sup. Ct. 2001) (“the infant plaintiffs, being 

non sui juris, were, as a matter of law, unable to mitigate 

their damages”). 

III. Conclusion 

For the reasons stated herein, we will reverse the 

judgment of the Circuit Court of Bedford County and remand the 

case to the trial court for further proceedings consistent with 

this opinion. 

Reversed and remanded. 

JUSTICE KINSER, dissenting. 

Today, the majority holds that the term "negligence" used 

by the General Assembly in Code § 46.2-1095(C) "is the same per 

se negligence" as the General Assembly utilized in Code § 46.2-

1098. Because those two terms have distinct legal meanings and 

12
because the majority ignores important principles of statutory 

construction, I respectfully dissent. 

The majority does not find that either of these statutes 

is ambiguous, nor do I. In construing a clear and unambiguous 

statute, "this Court looks no further than the plain meaning of 

the statute's words." Gray v. Rhoads, 268 Va. 81, 86, 597 

S.E.2d 93, 96 (2004). Furthermore, "[c]ourts cannot 'add 

language to the statute the General Assembly has not seen fit 

to include.' " Jackson v. Fidelity & Deposit Co. of Maryland, 

269 Va. 303, 313, 608 S.E.2d 901, 906 (2005) (quoting Holsapple 

v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 

(2003)). "[N]or are they permitted to accomplish the same 

result by judicial interpretation." Burlile v. Commonwealth, 

261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (citation and 

internal quotation marks omitted). 

Moreover, "[w]hen the General Assembly uses two different 

terms in the same act, those terms are presumed to have 

distinct and different meanings." Industrial Dev. Auth. v. 

Board of Supervisors, 263 Va. 349, 353, 559 S.E.2d 621, 623 

(2002) (emphasis added); accord Shelor Motor Co. v. Miller, 261 

Va. 473, 480, 544 S.E.2d 345, 349 (2001). We must "presume 

that the 'legislature chose, with care, the words it used when 

it enacted the . . . statute.' " Jackson, 269 Va. at 313, 608 

13
S.E.2d at 906 (quoting Simon v. Forer, 265 Va. 483, 490, 578 

S.E.2d 792, 796 (2003)). 

There can be no doubt that the words "negligence" and 

"negligence per se" are terms of art and have distinct legal 

meanings. This Court has defined "ordinary or simple 

negligence as the failure to use 'that degree of care which an 

ordinarily prudent person would exercise under the same or 

similar circumstances to avoid injury to another.' "1 Griffin 

v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 212-13 (1984) 

(quoting Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 

808 (1957)). To establish negligence, a plaintiff must "show 

the existence of a legal duty, a breach of the duty, and 

proximate causation resulting in damage." Atrium Unit Owners 

Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548 (2003). 

 1

 We have defined the term "gross negligence" as "that 

degree of negligence which shows indifference to others as 

constitutes an utter disregard of prudence amounting to a 

complete neglect of the safety of [another]. It must be such a 

degree of negligence as would shock fair minded men although 

something less than willful recklessness." Ferguson v. 

Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis 

omitted). "Willful and wanton negligence is acting consciously 

in disregard of another person's rights or acting with reckless 

indifference to the consequences, with the defendant aware, 

from his knowledge of existing circumstances and conditions, 

that his conduct probably would cause injury to another." 

Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 

(1984) (citing Friedman v. Jordan, 166 Va. 65, 68, 184 S.E. 

186, 187 (1936)). 

14
In contrast, "[t]he doctrine of negligence per se 

represents the adoption of 'the requirements of a legislative 

enactment as the standard of conduct of a reasonable 

[person].' " McGuire v. Hodges, 273 Va. 199, 206, 639 S.E.2d 

284, 288 (2007) (quoting Butler v. Frieden, 208 Va. 352, 353, 

158 S.E.2d 121, 122 (1967)). 

A party relying on negligence per se does not need to 

establish common law negligence provided the 

proponent 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. 

Id. (citing Halterman v. Radisson Hotel Corp., 259 Va. 171, 

176-77, 523 S.E.2d 823, 825 (2000)). 

Despite this obvious distinction between the terms 

"negligence" and "negligence per se" and the statutory 

construction principle that when the General Assembly uses two 

different terms in the same act, the terms are presumed to have 

distinct and different meanings, the majority concludes that 

the General Assembly did not mean what it said by using the 

term "negligence" in Code § 46.2-1095(C). When the General 

Assembly first enacted legislation requiring the use of child 

restraint devices while transporting children in motor 

vehicles, see former Code § 46.1-314.2, it did not include the 

15
term "negligence" in the statute. 1982 Acts ch. 634. However, 

in the same Act, the General Assembly enacted former Code 

§ 46.1-314.5(B), which did contain a reference to negligence 

per se: "Violations of the provisions of this article shall not 

constitute negligence per se; nor shall violation of this 

article constitute a defense to any claim for personal injuries 

to a child or recovery of medical expenses for injuries 

sustained in any motor vehicle accident." 1982 Acts ch. 634. 

Virtually the same language is now set forth in Code § 46.2-

1098. 

When enacted in 1982, former Code §§ 46.1-314.2 and –314.5 

were part of Article 9.1 in Chapter 4 of Title 46.1 of the 

Code. 1982 Acts ch. 634. Current Code §§ 46.2-1095 and –1098 

are included in Article 13 of Chapter 10 in Title 46.2. Thus, 

since its creation, a violation of the statute requiring the 

use of child restraint devices could not constitute negligence 

per se. 

In 1997, the General Assembly amended Code § 46.2-1095 and 

added the language now found in subsection C: "A violation of 

this section shall not constitute negligence, be considered in 

mitigation of damages of whatever nature, be admissible in 

evidence or be the subject of comment by counsel in any action 

for the recovery of damages in a civil action." 1997 Acts ch. 

793. Since it was already the case, pursuant to Code § 46.2-

16
1098, that a violation of Code § 46.2-1095 could not constitute 

negligence per se, it is apparent that the General Assembly 

intended what it enacted and did not use the term "negligence" 

to mean "negligence per se." 

Thus, I cannot adopt the view of the majority. To do so 

renders the 1997 amendment to Code § 46.2-1095 entirely 

superfluous and repetitious of what Code § 46.2-1098 already 

stated: a violation of Code § 46.2-1095 could not constitute 

negligence per se. See Sansom v. Board of Supervisors, 257 Va. 

589, 595, 514 S.E.2d 345, 349 (1999) (To interpret the phrase 

"substantial surface drainage course" and "stream" to denote 

the same type of topographical feature would "violate the 

settled principle of statutory construction that every part of 

a statute is presumed to have some effect and no part will be 

considered meaningless unless absolutely necessary.") (internal 

quotation marks and citation omitted). By its holding today, 

the majority presumes the General Assembly did not "[choose], 

with care, the words it used when it enacted [Code § 46.2-

1095(C)]." Simon, 265 Va. at 490, 578 S.E.2d at 796. I 

believe, however, that the General Assembly fully understands 

the significant legal difference between the terms "negligence" 

and "negligence per se." See Philip Morris USA Inc. v. 

Chesapeake Bay Found., Inc., 273 Va. 564, 576, 643 S.E.2d 219, 

225 (2007) ("In interpreting a statute, we presume that the 

17
General Assembly acted with full knowledge of the law in the 

area in which it dealt."). The numerous statutes in which 

these terms appear show that the General Assembly does not use 

them interchangeably. Compare Code §§ 29.1-748(C) (violation 

of section shall not constitute negligence), 46.2-334.01(E) 

(same), 46.2-335(E) (same), 46.2-906.1 (same), 46.2-915.1(D) 

(same), 46.2-915.2 (same), and 46.2-1094(D) (same), with Code 

§§ 19.2-392.02(G) (violation of section shall not constitute 

negligence per se), 29.1-749.3 (same), 32.1-111.3(B)(2), -

111.3(C)(2) (same), 46.2-800.1(C) (same), 46.2-813 (same), 

46.2-842.1 (same), 46.2-910(A) (same), 46.2-1030(D) (same), and 

59.1-524 (same). 

Despite the narrow issue before us, the majority concludes 

that the General Assembly "did not intend to eliminate common 

law causes of action arising from injuries sustained by a child 

in a motor vehicle accident." I agree. "[A] statutory 

provision will not be held to change the common law unless the 

legislative intent to do so is plainly manifested." Herndon v. 

St. Mary's Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 567, 569 

(2003). But, the question is not whether the General Assembly 

intended to eliminate all causes of action for injuries 

sustained by children in motor vehicle accidents. Instead, the 

proper inquiry is whether the General Assembly intended to 

abrogate common law negligence causes of action premised on the 

18
failure to secure a child in a child restraint system. I 

conclude that it did. What could be more plain, clear, and 

expressly stated than the language in Code § 46.2-1095(C): "[A] 

violation of this section [mandating use of child restraint 

devices] shall not constitute negligence"?2 (Emphasis added.) 

Under the majority's holding today, this infant, suing by 

her mother and next friend, can proceed with this common law 

negligence action against her father for injuries she allegedly 

sustained as a result of his failure to secure her in a child 

restraint device. She apparently can do so even though the 

father's failure to properly restrain his daughter, which 

violated Code § 46.2-1095(A), is not admissible in evidence 

under Code § 46.2-1095(C). Furthermore, under the terms of 

Code § 46.2-1098, a defendant sued by an infant's parent to 

recover medical expenses sustained as a result of a motor 

vehicle accident could not present a defense based on the 

conduct at issue. Thus, in my view, the majority disrupts a 

 2

 Reading Code §§ 46.2-1095 and –1098 "in pari materia" 

does not lead to a different result. Related statutes are read 

"in pari materia in order to give, when possible, consistent 

meaning to the language used by the General Assembly." 

Virginia Polytechnic Inst. & State Univ. v. Interactive Return 

Serv., Inc., 271 Va. 304, 310-11, 626 S.E.2d 436, 439 (2006). 

I find nothing inconsistent about the General Assembly's use of 

the terms "negligence" and "negligence per se" in Code §§ 46.2-

1095(C) and –1098, respectively. 

19
previously consistent statutory scheme and reverses a policy 

decision made by the General Assembly. 

Having concluded that the General Assembly meant what it 

stated in Code § 46.2-1095(C), I turn now to the question 

whether the circuit court erred in sustaining a demurrer to the 

amended complaint. As the majority notes, the infant, suing by 

her mother and next friend, alleged that her father placed her 

in a loose seat on the floorboard of a truck and by doing so, 

breached his duty of care to insure that his infant passenger 

was "safe and free from being tossed about in the confined area 

between the truck floorboard and the underside of the 

dashboard." There is no question that the alleged conduct 

violates Code § 46.2-1095(A), but the provisions of Code 

§ 46.2-1095(C) clearly state that "[a] violation of this 

section shall not constitute negligence." Establishing the 

alleged facts at trial will necessarily implicate the father's 

failure to secure his daughter in a child restraint device. 

And, establishing that the father's alleged negligence was the 

proximate cause of his daughter's injuries will necessarily 

entail consideration as to whether the infant would have been 

injured less seriously, or not at all, if she had been properly 

restrained. Thus, I conclude that the circuit court did not 

err in sustaining the demurrer. 

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For these reasons, I would affirm the judgment of the 

circuit court and therefore respectfully dissent. 

JUSTICE MIMS, concurring. 

I concur with the majority opinion, which I join. The 

majority and dissenting opinions thoroughly parse the language 

of Code §§ 46.2-1095 and 46.2-1098 in search of the elusive 

grail of legislative intent. Yet the two opinions reach 

diametrically opposed conclusions. The statutory language, 

together with the rather complex statutory history, has caused 

reasonable minds to differ. 

I write to suggest that in choosing between these opposite 

reasonable conclusions, one should not miss the forest for the 

trees.* Code § 46.2-1095 is both admirable and minimal. Its 

purpose is admirable: to protect children on the highways of 

the Commonwealth by requiring that they be secured by ageappropriate safety restraints. Yet its salutary effect is 

 *

 It is well-established that “we determine the legislative 

intent from the words used in the statute, applying the plain 

meaning of the words unless they are ambiguous or would lead to 

an absurd result.” Wright v. Commonwealth, 278 Va. 754, 759, 

685 S.E.2d 655, 657 (2009). However, “[t]he ultimate purpose 

of these rules is to ascertain the intention of the 

legislature, and every statute is to be read so as to promote 

the ability of the enactment to remedy the mischief at which it 

is directed.” USAA Casualty Ins. Co. v. Alexander, 248 Va. 

185, 194, 445 S.E.2d 145, 150 (1994) (internal alterations and 

quotation marks omitted). 

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minimal due to its negligible sanction: a $50 civil penalty 

with no demerit points and no imposition of court costs. 

The General Assembly enacted a remedial statute whose sole 

purpose is to protect defenseless children who cannot protect 

themselves. The majority opinion concludes that the General 

Assembly intended to add this minimal statutory protection to 

the existing common law tort remedy available to grievously 

injured children such as Hannah. Therefore it holds that a 

violation of the statute does not bar a tort action; rather it 

merely may not be introduced as evidence in such action. 

The dissenting opinion concludes that the General Assembly 

intended to replace entirely the tort remedy for those injured 

children. Therefore, a guilty wrongdoer who pays his $50 fine 

is immune from any further consequence, while his injured child 

victim is left without the previously available redress for her 

grievous injuries. I do not believe the General Assembly 

intended such an inequitable result when it enacted this 

remedial statute to protect the safety of children. 

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