Present: All the Justices 

DEBRA S. LEE, AS MOTHER AND NEXT 

FRIEND OF ROY JAMES LEE, A MINOR, 

ET AL. 

 OPINION BY JUSTICE ELIZABETH B. LACY 

v. Record No. 970970 February 27, 1998 

NATIONWIDE MUTUAL INSURANCE 

COMPANY 

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY 

George E. Honts, III, Judge 

 In this case, we consider whether the trial court 

erred in holding as a matter of law that the defense of 

illegality barred the claim for damages of a 13-year-old 

boy rather than submitting to the jury the issue of the 

boy's consent to the illegal act. 

Late in the evening of November 1, 1993, 13-year-old Roy 

James Lee locked his bedroom door and left his house, 

apparently through his bedroom window. His parents did not 

know he was gone. Lee went to the home of his friend, 

William Randall Slate, a high school freshman who was 16 

years old. Around 11:00 p.m., Lee called his girlfriend, 

12-year-old Jessica Lee Fisher, and told her to take the 

keys to her mother's car from the coffee table and meet Lee 

and Slate at the basement door of her house. Fisher's 

mother had already gone to bed. 

Fisher changed her clothes, got the keys, and met the 

boys as planned. She gave the keys to Lee who, in turn, 
gave them to Slate. When the group walked to Mrs. Fisher's 

car, they heard the motor running on a neighbor's car 

parked nearby. They decided not to take Mrs. Fisher's car 

at that time because they feared being discovered. 

Instead, Lee and Slate unsuccessfully tried to take a 

motorized bicycle parked nearby. The group then walked to 

Slate's house where they stayed for about an hour. 

When the three youths returned to Fisher's house, the 

motor of the neighbor's car was no longer running. Fisher 

got into the back seat of her mother's car and Slate got in 

the driver's seat. To avoid the possibility that Mrs. 

Fisher might hear the engine start, Lee pushed the car some 

distance away from its parking place. Lee then got into 

the front passenger's seat. For the next hour and a half, 

Slate drove the group around the area in Mrs. Fisher's car. 

Both Fisher and Lee knew that Slate had only a learner's 

driving permit. 

At some point, Fisher asked Slate to return to her 

home, and he agreed to do so. Around 2:00 a.m. on the 

return trip, Fisher noticed that Slate was driving at a 

speed of between 40 and 45 m.p.h. and asked him to slow 

down. She also observed a "loose gravel" sign. 

About one hour later, at 3:10 a.m., Virginia State 

Trooper Gene E. Ayers received a call to investigate an 

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accident on a portion of Route 605 that was under 

construction. The road at the accident location was an 

unmarked gravel surface 15 feet wide with ditches on both 

sides. When Trooper Ayers reached the accident scene, he 

found 270 feet of wavy tire marks in the gravel leading to 

one of the ditches. Mrs. Fisher's car was approximately 30 

feet off the road. Trooper Ayers found Fisher "in and out 

of consciousness" in the back seat of the car. Lee was 

outside the car, halfway between the car and the road. The 

temperature was below freezing and some of the blood on 

both Lee and Fisher had begun to freeze. Slate was not at 

the scene of the accident when Ayers arrived.

Lee suffered severe head injuries in the accident 

resulting in catastrophic, permanent brain damage, and 

permanent disability. 

 Lee's mother, Debra S. Lee, filed a motion for 

judgment against Slate on her own behalf and on behalf of 

Lee as his next friend. Since Slate was an uninsured 

motorist, Nationwide Mutual Insurance Company (Nationwide), 

Debra Lee's uninsured motorist insurance carrier, defended 

the action. Nationwide filed an answer and a special plea 

asserting the defense of illegality. At trial, on motion 

by Nationwide, the court struck Lee's evidence and held 

that, as a matter of law, Lee freely and voluntarily, 

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without coercion or duress, consented to participation in 

the illegal act that resulted in his injuries. The trial 

court entered judgment in favor of Nationwide. Lee 

appeals, claiming the trial court erred in its application 

of the illegality defense. 

The illegality defense is based on the principle that a 

party who consents to and participates in an illegal act 

may not recover from other participants for the 

consequences of that act. Miller v. Bennett, 190 Va. 162, 

164-65, 56 S.E.2d 217, 218 (1949). The defense will be 

applied to bar recovery if the evidence shows that the 

plaintiff freely and voluntarily consented to participation 

in the illegal act, without duress or coercion. Trotter v. 

Okawa, 248 Va. 212, 216, 445 S.E.2d 121, 123-24 (1994). As 

with other defenses, the party raising the defense has the 

burden to establish it. 

While none of our prior cases has involved the 

application of the defense of illegality to acts of a 

person younger than 14 years of age, Lee does not contend 

that the defense is unavailable in such cases. Nor does 

Lee dispute that taking Mrs. Fisher's car without 

permission was an illegal act. Rather, Lee asserts that 

the evidence presented conflicting factual issues as to 

whether Lee freely and voluntarily, without duress or 

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coercion, consented to participation in the illegal act, 

and, therefore, that the trial court should have submitted 

resolution of these issues to the jury rather than deciding 

them as a matter of law. In support of his position, Lee 

argues that the trial court's error was based on both its 

failure to apply a rebuttable evidentiary presumption that 

a person between the ages of 7 and 14 is incapable of 

consenting to an illegal act and its failure to consider 

the evidence in the light most favorable to Lee. However, 

Lee's position is not supported by either the record in 

this case or the law of this Commonwealth. 

Lee argues that minors between the ages of 7 and 14 are 

afforded the protection of certain rebuttable presumptions 

of incapacity when charged with criminal culpability, 

citing Law v. Commonwealth, 75 Va. 885, 889 (1881), or 

contributory negligence, citing Doe v. Dewhirst, 240 Va. 

266, 268, 396 S.E.2d 840, 842 (1990). The trial court, 

according to Lee, either should have applied those 

presumptions here or created and applied an ad hoc 

rebuttable presumption based on the circumstances of this 

case. We disagree. 

Neither of the above standards is applicable to a 

determination of whether a person has engaged in an illegal 

act, for purposes of the illegality defense. That 

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determination is an objective inquiry. See Zysk v. Zysk, 

239 Va. 32, 35, 404 S.E.2d 721, 722 (1990). However, 

whether the defense will be applied requires more than a 

simple showing that the plaintiff committed the illegal 

act. As we have said, the defendant must also prove that 

the plaintiff consented to the commission of the illegal 

act and engaged in it, freely and voluntarily, without 

duress or coercion. This evidentiary burden necessarily 

includes consideration of the maturity, intelligence, and 

mental capacity of the plaintiff, regardless of age. Given 

this burden of proof, the rebuttable presumption suggested 

by Lee would serve no additional purpose and would provide 

no additional protection to the minor plaintiff. Thus, 

there is no legal basis or persuasive rationale for 

imposing the type of presumption suggested by Lee, and the 

trial court correctly declined to do so. 

We now turn to Lee's assertion that the evidence of 

voluntary consent, duress, and coercion was in conflict, 

and therefore, the trial court should have submitted the 

issue to the jury. Viewing the evidence in the light most 

favorable to Lee, as we must when reviewing a motion to 

strike, Austin v. Shoney's, Inc., 254 Va. 134, 135, 486 

S.E.2d 285, 285 (1997); Meador v. Lawson, 214 Va. 759, 761, 

204 S.E.2d 285, 287 (1974), we conclude that the trial 

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court did not err in holding that reasonable persons could 

not disagree that Lee freely and voluntarily, without 

duress or coercion, consented to his participation in an 

illegal act. 

The record shows that Lee was capable of understanding 

the nature of his acts and had the ability to make choices 

about his behavior. At the time of the illegal act, Lee 

was almost 14 years old. He performed at an average level 

in school and was capable of better performance. His 

behavior at school was average, and he played on organized 

sports teams. He complied with his parents' directions not 

to ride a motorized bicycle under certain circumstances. 

While described as a "follower" in his relationship with 

Slate, there is no evidence to support a finding that Lee 

was incapable of withholding consent or making other 

choices regarding his behavior. 

With regard to the incident in question, the record 

shows that, outside the presence of Slate, Lee actively 

planned to take Mrs. Fisher's car and referred to the plan 

as "steal[ing]" the car when talking to Fisher. He told 

Fisher to take the keys, locked his bedroom door to avoid 

detection, and left his home through his bedroom window. 

He turned the keys over to Slate. Lee pushed the car away 

from Fisher's house to avoid detection and, according to 

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Fisher's testimony, during the ride in Mrs. Fisher's car, 

never tried to stop Slate, alter the way Slate was driving, 

or get out of the car.∗

Lee argues that his actions were taken, not freely and 

voluntarily, but under duress and coercion by Slate. Lee 

relies on Fisher's testimony that Slate was the "leader" 

and Lee the "follower," that Lee wanted to impress Slate, 

that Lee would not get into trouble unless Slate was 

present, and that Lee would "act differently" when Slate 

was around. Lee also relies on Fisher's testimony that 

when Lee called her to plan the taking of her mother's car, 

she heard Slate in the background directing Lee to "tell me 

if we didn't take Mom's car, then they were going to bust 

out the windshield." 

 This evidence suggests that when Lee was with Slate he 

engaged in activity which he might not have undertaken by 

himself or with others. This evidence does not, however, 

support a conclusion that the change in Lee's demeanor or 

his actions were the result of coercion or duress by Slate, 

or that Lee had no control over his actions when he was 

with Slate. Rather, the evidence suggests that Lee engaged 

in actions which he believed would impress Slate and keep 

 ∗

 Lee has no memory of the accident or the events 

surrounding it. 

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Slate as his friend. No expert evidence was presented that 

Slate's relationship with or influence on Lee in some way 

deprived Lee of his ability to make choices about his 

actions either on the night in question or at any other 

time. Therefore, we conclude that, based on the record, 

the trial court was correct when it decided that reasonable 

persons could not disagree that Lee consented to his 

participation in an illegal act and that the illegality 

defense barred his recovery for injuries sustained as a 

result of that illegal act. 

Accordingly, the judgment of the trial court will be 

affirmed. 

Affirmed.

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