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Making a Case for Punitive Damages in Virginia

Punitive damages are extra compensation given in civil cases to punish someone for extremely reprehensible behavior. They serve as an example and a warning to discourage others from doing the same thing. In Allstate Ins. Co. v. Wade, 265 Va. 383 (2003), the Virginia Supreme Court explains in its ruling that a defendant’s behavior has to be more egregious than the standard for simple negligence in order for punitive damages to be awarded. In Virginia, you can claim punitive damages for negligent acts per statute or if the negligence rises to the level of willful and wanton negligence. Therefore, it is crucial to understand the three fundamental levels of negligence to establish that an action goes beyond ordinary negligence and qualifies for punitive measures.


In Virginia personal injury cases involving a motor vehicle, punitive damages can be submitted to the jury by statute or under common law.

Under Virginia Code § 8.01-44.5, if a defendant in a personal injury case injures someone from the operation of a motor vehicle and was intoxicated at the time with a blood alcohol concentration of 0.15 or higher, punitive damages can be claimed. Additionally, if the defendant unreasonably refuses to submit to a test of his/her blood alcohol concentration (BAC), then punitive damages can also be claimed. If someone is injured by a drunk driver, it is important to determine what their BAC was at the time of the crash to see if punitive damages can be recovered.

Types of Negligence in Virginia

Virginia recognizes three different types of negligence and closely scrutinizes them due to their legal distinctions and consequences. To claim punitive damages under Virginia common law, the plaintiff must establish the defendant acted with willful and wanton negligence.

Simple Negligence

Virginia Civil Model Jury Instruction 4.000 defines simple negligence as “the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances of this case.” A common example of this is a car rearending another vehicle in front of it because they were not paying attention. If the at-fault driver was using ordinary care under the circumstances, the accident would not have happened. Therefore, the driver causing the crash was negligent.

Gross Negligence

Virginia Civil Model Jury Instruction 4.030 defines gross negligence as “that degree of negligence which shows such indifference to others as constitutes an utter disregard of caution amounting to a complete neglect of the safety of [another person; another person’s property]. It is such negligence as would shock fair-minded people, although it is something less than willful recklessness.” Gross negligence requires the defendant to act with an “utter disregard of caution,” in other words, the defendant must affirmatively show that they disregarded the safety of others.  An example would be a driver speeding through an area with a lot of pedestrian traffic.

Willful and Wanton Negligence

Finally, willful and wanton conduct is defined in Virginia Civil Model Jury Instruction 4.040: “‘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 when the defendant is aware of his conduct and is also aware, from his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another.”

Making a Case for Punitive Damages in Virginia

In Virginia personal injury cases involving a motor vehicle, punitive damages can be submitted to the jury under common law. Common law is a term used to describe case law aka rulings from courts that set the precedent in defining what the law is.

Case Law

Ultimately in determining whether or not a defendant in your case committed willful and wanton negligence, you must look at the facts—IT IS ALL ABOUT THE FACTS!!!

The best way to understand this is to look at the case law and examples of where the Virginia Supreme Court held a defendant’s behavior to be so willful or wanton as to show a conscious disregard for the rights of others.

Booth v. Robinson, 236 Va. 269 (1988)- In the Booth case, the Virginia Supreme Court held that the defendant’s conduct was so willful or wanton that it showed a conscious disregard of the rights of others. In this case, the defendant drove the wrong way down Interstate-81, where an approaching tractor-trailer truck flashed its brights and blew a “constant blast” on his air horns. The defendant continued to drive at an excessive rate of speed down the wrong side of the roadway and struck the plaintiff’s vehicle head-on. The defendant subsequently had a BAC of 0.22 and pled guilty to driving under the influence. Due to the defendant voluntarily consuming enough alcohol to produce a BAC reading of .22, then driving down the wrong way of a highway, while being warned by others that he is driving down the wrong side of the road, is enough to show a reckless disregard of human life and establish a punitive damage claim. It is worth noting that this decision was made prior to Virginia Code § 8.01-44.5 being enacted, where the defendant’s high BAC would have been enough to establish a punitive damage claim today.

Doe v. Isaacs, 265 Va. 531 (2003)- In the Isaacs case, the plaintiff was rearended at a red light. The unknown (John Doe) defendant approached the plaintiff’s vehicle, appearing shaky on his feet and slurring his words. John Doe then pled with the plaintiff to not call the police and subsequently fled the scene. The Virginia Supreme Court stated that John Doe was likely intoxicated, did not keep his vehicle under proper control, and committed a felony hit and run, but conduct causing the crash was not so egregious to warrant a punitive damage claim. It is difficult to navigate a claim against an unknown driver who flees the scene. You can learn more about how to pursue a hit & run claim here.

Huffman v. Love, 245 Va. 311 (1993)- The defendant in the Huffman case was intoxicated, began driving and rearended a vehicle. The defendant subsequently continued to drive, crossed over the median, and collided with the plaintiff’s vehicle head-on. The defendant then fled the scene and was stopped by police three miles away. He could not talk, walk, or stand without assistance. The defendant’s BAC was 0.32%. The Court held that there was enough evidence to support a punitive damage claim. It is worth noting that this case also preceded Virginia Code § 8.01-44.5, where a BAC of over 0.15% is enough to establish punitive damages.

How Much is a Punitive Damages Claim Worth?

It depends on how egregious that facts are…but never more than $350,000. Unfortunately, under Virginia Code § 8.01-38.1, the amount of punitive damages awarded cannot exceed $350,000 in Virginia.

It is important to recognize that all of the aforementioned criteria are just to establish a cause of action for punitive damages in a personal injury case. This means that it ultimately is a jury decision. The jury must still decide if punitive damages should be awarded and if so, how much. This can vary greatly, from thousands to hundreds of thousands of dollars. Either party in a punitive damage case can show evidence of the wealth or lack thereof of a defendant. This is because punitive damages are to punish the individual, so a person earning $50,000/year vs. $250,000/year have different perceptions of what a financial “punishment” entails. Additionally, the plaintiff also has the argument that the punitive damage award should be high to deter others from committing the same act to help increase any verdict.


If you, your spouse, kids, or family member is injured by a drunk driver, it is important to contact experienced personal injury attorneys like us at Curcio Law in order to maximize your recovery.

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