Present:   All the Justices

MARLON E. JOHNSON, ET AL.
                              OPINION BY JUSTICE A. CHRISTIAN COMPTON
v.   Record No. 982606                     November 5, 1999

CARLA M. CAMPBELL

               FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                         Thomas H. Wood, Judge

      Plaintiffs Marlon E. Johnson and Kaheen Sandridge filed

separate actions against defendant Carla M. Campbell seeking

recovery of damages as the result of personal injuries allegedly

received in a motor vehicle accident.     In virtually identical

motions for judgment, consolidated for hearing below, the

plaintiffs alleged they were injured while passengers in a motor

vehicle negligently operated by defendant that left a highway in

Augusta County shortly after midnight on August 13, 1997, and

collided with a tree.

      Responding, the defendant filed a grounds of defense,

counterclaim, and motion to dismiss in each action.       The

plaintiffs filed grounds of defense and demurrers to the

counterclaims.

      In the counterclaims, defendant made the following

allegations.    During the hours preceding the accident, she

participated with a group of young persons, including the

plaintiffs, in a card game at a private residence.     The rules of
the game required a player who "lost" to consume a specific

amount of beer.

     Defendant was 17 years of age at the time and several other

participants also were minors.   Plaintiffs Johnson and Sandridge

were 24 and 21 years of age respectively.

     According to the allegations, the plaintiffs "encouraged"

the minors, including the defendant, to consume beer and use

marijuana, which they supplied to her, so that defendant's eyes

became "red and she appeared to be under the influence of

alcohol."   Subsequently, plaintiffs "prevailed upon" defendant

to drive her automobile with the plaintiffs as passengers.    At

the time of the accident, plaintiff Johnson "distracted her by

making unwanted physical contact," causing her to lose control

of the vehicle.

     In the grounds of defense to the counterclaims and in

responses to requests for admissions, the plaintiffs admitted

they participated in the card game.   However, they denied

encouraging defendant to participate and denied supplying her

with beer or marijuana.

     In the motions to dismiss, the defendant asserted that

plaintiffs' actions were barred because each "plaintiff's injury

appears to arise as a consequence of his voluntary participation

in an illegal act."




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     Subsequently, after considering argument of counsel on the

issues raised in the pleadings, the trial court dismissed the

motions for judgment and the counterclaims.    The court concluded

that the plaintiffs voluntarily participated with defendant in a

card game involving the consumption of alcohol by all players,

including the minor defendant.   The court noted that simple

possession of alcohol by a minor is unlawful.   Code § 4.1-

305(A).   The court also noted that plaintiffs rode voluntarily

with defendant on a trip for their mutual benefit after she had

consumed alcohol, and that no person under the age of 21 may

lawfully operate a motor vehicle after she has consumed any

alcohol, Code § 18.2-266.1(A).

     The trial court decided that violations of the foregoing

statutes by a minor are acts of delinquency and that, by

voluntarily participating with defendant in the commission of

these acts, plaintiffs were guilty of contributing to her

delinquency in violation of Code § 18.2-371.    And, the trial

court ruled as a matter of law that there was a "causal

connection" between the illegal conduct and the accident

requiring dismissal of the actions.

     Upon the counterclaims, the trial court concluded that

defendant's allegations show "she voluntarily operated a motor

vehicle after consuming enough alcohol and marijuana to be a




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contributing cause" of the accident, and that "[t]his amounts to

assumption of risk as a matter of law."

       The trial court employed an odd procedure; it treated the

plaintiffs' demurrers to the counterclaims as motions to dismiss

and the defendant's motions to dismiss as motions for summary

judgment.   Nevertheless, even though the procedure below was

unusual, we can reach the merits of the appeal.

       The primary appellate issue is whether the trial court

erred in ruling that any illegal conduct in which the plaintiffs

may have participated was a proximate cause of the alleged

injuries as a matter of law.

       Virginia permits the employment of the so-called

"illegality" defense, which is based on the principle that a

party who consents to and participates in an illegal act cannot

recover damages from other participants for the consequences of

that act.    Lee v. Nationwide Mut. Ins. Co., 255 Va. 279, 282,

497 S.E.2d 328, 329 (1998); Zysk v. Zysk, 239 Va. 32, 34, 404

S.E.2d 721, 722 (1990); Miller v. Bennett, 190 Va. 162, 164-65,

56 S.E.2d 217, 218 (1949).   The consent must be "freely given

without fraud or duress."    Zysk, 239 Va. at 34, 404 S.E.2d at

722.   The main premise for the rule is "the idea that courts

will not assist the participant in an illegal act who seeks to

profit from the act's commission."    Id.




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     Repeatedly, this Court has insisted that, before the

defense can be successful, a causal relationship must be

established between participation in the illegal act and the

injuries or damage claimed.   For example, in Lee, in which we

affirmed the trial court's enforcement of the defense and in

which the requirement of causation was not an appellate issue,

we noted that the trial court held that the plaintiff

voluntarily consented to participation in the illegal act that

"resulted" in his injuries.   255 Va. at 282, 497 S.E.2d at 329.

     In Godbolt v. Brawley, 250 Va. 467, 463 S.E.2d 657 (1995),

we discussed the illegality defense, although the case was

decided on other issues.   We said that the participant's

intentional criminal act was not "the direct cause" of his

injury and that the facts of Godbolt differed from the facts in

cases like Zysk and Miller in which there was a direct cause-

and-effect link.   Godbolt, 250 Va. at 472, 463 S.E.2d at 660.

     In Miller, the Court said that, when the illegality defense

is applied in tort actions, the consent or participation in an

unlawful act by plaintiff precludes recovery for injuries

sustained "as a result of that act."   190 Va. at 165, 56 S.E.2d

at 219.

     We emphasize the requirement of direct causation, which the

trial court recognized, because defendant on appeal argues that

the injury need not be a proximate result of the illegal act.


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Instead, defendant contends, the injury merely must be "an

ultimate consequence" of the plaintiff's voluntary illegal acts.

The defendant is wrong, whatever a standard of "ultimate

consequence" may mean, for the reasons we have just outlined.

     Turning to the question whether any unlawful conduct of the

plaintiffs was a proximate cause of their alleged injuries as a

matter of law, we conclude that the trial court erred in so

ruling.

     As a preliminary matter, we will assume without deciding

that, contrary to the plaintiffs' contention, the requisite

level of "participatory" illegal conduct by plaintiffs is

present.   At this stage of the proceedings, the facts are in

dispute concerning whether the plaintiffs merely were present in

the defendant's company or whether they bought alcohol for

defendant, supplied alcohol to her, encouraged her to consume

alcohol, or persuaded her to drive a motor vehicle.   This issue

must be decided upon a full development of the facts, but we

will give the defendant the benefit of the doubt on this issue

at this juncture of the cases.

     Given the facts developed thus far, however, many of which

are disputed, a jury question has been presented on the issue of

proximate cause.   For example, furnishing alcohol to defendant

may be too remote an event to constitute proximate cause of the

plaintiffs' injuries.   See Williamson v. The Old Brogue, Inc.,


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232 Va. 350, 353, 350 S.E.2d 621, 623 (1986) (individuals, drunk

or sober, responsible for own torts and drinking intoxicant, not

furnishing it, is proximate cause of injury).    Indeed, the

motions for judgment did not claim that defendant's alcohol

consumption caused the accident; thus, at this stage of the

proceedings, the trial court erred in making a causal connection

between defendant's drinking and the accident.   Also, if

plaintiff Johnson distracted defendant "by making unwanted

physical contact," as alleged, there is the factual question

whether plaintiffs' prior illegal acts directly caused their

alleged injuries.   Consequently, we hold that the trial court

should not have dismissed the motions for judgment.

     Finally, defendant has assigned cross-error.     She claims

the trial court erred in dismissing the counterclaims.    We

agree.   Even if the defendant drove the vehicle after using

drugs and alcohol, as she alleges, and thus may have assumed the

risk of injury, the question remains whether that conduct was a

proximate cause of the accident in view of the disputed facts

about what actually caused her to lose control of the vehicle.

In other words, may a defendant assume the risk of "unwanted

physical contact" by driving after consuming intoxicants?

     Thus, the judgments of the trial court in these two cases

will be reversed and the cases will be remanded for further

proceedings on the motions for judgment and the counterclaims.


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    Reversed and remanded.




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