In Evans v. Evans, 280 Va. 76 (2010), the Virginia Supreme Court upheld the right of a child to sue through one parent as next friend the other parent who injured the child by negligence in a vehicle crash. A father had put his 4 year-old in a portable foam seat in his 1972 pickup truck floor board before getting into a head-on collision, going offroad, and hitting a fence.
The Virginia Supreme Court in Evans reversed the trial judge’s decision that the child’s suit for common law negligence was barred by the father being guilty of negligence per se in the truck accident under Va. Code Ann. §46.2-1095. That statute provides Virginia drivers ensure a child under 8 years old be “properly secured in a child restraint device” meeting USDOT standards.
“[W]e conclude that the General Assembly intended preclusion of a per se negligence action based upon Code §46.2-1095 and 46.2-1098,” declared the Virginia Supreme Court, “but did not abrogate a common law action for negligence.” Id. at 85. Further, the Court advised the trial judge on remand of the Evans vehicle collision case: (1) “a child of four is not legally capable on contributory negligence”; (2) “in a suit by an infant to recover damages for personal injury, the negligence of a parent will not be imputed to his infant child”; and (3) “a four-year-old child is unable, as a matter of law, to mitigate her damages”. Id.