USCA4 Appeal: 23-1702 Doc: 38 Filed: 11/12/2025 Pg: 1 of 12

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1702

KAITLIN VASTERLING,

Plaintiff – Appellee,

v.

ALISON DIRLE,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Lawrence Richard Leonard, Magistrate Judge. (2:22-cv-00339-LRL)

Submitted: October 9, 2025 Decided: November 12, 2025

Before AGEE, THACKER, and RICHARDSON, Circuit Judges.

Reversed and remanded with instructions by unpublished per curiam opinion.

ON BRIEF: John D. McGavin, Kara A. Schmidt, MCGAVIN, BOYCE, BARDOT, THORSEN & KATZ, P.C., Fairfax, Virginia, for Appellant. Robert J. Haddad, RULOFF, SWAIN, HADDAD, MORECOCK, TALBERT & WOODWARD, P.C., Virginia Beach, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1702 Doc: 38 Filed: 11/12/2025 Pg: 2 of 12

PER CURIAM:

In this diversity action, Defendant-Appellant Alison Dirle appeals a $266,906.03

verdict in favor of Plaintiff-Appellee Kaitlin Vasterling, who alleged that Dirle’s conduct

preceding a severe car accident rose to the high standard of willful and wanton negligence

under Virginia law. For the reasons set forth below, we reverse the district court’s decision

and remand the case for entry of final judgment in favor of Dirle.

I.

Independence Boulevard is a major throughfare in Virginia Beach, intersected at

various points by crossing medians that allow drivers space to pause between lanes and

await clearances in traffic to complete their traversal. *

On February 16, 2022, Vasterling traversed the northbound half of Independence

Boulevard and entered the median. As Vasterling entered the road’s southbound lanes, she

saw another vehicle approaching rapidly, but believed she had time to cross. Moments

later, Dirle’s SUV slammed into Vasterling’s minivan while traveling nearly 80 miles per

hour. The impact sent Vasterling’s vehicle spinning into a third vehicle, severely injured

Vasterling’s son, and caused Vasterling to suffer minor physical injuries and acute

emotional trauma. The speed limit at the point of impact was 45 miles per hour.

* The district court made these undisputed factual findings following trial, which neither party contested. See Vasterling v. Dirle, No. 2:22CV339,

, at *7 (E.D. Va. May 30, 2023) (“Neither party disputes these facts.”).

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Dirle, who traveled daily on Independence Boulevard to her workplace, had

attempted to pass another vehicle and reenter the road’s lefthand lane, where the accident

occurred. Evidence established that Dirle accelerated to 81 miles per hour in three-tenths

of a mile as she attempted to pass the other vehicle, and that she had slowed to 76 miles

per hour immediately before the collision. Dirle testified that she was personally familiar

with the area, had attended the local school Vasterling was driving toward at the time, and

had grown up in the surrounding neighborhood. The school, Shelton Elementary, is located

approximately 0.2 miles from Independence Boulevard on Shelton Road. There were no

school zone or crossing signs on the stretch of Independence Boulevard where the crash

occurred.

The crash destroyed the rear of Vasterling’s minivan, dislodged her son from his

seat, and left him bloodied, immobile, and buried in debris. He could not be removed from

the vehicle until emergency services arrived and transferred him to a nearby hospital to be

treated for severe injuries. Vasterling experienced minor physical injuries herself but now

suffers acutely from “substantial and ongoing” emotional trauma, including panic attacks

and nightmares, general agitation and inconsolability, tendencies to self-isolate, and a

newly-developed stutter. J.A. 193.

Following the crash, Vasterling, then a citizen of North Carolina, sued Dirle in the

Eastern District of Virginia under diversity jurisdiction.

(a). Vasterling

alleged a single count of willful and wanton negligence against Dirle, and sought

$367,548.97, plus interest, in compensatory damages. Vasterling made no separate claim

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for negligence or gross negligence, resting her only theory of liability on willful and wanton

negligence.

At a bench trial, the district court found Dirle liable for willful and wanton

negligence due to her extreme conduct and the resulting injury, which it concluded

demonstrated “an egregiously reckless disregard for the rights of others.” Vasterling,

, at *10. Dirle was ordered to pay $266,906.03 in damages plus post-judgment

interest. In making its decision, the court held that Dirle’s “knowledge of the existing

conditions, and her reckless indifference to the consequences of her actions, pushe[d] her

conduct to willful and wanton negligence.” Id. at *9. In the court’s view, this knowledge

entailed, essentially, a general understanding of traffic conditions on Independence

Boulevard, awareness of the school’s location, and the common sense that traveling at 81

miles per hour in an urban area “does not go unnoticed and does not happen due to mere

inattention.” Id. at *4. In totality, the court concluded that Dirle’s conduct amounted to

“knowledge of the danger involved in her extraordinary speeding based on her knowledge

of the existing conditions,” and rose to willful and wanton negligence. Id. at *9; see id. at

*4.

Dirle noted a timely appeal, and this court has jurisdiction under

.

She raises a single issue on appeal, arguing that her conduct, as a matter of law, fails to

meet the standard for willful and wanton negligence under Virginia law. We agree.

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II.

We review the district court’s judgment “under a ‘mixed standard of review,’

reviewing factual findings for clear error and conclusions of law de novo.” Harrell v.

DeLuca,

(4th Cir. 2024) (quoting Roanoke Cement Co. v. Falk Corp.,

(4th Cir. 2005)). A federal court in diversity jurisdiction “must apply

the law as announced by the highest court of that state or, if the law is unclear, as it appears

the highest court of that state would rule.” Brendle v. Gen. Tire & Rubber Co.,

(4th Cir. 1974). Last, we review de novo “a district court’s determination of state

law.” Grimmett v. Freeman,

(4th Cir. 2023) (cleaned up).

Virginia law recognizes three degrees of negligence: simple negligence, gross

negligence, and willful and wanton negligence. Harris v. Harman,

(Va.

1997). “Simple negligence is the failure to use the degree of care an ordinary person would

exercise to avoid injury to another.”

Gross negligence “is action which shocks fair-

minded people, but is less than willful recklessness.”

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.”

(quoting Griffin v. Shively,

, 212–13 (Va. 1984)). “Gross negligence and

ordinary negligence differ from one another only in degree, but . . . willful and wanton

conduct . . . differs in kind from both of them. . . . [It] convey[s] the idea of purpose or

design, actual or constructive.” Infant C. v. Boy Scouts of Am., Inc.,

(Va. 1990) (cleaned up).

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Expressly, “[w]illful and wanton negligence, unlike gross or ordinary negligence,

requires an actual or constructive consciousness that injury will result from the act done or

omitted.” Alfonso v. Robinson,

(Va. 1999). “The hallmark of this

species of tortious conduct is the defendant’s consciousness of his act, his awareness of the

dangers or probable consequences, and his reckless decision to proceed notwithstanding

that awareness.” Curtis v. Highfill,

, 324 (Va. 2020) (quoting Infant C.,

). “However, ill will is not a necessary element of willful and wanton

negligence.” Alfonso,

. “Each case raising an issue concerning the

sufficiency of a claim of willful and wanton negligence must be evaluated on its own facts.”

Green v. Ingram,

(Va. 2005) (quoting Woods v. Mendez,

(Va. 2005)). “An actor guilty of willful and wanton conduct intends his act, but

not the resulting harm.” Infant C.,

.

“If reasonably fairminded men may differ as to the conclusion of fact to be drawn

from the evidence, or if the conclusion is dependent upon the weight to be given the

testimony, a jury is the proper tribunal to decide the question of negligence . . . . But where

fair-minded men cannot differ as to the conclusion, it becomes a question of law for the

court.” Steele v. Crocker,

(Va. 1951). In other words, whether conduct

rises to willful and wanton negligence is to be determined by the factfinder, unless the

conduct fails to meet the standard as a matter of law, in which case, the decision remains

with the court. Griffin,

(“Generally, negligence . . . only become[s] [a]

question[] of law to be determined by a court, when reasonable minds could not differ.”).

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Particularly pertinent to this appeal, the Supreme Court of Virginia has advised

caution in applying any standard that would “turn every intentional moving traffic violation

into a case of willful and wanton negligence.” Harman, 486 S.E.2d at 101–02. “Traffic

laws are established for the safety of those who are on the public roads. Every time a driver

intentionally violates a traffic law, by definition, the violator is on notice that other users

of the road may be injured as a result of his violation.” Id. at 102. Thus, such conduct alone

generally fails to rise to the standard of willful and wanton negligence, absent some

significant aggravating factor. Id.

A survey of relevant case law suggests the Supreme Court of Virginia has found

such an aggravating factor—or found the claim suitable for a factfinder to determine—in

three general situations. Those are (1) circumstances involving drivers that have received

specialized training and acted in contravention of that training; (2) circumstances

suggesting malice or an intent to harm; and (3) circumstances involving intoxicated drivers

and egregious traffic violations, often after receiving warnings as to the hazardous nature

of their driving. Apart from these contexts, claims for willful and wanton negligence

generally fail as a matter of law.

First are cases that involve a defendant acting in contravention of some specialized

training that should have placed the defendant on notice as to the danger and wrongness of

his or her conduct. This genre of cases has, for instance, involved truck drivers who failed

to follow specific safety protocols and caused harm as a result. See, e.g., Alfonso, 514

S.E.2d at 616–19 (holding that a failure to place flares and reflectors behind a stalled

tractor-trailer, which another driver then crashed into, was a dereliction of protocol and

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willful and wanton negligence). Dirle had no such special training, so this line of case law

is inapposite.

Second, some decisions have found willful and wanton negligence where a

defendant acts with malice or intent to harm. These circumstances are rare and include, for

example, swerving into and out of a plaintiff’s lane with apparent intent to run the plaintiff

off the road; or intentionally running down a pedestrian plaintiff and striking him at 20

miles per hour. See Etherton v. Doe,

, 88–89 (Va. 2004); Friedman v. Jordan,

, 186–87 (Va. 1936). There is no direct or indirect evidence that Dirle intended

to strike Vasterling or otherwise conducted herself maliciously. Rather, as the district court

found, Dirle “wanted to get out in front” of another vehicle “which cut her off” and avoid

competing with vehicles merging onto Independence Boulevard. Vasterling,

, at *10. Dirle expressly testified her intent in making such maneuvers was to enter

the lefthand lane and avoid “oncoming traffic that merges from Northampton Boulevard

onto Independence[.]” J.A. 157. These facts fail to suggest malice or harmful intent.

Third, and most frequently, are cases in which the defendant engaged in some

egregious traffic violation while intoxicated, after being made specifically and immediately

aware of the hazardous nature of their conduct.

More precisely, Virginia courts have held that defendants who receive and ignore

notice as to the danger of their driving immediately prior to an accident are more likely

culpable of willful and wanton negligence. See, e.g., Booth v. Robertson,

(Va. 1988) (holding that the defendant was made aware of his reckless driving prior to a

crash when a truck swerved to avoid a collision, honked its horn, and flashed its lights);

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Clohessy v. Weiler,

, 96–97 (Va. 1995) (opining that willful and wanton

negligence requires “a finding that the defendant had prior knowledge of specific

conditions that would likely cause injury to others” and rejecting the argument that general

knowledge an area was residential could suffice as a driver’s knowledge of specific

conditions preceding a pedestrian being struck).

In Booth, a defendant entered a highway from the wrong direction with a blood

alcohol content of 0.22, sped into oncoming traffic while ignoring horns and flashing lights

before narrowly avoiding a crash with a semi-truck, and eventually collided head-on with

the victim a half-mile down the road.

. Conduct of such nature, the Supreme

Court of Virginia opined, was “so willful and wanton as to evince a conscious disregard of

the rights of others, as well as malicious conduct,” and thus met the high standard of willful

and wanton negligence.

.

A decade later, in Webb v. Rivers, the Supreme Court of Virginia reaffirmed its

conclusion that a defendant must commit truly egregious traffic violations while

intoxicated and alerted to the danger of their conduct to be found willfully and wantonly

negligent.

, 362–63 (Va. 1998). In Webb, an “entirely intoxicated”

defendant drove past a red light at 90 miles per hour in a 25 miles-per-hour zone and

slammed into plaintiff’s vehicle.

. The Court concluded such conduct was

sufficiently egregious to rise to willful and wanton negligence because it “evinced a

conscious disregard of the rights of others.”

at 362–63.

Nonetheless, neglectful conduct by inebriated drivers often fails to rise to the level

of willful and wanton negligence. In Hack v. Nester, the defendant had two previous

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convictions for driving under the influence, drank most of a pitcher of beer before driving

his vehicle, drove on the wrong side of the highway at night without a left headlight,

allegedly suffered from night blindness, and killed another driver in a head-on collision.

(Va. 1990). The Supreme Court of Virginia concluded this conduct was

insufficient to constitute willful and wanton negligence, reasoning that because the

defendant’s blood alcohol content reflected a relatively low level of intoxication, and he

had not received express warnings as to the danger of his driving, he could not be held

willfully and wantonly negligent.

.

Time and again, the Supreme Court of Virginia has clarified that willful and wanton

negligence is a very high bar. See, e.g., Clohessy, 462 S.E.2d at 96–97 (deeming Clohessy’s

operation of a vehicle 10 miles over the speed limit in a residential neighborhood with a

fogged windshield and deactivated headlights when she struck a pedestrian no more “than

ordinary negligence”); Harman,

, 101–02 (finding that tailgating a

plaintiff at high speeds until both vehicles ran off the road was not willful and wanton

negligence); Puent v. Dickens,

(Va. 1993) (opining that a defendant

speeding while drunk and rear-ending plaintiff was “insufficient to justify a finding” of

willful and wanton negligence); Woods,

(holding that actively drinking

alcohol while driving with a “BAC level significantly greater” than required for a criminal

conviction and being aware of the dangers of falling asleep at the wheel was sufficient for

willful and wanton negligence).

From these cases, we can distill that where a driver is not intoxicated and engages

in dangerous, but only negligent, conduct, the driver will not be found to have committed

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willful and wanton negligence as a matter of Virginia law. The common theme in Virginia

case law is the confluence of incapacitated driving and extremely egregious traffic

violations beyond that of excessive speeding, coupled with express warning(s) as to the

danger of their conduct prior to the incident itself. This combination of factors, as seen in

Huffman, Booth, and Webb, creates the probability an accident will occur, and suggests

that such conduct is undertaken with conscious understanding of that probability.

Additionally, to the best of our research, the Supreme Court of Virginia has never held an

unintoxicated defendant willfully and wantonly negligent unless they ignored some

specialized training or acted with express or implied malice.

There is no evidence that Dirle was intoxicated at the time of the crash or suggesting

that malice may be implied to her conduct. Moreover, Dirle received no specific warnings,

be they from signage, other drivers, or another near incident. The district court found that

Dirle generally knew of traffic conditions in the area and should have been aware parents

would be crossing the median to deliver their children to the local school, and held this

sufficient to show conscious disregard for the rights of others. But under Virginia

precedent, these facts are insufficient to serve as specific warning of the potential danger

of one’s hazardous conduct so as to sustain a claim for willful and wanton negligence. See

Clohessy,

(requiring a defendant have “prior knowledge of specific

conditions that would likely cause injury to others) (emphasis added)).

In short, Dirle received no special training as a driver to inform her conduct, did not

act maliciously or so recklessly as to evince intent to harm or consciously disregard the

rights of others, was not intoxicated, and received no specific warnings or special notice as

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to the hazardousness of her actions. Her conduct fits no pattern of facts associated with

willful and wanton negligence in Virginia case law and qualifies only as simple or gross

negligence—claims Vasterling did not plead. Dirle’s undisputed conduct therefore fails to

satisfy the requirements of a willful and wanton negligence claim as a matter of law.

III.

For the above reasons, we conclude the district court erred, as a matter of Virginia

law, in ruling that Dirle was willfully and wantonly negligent in her conduct. Dirle was

entitled to such finding as a matter of law. We therefore reverse the district court’s

judgment and remand the case with instructions that the district court enter final judgment

in favor of Dirle.

REVERSED AND REMANDED WITH INSTRUCTIONS

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