Sovereign immunity plea fails in wreck caused by policeman – $2,220,000 Settlement

David Barnes, an 18-year-old male, was a front-seat passenger in a tow truck driven by his employer. The tow truck was traveling eastbound in the left lane of U.S. 460 in Sussex County on June 13, 2006. The defendant, Alfred Mitchell, a Town of Waverly police officer, was also traveling in the left lane, approaching plaintiff’s tow truck at high speed. According to witnesses, the vehicle’s lights were flashing, but no siren was sounding.

The tow truck driver was attempting to pass a tractor-trailer when defendant maneuvered through the gap and darted into the right lane in order to pass the tow truck on the right. As the tow truck driver continued to move right, he realized the defendant was also changing lanes and swerved left to avoid the impact, lost control, crossed the westbound lanes of Route 460 and struck a tree.

The driver was killed and the plaintiff was partially ejected from the truck. The tractor-trailer driver claimed that the defendant had begun his move to the right lane before the tow truck driver turned on his right turn signal and began moving to the right. Plaintiff’s claim against his employer driver was barred by worker’s compensation.

The defendant was in route from his residence to a homicide investigation in Waverly. He had been called at home by his dispatcher and chief, yet took time to shower, shave and dress in full uniform before leaving his home 37 minutes after the call.
The defendant filed a Plea of Sovereign Immunity. Plaintiff argued that the immunity decision hinged on issues of fact to which the plaintiff had a constitutional right to trial by jury. Judge Sam Campbell heard evidence on whether any material facts were in dispute on the limited issue of defendant’s qualified immunity plea.

Following that hearing, the court ruled in Lake v. Mitchell (VLW 008-8-137) that the defendant was not entitled to immunity. The only facts in dispute were not material to whether the defendant satisfied the four-prong test of James v. Jane, and the defendant failed to meet his burden of proof on all four prongs of as a matter of law, Campbell ruled.

A portion of the settlement was paid by the tow truck driver’s UM coverage at the mediation conducted by John H. OBrion before the immunity hearing. The defendant had $3 million in total coverage, from which the tow truck driver’s estate and another passenger were also paid.

Ron Feinman, of One World Structured Settlement, advised plaintiff’s counsel on a structure and secured an annuity with a lifetime payout of $6,687,232 including $1,000 per month for life, $10,000 per month for life beginning at age 55 and $450,000 divided into lump sum payments every five years between ages 25 and 50.

[08-T-176]

Type of Action: Personal injury
Type of Injuries: Lower leg fractures resulting in left above-knee amputation; left pelvic fracture; nasal fracture
Name of Case: David G. Barnes v. Alfred Mitchell
Court: Prince George Circuit Court
Case No.: CL07-01
Name of Judge: Samuel Campbell
Verdict or Settlement: Settlement
Amount: $2,220,000
Attorneys for Plaintiff: John C. Shea, Andrea J. Geiger and Louis D. Snesil, Richmond
Plaintiff’s Experts: W. Ken Katsaris – police procedure expert; David O. McAllister – accident reconstruction; Dr. Ajai K. Malhotra – trauma surgeon; Dr. N. Douglas Boardman – orthopedic surgery; Dr. Michael A. B. Aboutanos – trauma surgeon; Dr. Theresa M. Duane – trauma surgeon; Dr. Rao R. Ivatury – trauma surgeon; Dr. Andrea L. Pozez – plastic surgeon; Dr. William C. Walker Jr. – PM & R