Virginia Lawyers Weekly VA Lawyers Weekly
On July 17, 2006, at 11:30 p.m., Robert L. Allen and Juanita J. Allen were killed when their Ford Ranger was struck by a Ford Crown Victoria police cruiser operated by a City of Petersburg police officer. At the time of the accident, the police vehicle was traveling eastbound in the right lane of Washington Street, and Mr. Allen was crossing Washington Street. Both Mr. and Mrs. Allen died at the scene.
At the time of the accident, the police cruiser did not have its siren or blue flashing lights in operation. The officer admitted he never applied his brakes. He testified on deposition that he was traveling 65 mph in a 35 mph zone. There was eyewitness evidence the officer was traveling about 80 mph as he approached the scene.
Shortly before the accident, the Petersburg police officer involved had received a call to assist at a “disturbance” at the Croatan Apartment complex. The dispatcher instructed the officer to proceed to the scene pursuant to Code One. Under the “Emergency Vehicle Operation” directive adopted by the Petersburg Police Department, officers responding to “Code One” are instructed “to obey all traffic regulations and drive in a normal manner to the scene using the most direct route.”
Officers dispatched under “Code 2” may activate their vehicle’s blue flashing lights. Officers directed to a scene under a “Code 3” emergency may activate both lights and siren and travel at speeds in excess of the prevailing speed limit. They may also ignore traffic light signals if they exercise due care while doing so. The directive also provides that “siren, as well as blue light MUST be used if exceeding the speed limit”. The defendant police officer testified on deposition that he was familiar with these protocols.
Several weeks before the accident, the Petersburg Police Department had issued a special directive ordering that any time an officer was dispatched to Croatan, a complex known to be dangerous, the responding officer should have two other officers on the scene with him. On the night of the accident, three officers, including defendant, were dispatched to Croatan. An officer other than the defendant arrived at Croatan first and reported his presence there over the radio. Defendant heard the radio report. On deposition, he testified that he began to increase his speed after hearing the radio report because he was concerned that the officer was already on the scene in a dangerous area without backup. In the defendant’s mind, because the officer at the scene was in a dangerous situation, he needed to get to the scene as quickly as possible.
Defense counsel filed a Special Plea of Sovereign Immunity in both cases moving to dismiss Count 1 of Plaintiff’s Complaint which alleged simple negligence. Defense counsel argued that the defendant police officer and the city were entitled to sovereign immunity because the defendant police officer’s action in increasing his speed involved judgment and discretion.
Judge Baskervill sustained the Special Plea and dismissed Count 1 with prejudice. The actions were allowed to proceed as to Count II, which alleged gross negligence. In her letter opinion dated Feb. 1, 2008, Judge Baskervill framed the issue before her as follows, “whether {the officer’s} driving at the time of the loss involved judgment of discretion. If so, {the officer} is entitled to the protection of sovereign immunity under the four factor test set forth in James v. Jane….” Judge Baskervill distinguished the case of Friday-Spivey v. Collier, 268 Va. 384 (2004) and held that the facts of the Allen cases fell within the parameters of Colby v. Boyden, 241 Va. 125 (1991). She concluded that the officer’s “act of driving involved the exercise of discretion and judgment, therefore meeting the fourth factor of the test for sovereign immunity.”
At the time of their deaths, Robert and Juanita Allen were 71 and 75 respectively. They had four adult children, one of whom lived with them because he was disabled and dependent on them for support. The other children lived nearby and had a close relationship with their parents. After two attempts at mediation and shortly before the Juanita Allen case was scheduled for trial, the parties agreed to settle the two cases for $1,200,000 each. VML, with a $1,000,000 single limit policy, paid $500,000 in each case. Ace paid $700,000 in each case.
[08-T-106]
Type of action: Wrongful death
Injuries alleged: Two wrongful deaths
Name of cases: Timothy Wayne Allen and Jacqueline Allen Dance, Administrators of the Estate of Robert Linwood Allen, Deceased v. The City of Petersburg, et al.; Timothy Wayne Allen & Jacqueline Allen Dance, Administrators of the Estate of Juanita Allen, Deceased v. The City of Petersburg, et al.
Court: Petersburg Circuit Court
Case Nos.: CL07-302 and CL07-303
Name of judge: Pamela Baskervill
Mediator: John H. OBrion Jr.
Special Damages: Robert Allen Sr., dec.: $8,958.50 funeral bill; Juanita Allen, dec.: $7,260.75 funeral bill
Verdict or Settlement: Settlement after mediation
Amount: $1,200,000 for each case $2,400,000 total for both cases
Date: May 30, 2008 (date of wrongful death settlement hearings)
Insurance Carriers: VML Insurance Programs, Ace Insurance Company
Plaintiffs’ Attorneys: Paul D. Hux, Petersburg; P. Christopher Guedri and Douglas A. Barry, Richmond
