Virginia Lawyers Weekly//April 26, 2010
Virginia Lawyers Weekly//April 26, 2010//
The 33-year-old decedent, Ashley McIntosh, drove her car out of a shopping center on a green light and was proceeding eastbound through an intersection. A northbound police car operated by the defendant, Fairfax County police officer Amanda Perry, went through the red light and struck the passenger side of the decedent’s car.
Defendant was en route to the scene of a reported fight at a Fairfax County grocery store. Decedent was ejected and died of her injuries the following day. At the time of her death, the decedent was working as a kindergarten teachers’ assistant. She is survived by her parents and one adult sister. An investigation revealed that while the defendant had her emergency lights on, she was not operating her siren. She was charged with reckless driving but later acquitted in a bench trial.
Decedent’s parents, on behalf of her statutory beneficiaries, sued the defendant, alleging she was negligent and grossly negligent for failing to obey traffic laws requiring her to obey speed limits and stop for red lights, requiring her not to drive recklessly or too fast for conditions, requiring her to maintain proper control, requiring her to activate her emergency lights and siren and to exercise due regard for safety when responding to an emergency and by failing to follow police procedures in responding to an emergency call.
Defendant filed a Plea in Bar asserting that she was entitled to qualified sovereign immunity. She contended that she was a government employee performing a governmental function requiring the exercise of judgment and discretion and could not be held liable unless she was grossly negligent. Specifically, she argued that she was responding to an emergency and that under Virginia law, police are exempt from traffic laws in an emergency.
The defense of qualified sovereign immunity came before the court for an evidentiary hearing on the defendant’s Plea in Bar in August 2009. At the evidentiary hearing, defendant admitted that she used the equipment only intermittently while responding to the call and claimed that she was trained on this “hybrid” technique by other officers.
A video recorder in the defendant’s cruiser, which recorded the collision, showed that defendant failed to use lights and siren continuously as required during an emergency response and to slow for the red light. The recorder showed that defendant had not activated her lights and siren for the first several miles of her trip responding to the fight call and only activated them intermittently as she passed through the final three traffic lights before impact.
Defendant also testified that as she traveled those several miles responding to the fight call, she had not run through any red lights other than the one where the collision occurred.
Plaintiff’s counsel disputed defendant’s contention that she was engaged in an emergency response, and argued, under the decision in Friday-Spivey v. Collier, 268 Va. 384, 601 S.E.2d 591 (2004), that the defendant’s after-the-fact claim that she thought the fight call was an emergency did not actually make it an emergency. Plaintiff’s counsel introduced the Fairfax General Orders and defendant’s police academy training materials all showing that emergency lights and siren was required when responding to an emergency. Defendant’s emergency vehicle operation center instructor also testified at trial that “hybrid” driving is not taught or consistent with the general orders and that he had never heard of such a thing until this case.
Judge R. Terrence Ney ruled that Perry was not entitled to the defense because the call did not constitute an emergency. The legal result of that ruling was that the plaintiffs had to prove only simple negligence. In December 2009, subsequent to the successful ruling on the Plea in Bar, plaintiffs moved for and obtained summary judgment on the simple negligence claim relying upon extensive request for admissions which included admissions that Perry ran the red light and that McIntosh entered the intersection on a green light.
As Perry also asserted the defense of contributory negligence, plaintiffs were prepared to present evidence that Perry’s conduct was willful and wanton, as well as challenging the claim of contributory negligence. After several rounds of negotiations between counsel, a tentative settlement was reached which was then presented to and formally approved by the 10-member Fairfax County Board of Supervisors.
Type of action: Wrongful death
Injuries alleged: Fractured skull, brain death
Name of case: John McIntosh and Cynthia Colasanto, Co-Administrators for the Estate of Ashley McIntosh, Deceased v. Amanda Perry
Court: Fairfax Circuit Court
Case No.: 2009-00354
Name of judge: R. Terrence Ney
Special damages: Medical bills – $29,000; funeral expenses – $14,000
Verdict or Settlement: Settlement
Date: Feb. 5, 2010
Experts: Alan Michaelis, ALCAR Multimedia, Virginia Beach, assisted in the preparation and presentation of exhibits and demonstrative aides.
Insurance carrier: Fairfax County – self insured for $1,000,000; Virginia Association of Counties Group Self Insurance Risk Pool – excess coverage.
Plaintiff’s attorneys: Thomas J. Curcio, Alexandria; Roger T. Creager, Richmond