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Cop, town don’t get immunity in wreck

Judge: There wasn’t any emergency

A Waverly town policeman took time to shave before responding to a homicide call from his Prince George County home.
That delay was inconsistent with any interest the state might have had in his driving more than 20 miles per hour over the speed limit to get to the scene, Prince George Circuit Judge Sam Campbell concluded in denying a plea of sovereign immunity by the policeman and the town.

The speed of the policeman, Alfred Mitchell, was a factor in a crash that killed one man and seriously injured two others.

According to evidence at a hearing on the sovereign immunity issue, Vernon T. LaFever was driving a tow truck eastbound in the left lane of U.S. 460 on June 13, 2006. David Barnes, an employee of the towing company, and a passenger, Gill Lake, were also in the truck.

As Mitchell came up rapidly behind the truck with the police cruiser’s lights flashing, LaFever started to move to the right lane. Mitchell attempted to pass the truck on the right. LaFever turned back to the left, skidding in the right lane as he did so, and lost control of the truck.

The vehicle swerved across the westbound lanes and struck a tree. LaFever was killed instantly, Barnes lost his right leg and has incurred medical bills of more than $1.1 million, and Lake suffered breaks in the major bones in each leg, in addition to other injuries.

Barnes, Lake and the administrator of LaFever’s estate filed suit against Mitchell, and Lake sued Mitchell and LaFever’s estate.
Lake, who is represented by Petersburg lawyer Charles H. Cuthbert Jr., settled his claims against Mitchell and LaFever for $1.2 million before Campbell issued his opinion last month. The judge had delayed setting a trial date until ruling on the sovereign immunity motion.

Hunt H. Whitehead represents LaFever’s estate in the claim against Mitchell and John C. Shea represents Barnes.

Mitchell contended that sovereign immunity barred the claims against him and the town. He said he was responding to an emergency in a manner justified by the circumstances.

Campbell disagreed. He first noted that the issue of sovereign immunity is a question of law for the court but that disputed material facts on the issue must be decided by a jury.

In this case, any facts that were in dispute were not material or were not of a nature that reasonable jurors could reach more than one conclusion, he said in Lake v. Mitchell (VLW 008-8-137).

Whether Mitchell had activated his siren was not material, but the overwhelming evidence was that he did not activate it until he engaged the tow truck, Campbell wrote.

There was no dispute that Mitchell exceeded his authority by driving more than 20 mph over the speed limit when the general orders of the police department restricted the speed of vehicles to that degree even in emergency situations, Campbell said.
Moreover, because Mitchell took the time to shave before leaving for the homicide scene, “reasonable jurors could come to no other conclusion that Mitchell did not believe an emergency existed,” Campbell said.

Campbell then applied the four-prong test of James v. Jane, 221 Va. 43 (1980), for sovereign immunity.

He found that Mitchell was involved in “ministerial driving,” traveling to a location to perform a governmental function that did not require an emergency response.

“Mitchell’s judgment and discretion [were] not integral to the Common-wealth’s interest or function,” Campbell said. “When employing law enforcement officers the Commonwealth’s interest and function is to protect the public safety.

“Driving down a major roadway at excessive speeds to the scene of a non-emergency, where the preservation of human life is not a concern, is not integral to furthering this interest and function,” Campbell concluded.

Cuthbert said he is aware of only one other sovereign immunity traffic case, Reid v. Hammer (VLW 003-8-139), in which the mental state of the police officer was an issue. In Reid, a Richmond Circuit Court judge ruled that a police officer reasonably believed was performing a governmental function when he was dispatched to a call of a child locked inside a vehicle.

The call was cancelled, but the officer learned of the cancellation only after he had collided with a school bus.

Campbell found the opposite to be the case for Mitchell by ruling that the officer could not have honestly believed he was responding to an emergency, Cuthbert said.

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