A Defense of Blinding Sun Spoils the Claim of Qualified Immunity
Our concerns grew when we learned the ambulance driver himself claimed to be a victim—the victim of the blinding sun that, allegedly, prevented him from seeing the red light. But with a little thought, this defense became our offense. If the sun had really blinded the ambulance driver, why did he enter the intersection of a major highway without first determining whether the traffic light was red or green and whether it was safe to cross?
Also, we had a lucky break. A local television station sensed the injustice of what had happened and investigated. The result was a newscast lasting several minutes. The newscast included an interview with an eyewitness stating “I KNOW the siren was not on” and comments by a County employee, with shrouded face and electronically modified voice, stating ominously, “the County has blood on its hands.”
When Richard and I took in this wrongful death case, we thought the odds of prevailing were small. After all, it was against a County ambulance driver who merely ran a red light, broadsiding the decedent’s van. The ambulance driver claimed his lights and siren were activated (thereby qualifying for the protection offered by Va. Code § 46.2-920) and we were confident he would claim qualified immunity. Elliott v. Carter, 292 Va. 618 (2016), literally read, has made it impossible to establish the gross negligence exception to qualified immunity under most circumstances. The crash happened in a rural county not known for large verdicts. And there was only one statutory beneficiary—the 35-year-old son of the woman who had died. The son had graduated from high school with a special ed diploma, lived with his mother his entire life, and had no permanent employment.
We drafted the Complaint, alleging negligent breach of two non-discretionary, ministerial duties: to stop for a red light, and not to enter an intersection when the driver could not see ahead. A tortfeasor does not have qualified immunity from liability arising from acts of simple negligence in breaching a ministerial duty. See First Virginia Bank-Colonial v. Baker, 225 Va. 72 (1983) (“the negligence underlying the bank’s claim was misfeasance of a ministerial duty, and the cloak of sovereign immunity does not cover such torts”).
To encourage settlement and enhance the value of the claim, we did two things. First, before filing suit, we served multiple FOIA requests on the County’s Administrator. The Administrator objected to many of our requests but did produce two particularly helpful documents. One was the ambulance driver’s handwritten description of how the accident happened, given to the State Police at the accident scene: “As I approached intersection I slowed down as I couldn’t see [due to the sun glare]. Next thing I was in intersection with red light my side.” The second was the County’s Standard Operating Procedure #3004, stating that County ambulances “shall come to a full stop before entering a negative right-of-way intersection (red light, flashing red light, or stop sign), blind intersection, or any intersection where hazards are present and/or the driver cannot account for all oncoming traffic lanes.” Although these “private rules” do not, by themselves, establish the standard of care, they are evidence of the standard of care. Stevens v. Hospital Authority, 42 Cir. Ct. 321, 329-30 (Richmond Cir. Ct., 1991) (Judge Lemons, now Chief Justice Lemons):
There is no cause of action based upon private rules; however, these rules may be evidence as to the appropriate standard of care to be provided by the defendants. See Virginia Railway & Power Co. v. Godsey, 117 Va. 167, 83 S.E. 1072 (1915); Pullen v. Nickens, 226 Va. 342, 310 S.E.2d 452 (1983).
The second step we took to encourage settlement and enhance value was to prepare a settlement video featuring our liability expert—a 70 year old man with a bushy white mustache and a shock of hair to match who had dedicated his life to leading the Petersburg area rescue squad. The settlement video took the form of direct exam, including whether SOP #3004 stated the standard of care (it did) and whether the ambulance driver had any discretion in deciding whether to stop for the red light or because the sun blinded him (he did not). We sent defense counsel the settlement video before filing suit. We then filed suit in the county of residence of the ambulance driver—a venue thought to be more favorable than the rural county where the crash took place.
Once we filed suit, we subpoenaed the documents the County’s Administrator had identified in a privilege log in the FOIA dispute. The Administrator again objected, asserting the ambulance driver’s constitutionally guaranteed rights to privacy and against self-incrimination. In reply we relied upon Rakas v. Illinois, 439 U.S. 128, 133-134 (1978), stating, “’Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’” The trial court overruled most of the Administrator’s objections and ordered the Administrator to produce the ambulance’s black box data, documenting that the ambulance was travelling at approximately 30 miles per hour when it entered the major highway against the red light.
Meanwhile, the Commonwealth’s Attorney filed involuntary manslaughter charges against the ambulance driver. The civil case settled for $1,325,000 a few days before the criminal trial began. In the criminal bench trial, the ambulance driver was found guilty of involuntary manslaughter. In announcing his verdict, the trial judge dismissed the blinding sun defense with the comment, “That’s what you have a brake pedal for.”
In the civil case, a remaining issue involved the resolution of liens asserted by healthcare providers for medical care to treat the decedent’s fatal injuries. Richard and I took the position that those liens did not attach to the statutory beneficiary’s recovery but instead attached to the decedent’s estate. To resolve this issue definitively and efficiently, we served the registered agents of the lien claimants with notice of the wrongful death settlement hearing and in our notice stated we proposed to pay nothing to the lien claimants. As supporting authority we cited Liberty Corp. v. NCNB National Bank, 984, F.2d 1383, 1388-1389 (4th Cir. 1993) (applying NC law) (“[t]he right to recover for wrongful death [under the applicable North Carolina statute] is not, however, a right that ever belonged to Bristow [the decedent] or to his estate”); Bagley v. Weaver, 211 Va. 779, 782, 180 S.E.2d 686, 689 (1971), stating that the recovery in a wrongful death action “is for the benefit of certain designated beneficiaries and is free from debts and liabilities”); Wilson v. Whittaker, 207 Va. 1032, 1036, 154 S.E.2d 124, 128 (1967), stating “that in an action for wrongful death the personal representative of the deceased sues primarily as trustee for certain statutory beneficiaries and not for the general benefit of the decedent’s estate;” Patterson v. Anderson, 194 Va. 557, 567, 74 S.E.2d 195, 201 (1953), stating that the plaintiff in a wrongful death action “does not act ‘in his general right of personal representative. * * * He sues not for the benefit of the estate, but primarily and substantially as trustee for certain kindred of the deceased, who are designated in the statute.‘” At the wrongful death settlement hearing the lien claimants did not appear. The trial judge agreed with us as to the law and entered a final order awarding nothing to the lien claimants.
Here are the take-aways as I see them:
- Use the VFOIA early and often to gather key public records before filing suit.
- If you anticipate the defendant will claim qualified immunity, identify and plead a non-discretionary, ministerial duty negligently breached by the defendant. This avoids the defense of qualified immunity.
- When the defense argues that private rules do not establish the standard of care, cite Stevens v. Hospital Authority, 42 Cir. Ct. 321, 329-30 (Richmond Cir. Ct., 1991) (Judge Lemons) for the proposition that private rules can be some evidence of the standard of care. (You will need your expert to say so when you get to trial.)
- In a wrongful death action, remember that liens for medical treatment of the decedent are liens on the decedent’s estate and not liens on the recovery of the statutory beneficiaries (at least if you do not claim the corresponding medical bills in your wrongful death complaint).
- An efficient way to resolve inapplicable liens is to hold a hearing on the issue after giving notice to the lien claimants that you propose to pay them nothing.