Wilkins v. LattimerWilkins v. Lattimer
By
Background
For familiar reasons, the facts are stated in the light most favorable to the plaintiff, who is the nonmoving party. The facts from the underlying case are tragic. On January 5, 201u, Justin Lamar Davis was transferred to Central State Hospital (“CSH”). On February 16, 2010, George Phillips was also admitted to CSH while awaiting prosecution for attempted capital murder. While at CSH, Phillips threatened Davis, and on February 24,2010, Philips stated to the hospital staff that he would not give Davis another warning and “[Davis] will end up flying out of here in a helicopter to a hospital.” On February 25,2010, Phillips attacked Davis by tackling him to the floor. On the same day, Davis met with members of the treatment team and asked to be moved because he felt threatened by Phillips. However, the staff ultimately decided not to move Davis, and on the evening of February 27, 2010, Phillips entered Davis’s room and strangled Davis to death.
Charge Nurse Lawrence Harris was responsible for assigning staff as hall monitors to conduct monitoring checks on patients in their rooms. Essence Thompson, a Forensic Mental Health Technician, was assigned by Harris to conduct the monitoring checks on patients every 15 minutes. Thompson was also assigned to sit in a chair leading to the corridor in order to observe patient movements. Rather than monitoring the patients at the time of Davis’s strangulation, Thompson and Harris were watching television. On October 17, 2011, Phillips pleaded guilty to Davis’s murder in the Circuit Court of Dinwiddie County.
Defendants undertook representation of the Plaintiff in late September or early October of 2011. On February 27, 2012, the Defendants filed suit on behalf of the Plaintiff in the United States District Court for the Eastern District of Virginia. However, after a motion to dismiss was filed, the Defendants filed an amended complaint leaving Vicki Montgomery and unidentified employees as the Defendants in the action. The Defendants then withdrew their motion to dismiss and filed a motion for summary judgment, which was granted, and the case was dismissed. The Defendants appealed the case to the United States Court of Appeals for the Fourth Circuit, and the district court was affirmed.
The Standard of Review
A plea in bar is a defensive pleading that reduces the litigation to a single issue of fact which, if proven, creates a bar to the suit. Weichert Co. v. First Commercial Bank,
Discussion
The Defendants assert that sovereign immunity under Code § 8.01-195.3(4) is absolute, and even if it were not absolute, that Harris and Thompson were not grossly negligent. The Plaintiff, on the other hand, does not believe that the Court can make a determination as to whether sovereign immunity applies at all.
A. Sovereign Immunity
The Virginia Tort Claims Act, at Code § 8.01-195.3(4), provides in pertinent part:
Notwithstanding any provision hereof, the individual immunity of judges, the Attorney General, attorneys for the Commonwealth, and other public officers, their agents, and employees from tort claims for damages is hereby preserved to the extent and degree that such persons presently are immunized. Any recovery based on the following claims are hereby excluded from the provisions of this article.. ..
Va. Code § 8.01-195.3(4) (2007). As noted by the Supreme Court of Virginia, “[w]e construe Code § 8.01-195.3 as a limited waiver of governmental immunity from tort claims, not as a legislative definition of the Commonwealth’s duty of care to those with claims against it. We believe the legislature intended existing case law to govern the appropriate standard of care.” Commonwealth v. Cooldige,
The Defendants argue that Whitley v. Commonwealth, Baumgardner v. Southwestern Virginia Mental Health Institute, and Patten v. Commonwealth support their contention that Code § 8.01-195.3(4) bars all actions stemming from a court order, even actions based on gross negligence. However, a thorough examination of those cases suggests otherwise.
First, the Defendants cite Baumgardner v. Southwestern Virginia Mental Health Institute for the premise that Code § 8.01-195.3 creates an absolute bar to any cause of action. The Supreme Court of Virginia does state, “The plain meaning of this provision preserves the Commonwealth’s immunity from liability for the acts and omissions alleged in the motion for judgment.” Baumgardner v. Southwestern Va. Mental Health Inst.,
Second, the Defendants cite Whitley v. Commonwealth. While Whitley deals with an allegation of gross negligence, the Supreme Court of Virginia upheld the trial court’s finding that the gross negligence claim was barred
Defendants also cite Patten v. Commonwealth, where the Supreme Court of Virginia affirmed the trial court’s decision to sustain the Commonwealth’s plea of sovereign immunity. See Patten v. Commonwealth,
As can be seen, these cases do not suggest that Code § 8.01-195.3(4) acts as an absolute bar to any litigation. Rather, the cases suggest exactly what the Supreme Court of Virginia determined in Coolidge: the Virginia Tort Claims Act is a limited waiver of the Commonwealth’s immunity. The exceptions to that limited waiver are still governed by sovereign immunity, and sovereign immunity can be overcome by, among other things, an allegation of gross negligence. Therefore, this Court rejects the Defendants’ argument that Code § 8.01-195.3(4) acts as an absolute bar to any cause of action that could be brought by a plaintiff.
B. Gross Negligence
Having decided that Code § 8.01-195.3(4) does not bar actions alleging gross negligence, the Court now considers whether Plaintiff has alleged sufficient facts to support a claim for gross negligence. In Virginia, gross negligence is:
“[T]he utter disregard of prudence amounting to complete neglect of the safety of another. It is a heedless and palpable violation of legal duty respecting the rights of others which amounts to the absence of slight diligence, or the want of even scant care.” Volpe v. City of Lexington,281 Va. 630 , 639 (2011) (quoting Chapman v. City of Virginia Beach,252 Va. 186 , 190 (1996)).
Burns,
C. Collateral Estoppel
The Defendants assert that the issue of gross negligence is barred by collateral estoppel. Collateral estoppel arises when a subsequent cause of action differs from the first, but the parties and their privies are the same, and it prevents the parties from relitigating any issue of fact actually litigated and essential to a valid and final personal judgment in the first action See Lee v. Spoden,
A party is only entitled to assert a claim for collateral estoppel if the following requirements are met:
(1) the parties to the two proceedings must be the same, (2) the issue of fact sought to be litigated must have been actually litigated in the prior proceeding, (3) the issue of fact must have been essential to the prior judgment, and (4) the prior proceeding must have resulted in a valid, final judgment against the party against whom the doctrine is sought to be applied.
Glaseo v. Ballard,
The Defendants in this case assert that the Plaintiff’s claim of gross negligence was already litigated in Wilkins v. Montgomery. The Defendants point to the following language in the Fourth Circuit’s opinion in the underlying case:
Indeed, the Virginia cases allowing gross negligence claims to proceed to trial are far more egregious. See, e.g., Koffman v. Garnett,265 Va. 12 ,574 S.E.2d 258 , 260 (2003) (allowing gross negligence issue to go to a jury where a 260-pound*242 football coach aggressively tackled a 13-year-old, 144-pound, inexperienced football player, breaking his left arm); Nichols v. Brizendine,210 Va. 158 ,169 S.E.2d 457 , 460 (1969) (same, where driver of an automobile deliberately increased speed on a straight portion of a narrow road, which had an upcoming curve that driver knew about, and the car skidded 46 feet and collided head-on with a tree, severely injuring the passengers). Thus, as a matter of law, Appellee is entitled to summary judgment on this claim.
Wilkins v. Montgomery,
The Fourth Circuit determined that, based on the “dearth of evidence provided by the Appellant, as explained above” the Appellant fell short of creating atrial issue as to whether Vicki Montgomery’s actions would shock fair-minded people. Id. at 229 (emphasis added). The “above” explanation analyzed the Appellant’s claim under 42 U.S.C. § 1983. In that section, the Fourth Circuit specifically stated:
First, there is no evidence that Appellee had actual or constructive knowledge that Harris and Thompson, the charge nurse and mental health technician, were engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injuiy to Davis. To the contrary, Appellee was not even working on the night in question, and there is no evidence the staff members had behaved in such a manner in the past such that their conduct was “widespread,” or that they had neglected their duties on “several different occasions.”
Id. at 227 (citing Shaw v. Stroud,
The plea in bar, then, is overruled. As discovery progresses, though, additional information suitable for the Court’s consideration may be forthcoming. Should that occur, these issues may be revisited. For example, the orders committing Davis and Phillips to Central State Hospital could have a bearing on the Court’s analysis.