Parada-Segova v. Kenneth Todd Barlow & Cnty. of Fairfax

Re: Dora Fatima Parada-Segova v. Kenneth Todd Barlow and County of Fairfax

Case No. CL-2018-9390

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA COUNTY OF FAIRFAX CITY OF FAIRFAX

March 18, 2019

BRUCE D. WHITE, CHIEF JUDGE RANDY I. BELLOWS ROBERT J. SMITH JAN L. BRODIE BRETT A. KASSABIAN MICHAEL F. DEVINE JOHN M. TRAN GRACE BURKE CARROLL DANIEL E. ORTIZ PENNEY S. AZCARATE STEPHEN C. SHANNON THOMAS P. MANN RICHARD E. GARDINER DAVID BERNHARD DAVID A. OBLON JUDGES

THOMAS A. FORTKORT JACK B. STEVENS J. HOWE BROWN F. BRUCE BACH M. LANGHORNE KEITH ARTHUR B. VIEREGG KATHLEEN H. MACKAY ROBERT W. WOOLDRIDGE, JR. MICHAEL P. McWEENY GAYLORD L. FINCH, JR. STANLEY P. KLEIN LESLIE M. ALDEN MARCUS D. WILLIAMS JONATHAN C. THACHER CHARLES J. MAXFIELD DENNIS J. SMITH LORRAINE NORDLUND DAVID S. SCHELL RETIRED JUDGES

OPINION LETTER

John Robert Kelly, Esquire

4020 University Drive

Suite 501

Fairfax, VA 22030

Counsel for Plaintiff, Dora Fatima Prada-Segova

Robert M. Hardy, Esquire

Assistant County Attorney

12000 Government Center Parkway

Suite 549

Fairfax, VA 22035

Counsel for Defendant, Kenneth Todd Barlow

Dear Counsel:

This matter is before the court on Defendant, Kenneth Todd Barlow's (hereinafter "Defendant") Plea in Bar. The issue to be decided is whether sovereign immunity bars Plaintiff, Dora Fatima Parada-Segova's (hereinafter "Plaintiff") simple negligence claim against Defendant, an employee of the County of Fairfax. Plaintiff previously nonsuited Defendant, County of Fairfax, therefore only claims against this individual Defendant remain. After considering the pleadings and oral arguments of both parties, the court finds that Defendant is entitled to sovereign immunity and Defendant's Plea in Bar is sustained as to any claim of simple negligence.

I. BACKGROUND

The facts are taken from the Complaint and those presented at the evidentiary hearing. In the early morning hours of January 17, 2017, Plaintiff, a pedestrian, crossed the intersection of Holly Hill Road and Route 1 in Fairfax County, Virginia. It was still dark while Plaintiff was standing in the median of the intersection. At which time. Defendant made a left turn from Holly Hill Road onto Route 1 and struck Plaintiff, causing her to sustain injuries.

Defendant is employed by Fairfax County as a Heavy Equipment Operator, with Fairfax County's Department of Public Works and Environmental Service's Solid Waste Management Program, where he has been employed for over twenty (20) years. To be a heavy equipment operator one must have a commercial driver's license, and a union medical card which attests to the holder's physical health to be able to operate such machinery. At the time of the accident, Defendant was on his route operating a county-owned front-end loader. He had already made several pick-ups that morning and was carrying a significant amount of refuse to his next pick-up. Defendant was acting within the scope of his employment at the time of the accident.

Defendant's first witness. Duane Hendrix, is the Certified Director of Safety at the Newington County Facility where the waste management trucks are housed and maintained. Mr. Hendrix was in charge of training Defendant. He testified that the truck Defendant was operating was one of sixty (60) county-owned refuse trucks. Mr. Hendrix stated that he facilitates safety training throughout the year for the truck operators. He further testified that before every trip the Defendant performed a pre-trip inspection and operated the vehicle throughout the day. Mr. Hendrix testified that empty, the front-loader operated by Defendant, weighs 37,000 pounds. The vehicle has two forks or prongs, that when lowered, are guided through commercial dumpsters and then raised by the operator to empty the dumpster contents into the bed of the truck. Once the refuse is collected, the dumpster is then lowered and put back into place. The forks then are raised over the truck cab while it is being operated. Mr. Hendrix stated that on the day of the accident, Defendant was designated to pick up refuse from dumpsters at commercial buildings owned or operated by the county.

Defendant's second witness. Conrad Mehan, is the Complex Manager at Newington - Solid Waste Management Department of Public Works. Mr. Mehan testified that waste disposal is an essential government function to maintain the health of the residents of Fairfax County. He testified that he sets the route sheets for the drivers, including Defendant. He further stated that operating this vehicle requires situational awareness, because as the driver progresses through his route, the truck becomes heavier and heavier and thus, more cumbersome to operate.

Lastly, Defendant testified. He stated he had been a heavy equipment operator for over twenty (20) years. Defendant testified that on January 17, 2017. at approximately 6:40 a.m. he was operating the 37,000-pound truck attempting to turn from Holly Road onto Route 1. Defendant stated that the vehicle has ten (10) tires, forks in the front, and long and short mirrors on either side of the cab. He further testified that operating this vehicle is different from ordinary driving, because there are limited sightlines (especially behind the cab); increased breaking distances; difficulty making turns; and that overhead obstructions raise a constant danger to the upraised forks. He stated that while on the route, as the truck become heavier, the operator has to decide whether to dump the toad at a refuse station or to continue with the prearranged route. Further, the trash is constantly being packed while the operator is moving to the next pick-up site. On the day of the accident, Defendant stated that he reported to work and 5:30 a.m. and was given the South Route (southern portion of the county), which consisted of county buildings, low income housing, churches, and two pools. Defendant states that he had just picked up refuse at stop number six, which was a fire station, and was on his way to stop number seven. Defendant claims that he did not make any other detours after the pickup from stop six en route to stop seven when the incident occurred.

After considering both the oral arguments and the briefs, the court took the matter under advisement.¹

II. ARGUMENTS

The Defendant argues that he is entitled to sovereign immunity because he was performing a governmental function in which the county has great interest and involvement; that the county exercises a great deal of control and direction over the function as evidenced by the extensive training and oversight; and that the act of collection and transportation of garbage involved the use of judgment and discretion.

Plaintiff argues that Defendant is not entitled to sovereign immunity due to the fact that he was engaged in an ordinary driving situation at the time of the accident, and because Defendant was not exercising judgment and discretion at the time of the accident.

III. ANALYSIS

A. Standard of Review

A plea in bar is a defensive pleading which "shortens the litigation by reducing it to a distinct issue of fact which, if proven, creates a bar to the plaintiff's right of recovery." Tomlin v. McKenzie, 251 Va. 478, 480 (1996) (citation omitted). "The moving party carries the burden of proof on that issue of fact." Id.

[A] plea, whether at law or equity, is a discrete form of defensive pleading. As distinguished from an answer or grounds of defense, it does not address the merits of the issues raised by the bill or complaint or the motion for judgment. Yet, a plea is a pleading which alleges a single state of facts or circumstances which, if proven constitutes an absolute defense to the claim. Nelms v. Nelms, 236 Va. 281, 289 (1988).²

"When considering the pleadings, 'the facts stated in the plaintiffs' motion for judgment [i.e., the complaint] [are] deemed true.'" Id. (quoting Glascock v. Laserna, 247 Va. 108, 109, (1994)).

If the parties present evidence on the plea ore tenus, the circuit court's factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support. Hawthorn v. VanMarter, 279 Va. 566, 577 (2010) (citation omitted).

B. Sovereign Immunity Generally

The Doctrine of Sovereign Immunity is a policy "...which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities." Messina v. Burden, 228 Va. 301, 308 (1984) (quoting Hinchey v. Ogden, 226 Va. 234, 240 (1983)). The threshold question to be determined when considering whether sovereign immunity applies is whether or not the employee in question was working for an immune governmental entity at the time the complained simple negligence occurred. See Friday-Spivey v. Collier, 268 Va. 384, 387 (2004). Here, it is undisputed that Defendant is a county employee and was acting within the scope of his employment at the time of the accident, thus he may qualify for sovereign immunity. See id. at 387-388.

C. The James Four-Factor Test

The Supreme Court of Virginia has established a four-factor test for determining whether a government employee qualifies for sovereign immunity. See James v. Jane, 221 Va. 43, 53 (1980); Messina, 228 Va. at 313. The James test consists of the following four factors:

(1) The nature of the function performed by the employee;

(2) The extent of the state's interest and involvement in the function;

(3) The degree of control and direction exercised by the state over the employee; and

(4) Whether the act complained of involved the use of judgment and discretion. See James, 221 Va. at 53; Messina, 228 Va. at 313 (clarifying the four-part test enacted by James).

Prong 1: Nature of the Function

In order to satisfy the first prong of the James test the government employee must be engaged in a governmental function. See Edwards v. City of Portsmouth, 237 Va. 167, 170 (1989). "Where a local government exercises powers delegated or...