The cost of liability: Immunity helps in some cases
By Marc Davis, The Virginian-Pilot – August 6, 2007
Two years ago, a 12-year-old girl was hit in the mouth with a baseball bat during gym class at Landstown Middle School in Virginia Beach.
It was an accident. The girl was the catcher, but the teacher had not given her a mask. As the girl reached for a ball, the batter swung. The bat caught the catcher flush in the teeth.
One tooth was knocked out. Six others were broken. After much dental work, the girl now has a bridge on her top teeth and four crowns below. Her parents, who had no health insurance, paid $8,587 to repair the damage.
Was the teacher negligent? Should the city have paid for the girl’s dental work? Or was the school blameless?
The school system refused to pay and the case never made it to court. The girl’s parents talked to eight law firms but none would take the case.
“They just said you can’t win a sovereign immunity case like this in Virginia,” said the girl’s mother, Beverley Pinkerman.
It’s a fact of life in Virginia: If you are hurt through a city employee’s negligence, especially on school grounds, there’s a chance you will not be compensated because of sovereign immunity, the legal concept that government can’t be sued under a wide variety of circumstances.
The five cities of South Hampton Roads paid more than $12 million for damages and injuries caused by city workers in 2004, 2005 and 2006.
However, the five school systems in South Hampton Roads almost never pay for injuries to students, parents or visitors on school grounds, even though they routinely pay for damages and injuries arising from school bus crashes.
The laws of immunity are so complex that lawyers who routinely handle such cases can’t even be sure when immunity applies.
“The answer is not always intuitive,” said Mark D. Stiles, a Virginia Beach deputy city attorney. “Sovereign immunity is taken on a case-by-case, fact-by-fact basis, no matter how clear the law looks.”
Even the Virginia Supreme Court, the state’s highest court, acknowledged it is often hard to tell who or what is protected by sovereign immunity. In a 2004 case from Chesapeake involving pregnant women, the Supreme Court wrote that the difference between an immune government act and a nonimmune one “is more readily stated in theory… than applied in actual practice.”
The most minute detail can make a difference.
Consider the case of Elisa Hammer.
In 2004, a Virginia Beach city truck ran over Hammer, a 72-year-old pedestrian. The driver, a city plumber, didn’t see Hammer as he pulled out of a parking lot. The truck crushed her pelvis.
The city argued that the plumber was immune from any damage claim, even if he was at fault.
Why? Because state law says cities can’t be sued for any injury or damage caused by “ordinary negligence” while operating a park, recreational facility or playground. They can be sued, however, for “gross negligence,” a distinction that is not easy to define and often argued in court.
The plumber was between jobs. He had just finished work at the city’s Social Services building and was on his way to fix a toilet at Little Island Park in Sandbridge. The city claimed the plumber was covered by the “recreational facility” exemption.
To support its argument, the city cited a 2000 ruling by the Virginia Supreme Court. In that case, the court said a Hampton garbage-truck driver could not be sued after a crash because he was taking garbage from Hampton Coliseum, another “recreational facility.”
Hammer’s lawyer, John W. Drescher, protested. He argued that the plumber wasn’t at the park yet; he hadn’t even left the Social Services parking lot when he hit the woman. In that case, Drescher argued, the plumber was just driving his truck, doing nothing special under the law.
The judge agreed with Drescher.
One month later, the city settled the case for $1.2 million, the largest damage payment by any city in South Hampton Roads from 2004 to 2006.
The rules are equally confusing for schools.
The line between what’s immune and what’s not is thin and ill-defined. In general, cities are immune from lawsuits arising out of “governmental” acts – jobs exclusively for the public welfare. Designing streets, for example, is a governmental function.
On the other hand, cities are not immune while performing “proprietary” acts, including jobs of routine maintenance, of their properties.
“Cities can be just as liable as any corporation” for negligence in routine matters, while maintaining their immunity for specialized government work, said L. Steven Emmert, a Virginia Beach appellate lawyer.
Most work inside schools is considered “governmental,” and therefore is immune from liability. That explains why schools rarely pay for injuries on school grounds.
To complicate matters, a different state law covers school buses. It says cities and school systems can be held liable for school bus accidents – but only for damages up to $50,000 per injury.
Now add one more twist: That immunity applies only while the bus driver is picking up or dropping off students.
In 2004, Hampton discovered this distinction the hard way.
In that case, a school bus driver hit a motorcyclist, who then slammed into a telephone pole and suffered brain damage. A Hampton judge ruled there was no limit to the potential damages because the bus driver hadn’t picked up any students yet. The school district settled the case for $7.5 million.
All of which explains the enormous imbalance in payouts by local school divisions between school bus accidents and all other kinds of damages and injuries.
From 2004 to 2006, the school systems in Chesapeake, Norfolk, Portsmouth, Suffolk and Virginia Beach paid $2.6 million for damages and injuries from more than 600 school bus accident claims – but only $46,000 for all other kinds of injuries and damages on school grounds.
The discrepancy is most glaring in Virginia Beach. The city paid 212 claims for school bus accidents over three years, totaling $605,000 – but only two claims for all other kinds of incidents.
But the most dramatic example of how a city can dodge a bullet through sovereign immunity is in Chesapeake.
Helen Cunningham learned she was pregnant in July 1998. One month later, she suffered a miscarriage.
She blamed Chesapeake’s drinking water. She claimed it had an unusually high level of a toxin call THM and that this caused her miscarriage. She sued the city for $6 million.
And she was not alone. More than 200 women filed similar lawsuits against the city, seeking about $1.8 billion in damages.
But the cases never made it to trial. On Nov. 5, 2004, the Virginia Supreme Court killed the cases without ever ruling whether the drinking water was safe or dangerous.
Instead, the court ruled that Chesapeake was immune from liability because designing the water system and informing residents about potential dangers in the water were “governmental” acts.
Therefore, the court concluded, “sovereign immunity applies to bar Cunningham’s claims…. Final judgment will be entered for the city.”
In the same 24-page ruling, the state’s Supreme Court laid out a brief history of sovereign immunity and how to tell when it applies.
For example, the court wrote, “governmental” acts that are immune include designing sidewalks, providing emergency snow removal, planning and laying out streets, providing ambulance services, regulating traffic by traffic signals, emergency cleanup services, and providing garbage collection services.
If a city employee hurts someone while performing any of those jobs, the city is probably immune from being sued.
On the other hand, the court also gave examples of “proprietary” acts that are not immune. These include “routine maintenance or operation of a municipal service,” such as maintaining sidewalks and existing streets, and failure to keep a sewer drain in good repair and free from obstructions.
Which brings us back to the baseball accident.
One week after their daughter Samantha was hit with the baseball bat, Michael and Beverley Pinkerman submitted a claim to the school system.
It totaled $177,085, based on a dentist’s proposed treatment plan. The claim included $8,587 for current treatment, $8,346 for treatment at age 18 or 19, $100,152 for up to 12 further treatments during their daughter’s lifetime, and $60,000 for pain and suffering.
One week later, the claim was denied.
In a letter to the Pinkermans, a claims representative wrote, “We have investigated this incident and must advise you that our member school board is protected by the doctrine of sovereign immunity against injury claims such as your daughter’s. This means the school board cannot be held liable for your daughter’s injury.
“Employees of the school board have qualified immunity for simple acts of negligence. We do not feel the physical education teacher was negligent in this instance. Therefore, we cannot make any payment to you on this claim.”
The Pinkermans persisted. They talked with School Board members and school administrators. They called and e-mailed and pestered.
School officials told the Pinkermans they should have taken the student accident insurance policy offered at the start of the school year. But at that point, the Pinkermans had their own health insurance and didn’t think they needed it. They later lost their health insurance.
Finally, on Nov. 21, 2006, a year and a half after the accident, the parents received a letter from a deputy city attorney. It repeated the denial of claim.
“You are advised to consult a private attorney for further advice regarding this matter,” the letter concluded. The Pinkermans could not find a lawyer to take their case.
On May 18, the statute of limitations ran out for any possibility of a lawsuit.
Not every local school system denies payments for accidents involving students and parents on school grounds. Chesapeake Public Schools sometimes pays up to $10,000 for such accidents.
In fact, Chesapeake schools paid two large claims for injuries suffered by a parent and a student in 2004 and 2005:
• On Sept. 30, 2004, a student was injured lifting weights during a physical education class in a Chesapeake school. The school division paid $8,390 for the student’s medical bills.
• On June 14, 2005, a parent fell on a wet floor at a Chesapeake school. The school division paid $10,000 toward her medical bills.
While state law says schools may claim immunity from liability for negligence, it doesn’t say they have to. In Chesapeake, the school division has decided it is fair to pay for medical bills for some kinds of accidents in schools, as a courtesy to parents.
Chesapeake also paid $822 for a special education student who rolled off a chair and broke a tooth; $611 for a student who was shoved against a cafeteria wall; $142 for a student who fell from the monkey bars; $128 for a student injured by a weight machine; $105 for a student injured in a fight; $100 for another student hurt during gym class; and $85 for a student whose arm was burned on a school radiator.
By comparison, Norfolk public schools paid no general injury claims for 2004, 2005 and 2006.
During the same three years, Virginia Beach paid two such claims – $172 and $101 for people who fell on a sidewalk. The school system paid no claims for injuries inside schools.