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Davis v. Bryson

United States District Court, W.D. Virginia, Harrisonburg Division

April 25, 2018

ROBERT DALE DAVIS, Plaintiff,
v.
JOSHUA DAVID BRYSON, et al. Defendants.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski Chief United States District Judge.

         This action arises out of an automobile accident in Frederick County, Virginia between plaintiff Robert Dale Davis ("Davis") and defendant Joshua David Bryson ("Bryson"), who was driving an ambulance for defendant Gore Volunteer Fire Company ("Gore"). Bryson and Gore moved for summary judgment over Davis' claims of negligence and gross negligence, the only remaining counts in this case. Because the doctrine of sovereign immunity bars the negligence claims, and no reasonable juror could find gross negligence, Bryson and Gore's motion for summary judgment will be GRANTED and this case DISMISSED.

         I.

         Gore provides emergency rescue services in Frederick County, Virginia. On September 26, 2007, the Frederick County Board of Supervisors entered into a Fire and Rescue Joint Agreement ("Joint Agreement") with Gore and a number of other fire companies "to further enhance the partnership between the County and the Company by defining the role and responsibility of each patty, and to further support their joint mission to provide efficient and cost-effective fire and rescue services to the citizens of Frederick County." Ex. F, ECF No. 64-6, at 8. Virginia's Office of Emergency Medical Services Agency issued Gore a license and recognizes Gore as an EMS Agency authorized to provide ambulance services. Bryson serves as a volunteer for Gore and drives its ambulances.

         On June 16, 2015, the day of the accident at issue in this case, the 911 Center alerted several rescue companies of a Priority 1 emergency for an unconscious woman at 101 Buffalo Trail. The 911 Center first toned (or contacted) Rescue Company 19-North Mountain and ALS1[1] to assist with the emergency. As Rescue Company 19 had not "marked up" (responded), the 911 Center again toned Rescue Company 19 and also toned Rescue Company 15-Round Hill and Rescue Company 14-Gore. Ambulance 14-2 of Rescue Company 14-Gore marked up to assist with the Priority 1 emergency, when there was no other ambulance en route to the call.

         While Gore marked up for the emergency, Davis drove his truck westbound on Route 50 toward Gore's rescue station during rush hour traffic. Davis traveled in the left lane of the highway, and sometime prior to the accident, switched to the right lane due to a car either slowing or stopping. The parties dispute how long before the collision Davis changed lanes. Davis' testimony and witness testimony from a passing transit bus supports a full lane change prior to the accident, while Bryson's testimony and photographs of skidmarks suggest a partial lane change just prior to the accident. As Davis traveled towards Gore, Bryson drove the ambulance to the white fog line at the edge of Route 50 in order to cross traffic and travel eastbound to the emergency. Bryson testified that he stopped for approximately thirty seconds before proceeding, and that he had been trained to wait for vehicles to stop prior to crossing the fog line. The parties dispute whether the ambulance crossed the fog line into the travel lane and whether Bryson activated the ambulance's lights and sirens. Davis' truck then collided with the side of Gore's ambulance as Bryson entered, or was about to enter, Route 50.

         A police officer responded to the scene of the accident. Bryson's and Davis' witness statements to the Virginia State Police note that a vehicle was stopped in the left lane and that Davis then moved to the right lane. As a result of the accident, Davis was charged with reckless driving. The Frederick County District Court acquitted Davis of reckless driving but found him guilty of improper driving in violation of Virginia Code § 46.2-869; upon appeal to the Frederick County Circuit Court, Davis was found not guilty of improper driving and has no convictions related to the accident.

         On June 13, 2017, Davis filed this lawsuit against Bryson, Gore, the Frederick County Volunteer Fire and Rescue Association ("Frederick"), and John Does 1-3. Hartford Casualty Insurance Company ("Hartford") also was served pursuant to the uninsured/underinsured motorist statute. After a hearing on defendants' Rule 12 motion to dismiss, the court dismissed Davis' claims of negligent training and malicious prosecution (Counts 3, 6, and 7) and sua sponte dismissed John Does 1-3 under Rule 12(b)(6) (Count 6). The court allowed Davis' negligence and gross negligence claims to advance to discovery (Counts 1, 2, 4, and 5). These negligence and gross negligence claims are now subject to summary judgment motions filed by Bryson, Gore, and Hartford.

         II.

         Pursuant to Federal Rule of Civil Procedure 56(a), the court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with .. . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.'" McAirlaids. Inc. v. Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at *1 (4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam)). Moreover, "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . .. ." Anderson, 477 U.S. at 255. However, the non-moving party "must set forth specific facts that go beyond the 'mere existence of a scintilla of evidence.'" Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249). "In other words, to grant summary judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing Perini Corp. v. Perini Const. Inc., 915 F.2d 121, 124 (4th Cir. 1990)).

         III.

         Defendants Bryson and Gore seek summary judgment on sovereign immunity grounds, and contend that Bryson's actions leading up to and during the accident do not amount to gross negligence exempted from such immunity.[2] For the reasons explained below, the court agrees with Bryson and Gore that sovereign immunity bars Davis' claims.

         A.

         Defendants contend that sovereign immunity bars Davis' claims against Gore because it serves as a volunteer fire and rescue company for Frederick County. The parties agreed at the April 5, 2018 hearing that Va. Code § 27-6.01 et seq., as it existed at the time of the accident in June 2015, governs whether Gore receives immunity.[3] Former Code § 27-23.6, which governs the availability of sovereign immunity in this action, states as follows:

A. Any county, city, or town may provide firefighting services to its citizens by (i) establishing a fire department as a department of government pursuant to § 27-6.1 or (ii) contracting with or providing for the provision of firefighting services by a fire company established pursuant to § 27-8.
B. In cases in which a county, city, or town elects to contract with or provide for the provision of firefighting services by a fire company pursuant to clause (ii) of subsection A, the fire company shall be deemed to be an instrumentality of the county, city, or town and, as such, exempt from suit for damages done incident to fighting fires therein. The county, city, or town may elect to provide for the matters authorized in §§ 27-4 and 27-39.
As used in this section, "provide firefighting services" includes travel while performing fire, rescue, or other emergency operations in emergency vehicles or fire apparatus as described in §§ 46.2-920 and 46.2-1023, respectively.

         This section is identical to current Virginia Code § 27-6.02.

         Davis takes issue with Gore's ability to meet each of the three paragraphs of § 27-23.6. First, Davis contends that Gore has not demonstrated its contractual relationship with Frederick County or that it is an established fire company per the first paragraph. Second, Davis argues that Bryon's operation of the ambulance was not "incident" to fighting fires as required by the second paragraph, and did not qualify as "provid[ing] firefighting services" under the third paragraph. The court does not find Davis' arguments against Gore's immunity persuasive.

         1.

         Gore has demonstrated that it contracted with Frederick County to provide firefighting services as a fire company established pursuant to § 27-8. See § 27-23.6(A). Gore falls under section (ii) of the first paragraph, where Frederick County opted to provide firefighting services by "contracting with or providing for the provision of firefighting services by a fire company established pursuant to § 27-8."

         With its motion for summary judgment, Gore attached as an exhibit the Joint Agreement entered into between Frederick County and Gore. See Ex. F, ECF No. 64-6, at 8-13. Davis argues that the exhibit is insufficient to demonstrate a contractual relationship because Section Four of the Joint Agreement references County dispatch and response procedures that Gore must conform to in its delivery of emergency rescue services, and these procedures have not been presented to the court. These procedures have no bearing on whether Frederick County contracted with Gore to offer firefighting services in general; moreover, Section Four explicitly requires Gore to "provide assistance to other fire and rescue companies and governmental jurisdictions with which Frederick County and/or the Company has established mutual aid agreements, in accordance with County dispatch and response procedures as established and in conjunction with the Operations Team." See Ex. F, ECF No. 64-6, at 11. Gore clearly contracted with Frederick County to provide firefighting services, and the 911 Center called upon it to engage in emergency services on the day of the accident. Given that Va. Code § 27-23.6 should be "liberally construed, " see Nat'l R.R. Passenger Corp. v. Catlett Volunteer Fire Co., 241 Va. 402, 407, 404 S.E.2d 216, 218 (1991), the court finds the existence of a contract for firefighting services between Gore and Frederick County.

         Davis also challenges whether Frederick County established Gore as a fire company pursuant to § 27-8. At the time of formation of the contract and at the time of the accident, the follow version of § 27-8 was in effect:

Any number of persons, not less than twenty, may form themselves into a company for extinguishing fires or for performing emergency medical services, or both. In any county in which two or more companies for extinguishing fires or for performing emergency medical services shall join together and singly use one fire/EMS station, the number of persons in the combined companies shall be not less than twenty. The ...

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