United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
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
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.
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 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.
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.
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
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,
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
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)).
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. For the reasons explained below,
the court agrees with Bryson and Gore that sovereign immunity
bars Davis' claims.
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. 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
section is identical to current Virginia Code § 27-6.02.
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
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."
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.
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 ...