Va. Beach tells victim's family it's not liable and won't pay

VIRGINIA BEACH

City officials have expressed condolences to the family of a homeless man who was run over and killed by a trash truck while sleeping on the beach. But they refuse to offer the family cash as a salve for its grief.

The city says it can't be held legally responsible for the death because the driver of the trash truck was doing government business at the time of the accident.

"Collecting trash is a municipal activity and case law is clear that when the city is engaging in governmental functions, the city is immune," City Attorney Mark Stiles said.

The truck's driver, Heather Boyd, ran over Michael Knockett on June 28 while he was sleeping in a beach chair at about 8 a.m. An investigation by Commonwealth's Attorney Harvey Bryant found that Boyd did not see Knockett and the driver was not charged. The city has refused to release Boyd's 911 call to report the accident.

Boyd has not driven for the city since the accident but remains a Beach employee.

In a letter to Knockett's family, Director of Risk Management John Grook said the driver didn't commit a crime and the city cannot be held legally accountable for accidents that happen during trash collection and in parks, recreational areas and playgrounds, which includes the beach.

This legal argument, known as sovereign immunity, is based on the idea that governmental entities and their employees are in some cases protected from being sued by injured individuals or their families. The decision to invoke that legal defense was reached in the Knockett case after a city review of the accident, which included a review of Boyd's past driving infractions, Grook said.

The city paid 325 general liability claims last year.

"We evaluate every claim individually based on its facts and there are cases based on the facts that immunity doesn't apply," Stiles said.

A lawyer for Knockett's family, Carl C. La Mondue, had asked the city in a letter to "reflect upon the proper and appropriate response... to the sudden and painful death of a man who was enjoying the public beach..."

Grook responded: "City continues to extend its deepest condolences to the family of Michael Knockett for their loss" and "hope that both you and they can understand our position in that we may pay for only those claims for which the city of Virginia Beach is legally liable."

The July exchange is outlined in letters obtained from Knockett's family and the city through a Freedom of Information Act request.

La Mondue said he expects to file a civil lawsuit later this month.

DeShawn Tatem, a pastor who was raised by Knockett, said his family is disappointed with the city's response.

"We were putting the ball in the court of the city to avoid a lawsuit and a nasty fight," Tatem said.

The family is putting on an event Saturday in the parking lot of Tatem's Chesapeake church in an effort to attract national media attention and raise money for a shelter the family wants to start in honor of Knockett, Tatem said.

He said he thought the commonwealth attorney's decision not to charge Boyd was influenced by the city's fear of a lawsuit. "It explains the quick investigation in their favor," he said. "They were thinking about a lawsuit. If they would've charged this woman they would have made it easy on the family to sue them."

Stiles, Virginia Beach's city attorney, said that's not the case.

"The commonwealth's attorney is not a city employee," he said. "He has no role or interest in protecting us from liability."

With the criminal investigation over, any lawsuit would likely hinge on the city's sovereign immunity defense.

Sovereign immunity law is complex, nuanced and subject to different interpretations, legal experts said.

"It's thick as mud for those who don't regularly deal with these issues," said David Anthony, a Richmond lawyer who often represents governments in sovereign immunity cases. "It's probably as complicated as anything I deal with."

The doctrine comes from the common law belief that kings couldn't do anything wrong, Anthony said. "As governments have changed, there are some real collisions between the modern world and this king notion," he said.

The city's other argument relies on a state statute that protects municipalities from liability while operating parks, recreation facilities and playgrounds. Because that law does not extend government protection in the case of "gross negligence," as opposed to "ordinary negligence," a civil suit would likely focus on this legal distinction.

"The general battle ground is whether the plaintiff can satisfy the gross negligence standard, which is incredibly difficult to do," Anthony said.

La Mondue said, "This is a case of gross negligence. There's no doubt in my mind. There's been no reasonable explanation for the conduct of the driver."

Stiles disagreed. He defined gross negligence as a "total and utter disregard for the welfare of other. A complete I-don't-care-what-happens attitude. It's a pretty difficult standard to meet and I don't believe it's met here."

Aaron Applegate, (757) 222-5122, aaron.applegate@pilotonline.com