Opinion
Case No. CL16-3262-00/01
06-02-2017
DAVID I. GLOVER, Plaintiff, v. RICHARD J. HRYNIEWICH, and THE CITY OF NORFOLK, VIRGINIA, Defendants and Third-Party Plaintiffs, v. WILLARD MARINE, INC., and SAFE BOATS INTERNATIONAL, LLC, Third-Party Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR JURY TRIAL
Background
Plaintiff David I. Glover ("Glover") filed a personal injury action against Defendants Richard J. Hryniewich ("Hryniewich") and the City of Norfolk (the "City") (collectively, "Defendants") pursuant to maritime law and the "Saving to Suitors" clause of Article III, Section II of the United States Constitution, alleging negligence and gross negligence. Defendants in turn filed a plea in bar (the "Plea in Bar"), contending that they are entitled to sovereign immunity.
Glover subsequently filed a Motion for Jury Trial, requesting that the Court "convene and empanel" a jury to decide the factual issues associated with the Plea in Bar. Defendants filed a Memorandum in Opposition to Plaintiff's Motion for Jury Trial, Glover submitted a Reply to Defendants' Memorandum in Opposition to Plaintiff's Motion for Jury Trial, and the parties presented argument at a May 31, 2017, hearing (the "Hearing"). At the conclusion of the Hearing, the Court directed Glover to submit a list of specific disputed facts he wanted the jury to resolve at the Plea in Bar hearing. The Court also granted Defendants' request for an opportunity to respond to Glover's submission. The parties thereafter provided post-Hearing submissions—Glover by letter dated May 31, 2017, and Defendants by letter dated June 1, 2017.
Now the Court—considering the pleadings submitted by the parties, arguments advanced at the Hearing, the parties' post-Hearing submissions, and applicable authorities—provides its ruling. As explained in more detail below, the Court finds that Glover is entitled to a trial by jury to resolve certain disputed facts that may assist the Court in ruling on Defendants' Plea in Bar on the issue of sovereign immunity. Glover's Motion for Jury Trial on the facts he alleges are disputed therefore is GRANTED IN PART and DENIED IN PART.
Legal Standard
"A plea in bar presents a distinct issue of fact which, if proven, creates a bar to the plaintiff's right of recovery." Hilton v. Martin, 275 Va. 176, 179, 654 S.E.2d 572, 574 (2008). "The moving party has the burden of proof on that issue." Id. at 179-80, 654 S.E.2d at 574. The purpose of a plea in bar is "to narrow the litigation by resolving an issue that will determine whether a plaintiff may proceed to trial on a particular cause of action." Hawthorne v. VanMarter, 279 Va. 566, 578, 692 S.E.2d 226, 234 (2010); see also 1 Charles E. Friend & Kent Sinclair, Friend's Virginia Pleading and Practice § 8.01[4] (2006 & Supp. 2012-2013) ("[A] plea in bar can be sustained even if it presents a bar to recovery to only some, but not all, of the plaintiff's claims."). One such plea in bar is a plea of sovereign immunity because, if sustained, it "creates a bar to a plaintiff's claim of recovery." City of Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004); see also Hunter v. Bryant, 502 U.S. 224, 228 (1991) ("Immunity ordinarily should be decided by the court long before trial."). Under Virginia law, "[i]f the facts underlying the plea in bar are contested, a party may request that a jury decide the factual issues raised by the plea." Hawthorne, 279 Va. at 577, 692 S.E.2d at 233.
The parties acknowledge that, even if sovereign immunity is available to Defendants, it would not shield Hryniewich from gross negligence.
Whether a municipality and a municipal employee are safeguarded by sovereign immunity is a question of law. See Cunningham, 268 Va. at 633, 604 S.E.2d at 426. "[The Supreme Court of Virginia] has outlined a four-factor test for determining whether an individual working for an immune governmental entity . . . is entitled to the protection of sovereign immunity." Friday-Spivey v. Collier, 268 Va. 384, 387-88, 601 S.E.2d 591, 593 (2004) (citing James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980)). The factors to be considered are as follows:
(1) the nature of the function performed by the employee,James, 221 Va. at 53, 282 S.E.2d at 869. The Virginia Supreme Court has held that "sovereign immunity is appropriate if the facts of the case comport with the four-part test." Heider v. Clemons, 241 Va. 143, 145, 400 S.E.2d 190, 191 (1991) (emphasis added); see also Gargiulo v. Ohar, 239 Va. 209, 215, 387 S.E.2d 787, 791 (1990) (holding that a state employee qualified for sovereign immunity after "[h]aving applied the four-part test . . . to the facts of record").
(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.
Discussion
In its post-Hearing submission, Glover concedes that, as to the City, there are no disputed facts related to its function at the time of the incident and, as to Hryniewich, there are no disputed facts related to the first two prongs of the James test. He asserts, however, that there are six disputed facts related to the other two prongs of the James test. Defendants, on the other hand, argue that all relevant facts are undisputed.
The allegedly disputed facts—as expressed by Glover in his post-Hearing submission—are as follows:
Although Glover ostensibly incorporates by reference the allegedly disputed facts identified in his Motion for Jury Trial and his Reply to Defendants' Memorandum in Opposition to Plaintiff's Motion for Jury Trial, the "facts" in those pleadings were not in a form that could be presented to a jury, which prompted the Court to direct Glover to submit a list of specific disputed facts he wanted the jury to resolve at the Plea in Bar hearing, which Glover did.
1. Was Defendant Hryniewich directed by the City or a superior officer to perform the sea trial in the manner in which he conducted it?
2. Was Defendant Hryniewich's conducting of the sea trial controlled by the City or one of his superior officers?
3. Did the City exercise a sufficient degree of control and direction over Defendant Hryniewich during the sea trial that he passes that prong of the test?
4. Was Defendant Hryniewich facing special risks when conducting the sea trial of Marine 5?
5. Was Defendant Hryniewich using his own judgment and discretion when conducting the sea trial or was he simply following orders or direction from the City in a ministerial fashion?
6. Was Defendant Hryniewich using his own judgment and discretion by embracing special risks such that he passes that prong of the test?
Based on the information presented, the Court finds that Question 1 is a disputed fact related to the Plea in Bar that is appropriate for a jury to decide. Although resolution of this fact may not be dispositive regarding factor 3 or 4 of the James test—as Defendants argue—the Court nevertheless finds it appropriate to have Question 1 answered, whereupon the Court will give the answer its proper weight.
The Court notes that Defendants agree that "Hryniewich made all of the critical decisions during the Sea Trial, occasionally in consultation with Sergeant Pagan," arguably making the answer to Question 2 undisputed. Nevertheless, if Glover and Defendants are unable to agree on an appropriate stipulation, the Court finds that Question 2 is a disputed fact related to the Plea in Bar that is appropriate for a jury to decide.
As indicated supra, the issue of immunity—and therefore the application of the James four-factor test—is a question of law. Questions 3 and 6 expressly ask the jury to evaluate factors 3 and 4, respectively; presenting these questions to a jury therefore is inappropriate, as it would invade the province of the Court.
Question 4 similarly is a question of law that is beyond the jury's purview. Asking whether the conditions faced by Hryniewich during the sea trial—which are factual—constitute a "special risk" is merely a proxy for asking "whether the act complained of involved the use of judgment and discretion," i.e., factor 4 of the James test. See McBride v. Bennett, 288 Va. 450, 455-56, 764 S.E.2d 44, 47 (2014) ("[W]hether the act in question involves the requisite exercise of discretion such that sovereign immunity applies depends on whether that act embraces 'special risks' in order to effectuate a governmental purpose.").
Question 5 also involves a legal issue that is outside of the jury's charge—whether Hryniewich's conduct of the sea trial was discretionary or ministerial—as it, once again, is a restatement of factor 4 of the James test. See Colby v. Boyden, 241 Va. 125, 128-29, 400 S.E.2d 184, 186 (1991) ("[W]hether a particular act is entitled to the protection of sovereign immunity depends upon whether the act under consideration is classified as discretionary or ministerial in nature."). Without reference to "discretionary" and "ministerial," the distilled question is equivalent to Question 2, which—based on the information presented—the Court finds to be a disputed fact related to the Plea in Bar that is appropriate for a jury to decide. As discussed supra, the Court notes that Defendants agree that "Hryniewich made all of the critical decisions during the Sea Trial, occasionally in consultation with Sergeant Pagan." Nevertheless, if Glover and Defendants are unable to agree on an appropriate stipulation, the Court finds that Question 5—without reference to "discretionary" and "in a ministerial fashion"—relates to a disputed fact germane to the Plea in Bar and is thus appropriate for a jury to decide.
Revised Question 5 would read as follows: "Was Defendant Hryniewich using his own judgment when conducting the sea trial or was he simply following orders or direction from the City?" --------
Glover also contends that there are five disputed facts related to its claim of gross negligence against Hryniewich. As an initial matter, a plea in bar is an improper vehicle to challenge the sufficiency of facts allegedly supporting gross negligence. Additionally, because the Court's ultimate rulings on the Plea in Bar—whether the City is entitled to sovereign immunity and whether Hryniewich is entitled to qualified immunity—are not dependent on determining whether Hryniewich was grossly negligent, the Court need not resolve any putative disputed facts related to gross negligence. Even if the Court were to sustain the Plea in Bar, the factfinder can consider any related disputed facts at some subsequent proceeding or at trial.
Conclusion
Because the Court concludes that some of the facts alleged by Glover are disputed and material to the determination of sovereign immunity, Glover's Motion for Jury Trial is GRANTED as to his Questions 1 and 2 (as proposed), and as to his Question 5 (as modified by the Court). Glover's Motion for Jury Trial otherwise is DENIED. Glover and Defendants are directed to submit to the Court on or before June 5, 2017, at 5:00 p.m. proposed jury instructions designed to instruct the jury to answer the above-discussed disputed facts—or stipulations in lieu of certain jury instructions—in preparation for the June 6, 2017, Plea in Bar hearing.
The Clerk of Court is directed to forward a copy of this Order to all counsel of record. Endorsements are waived pursuant to Rule 1:13 of the Rules of Supreme Court of Virginia. Any objections to this Order shall be filed within fourteen days.
Enter: 6/2/2017
/s/_________
David W. Lannetti, Judge