Hawthorne v. Guthrie

Decision Date15 April 2010
Docket Number091156.,Record No. 091127
Citation279 Va. 566,692 S.E.2d 226
CourtVirginia Supreme Court
PartiesPaxton HAWTHORNE, Co-Administrator of the Estate of Joyce Hawthorne, et al.v.Timothy VanMARTER.Kevin Guthriev.Timothy VanMarter.



Joseph L. Anthony (Paxton Hawthorne, on briefs), pro se.

Paul R. Thompson III (Kevin W. Ryan; Michie Hamlett Lowry Rasmussen & Tweel, Charlottesville, on briefs), for appellant Kevin Guthrie.

Jim H. Guynn, Jr. (Guynn, Memmer & Dillon, Salem, on briefs), for appellee.



In these appeals of a judgment for a defendant in a vehicular accident case alleging ordinary and gross negligence, we consider several issues, including the circuit court's holding that the defendant, a police officer, was entitled to sovereign immunity. We also consider the defendant's motion to dismiss one of the appeals.

I. Pre-Trial Rulings

In June 2005, Joyce Hawthorne was killed and Kevin Guthrie was injured when a police vehicle driven by Senior Officer Timothy VanMarter of the Roanoke County Police Department struck the vehicle Hawthorne was driving. Guthrie and the co-administrators of Hawthorne's Estate, Paxton Hawthorne and Joseph Anthony (the Administrators), filed separate motions for judgment 2 in the Circuit Court of the City of Roanoke against VanMarter, alleging negligence. 3 The circuit court granted VanMarter's motion to transfer the cases to the Circuit Court of Roanoke County, and the cases were consolidated for trial.

VanMarter filed a plea in bar asserting that he was entitled to sovereign immunity. VanMarter argued that at the time of the accident, he was attempting to “overtake” a vehicle that was traveling at an excessive rate of speed. Contending that this conduct was discretionary in nature, VanMarter asserted that he was immune from liability for ordinary negligence. VanMarter also argued that, as a matter of law, his conduct was not grossly negligent because he exercised some care by applying the police vehicle's brakes and by swerving in an attempt to avoid the accident.

In response, the Administrators and Guthrie (collectively, the plaintiffs) asserted that the doctrine of sovereign immunity was inapplicable because VanMarter never activated his police vehicle's emergency equipment, and because he was “overtaking” rather than pursuing a speeding vehicle. The plaintiffs further argued that any determination of gross negligence required factual findings that could not be decided by the court as a matter of law.

In a hearing conducted on the defendant's plea in bar, the circuit court considered VanMarter's testimony and the memoranda and arguments of counsel. The plaintiffs did not present the testimony of any witnesses for the court's consideration. Based on VanMarter's testimony, the circuit court found that VanMarter was pursuing a speeding vehicle at the time of the accident. The circuit court held that VanMarter's actions were discretionary in nature and that, therefore, the plaintiffs' claims of ordinary negligence were barred by the doctrine of sovereign immunity.

Following the circuit court's ruling on the plea in bar, the plaintiffs conducted depositions of two potential trial witnesses. These witnesses stated that during a period of between 30 and 45 minutes before the collision, they stood about 250 feet from Chaparral Drive and were engaged in conversation. The two witnesses related that they did not observe a speeding vehicle before hearing the collision. Arguing that these witness accounts were [n]ewly [d]iscovered” evidence, the plaintiffs filed a motion “to [a]mend [p]rior [r]uling,” asserting that the deposition testimony created a factual dispute regarding the presence of a speeding vehicle. The plaintiffs asked that the circuit court allow the two witnesses to testify at trial, and submit to the jury the factual issue whether VanMarter was pursuing a speeding vehicle. The plaintiffs argued that if the jury determined that there was no such speeding vehicle, VanMarter would not be entitled to the protection of sovereign immunity and the jury should be instructed on both ordinary and gross negligence.

VanMarter contended that this testimony was not “newly discovered” because the witnesses' names were provided by the plaintiffs in discovery at least two weeks before the hearing on the plea in bar. VanMarter also asserted that the witnesses' proffered statements did not contradict VanMarter's account of the events that night. Thus, VanMarter asserted, the proffered testimony would not have changed the circuit court's sovereign immunity determination.

The circuit court agreed with VanMarter and denied the plaintiffs' motion to reconsider the sovereign immunity holding. The circuit court concluded that the witnesses' testimony did not qualify as “after-discovered evidence,” and further held that even if the court had considered the proffered testimony, the witnesses' statements would not have affected the court's sovereign immunity determination. The plaintiffs did not request that they be allowed to present the testimony of the two witnesses to the jury for impeachment purposes or on the issue of gross negligence.

II. Trial

The evidence at trial showed that, at the time the accident occurred, Guthrie was riding as a passenger in a vehicle driven by Hawthorne. Guthrie testified that immediately before the accident, Hawthorne looked in both directions before leaving a driveway and turning onto Chaparral Drive. Guthrie testified that he did not observe any other vehicles, and did not see flashing emergency lights or hear an emergency siren before the collision. Guthrie stated that the last thing he remembered after Hawthorne turned his vehicle onto Chaparral Drive was the “sudden impact” of something hitting the vehicle.

Guthrie also presented the testimony of witnesses who qualified as experts on subjects including accident investigation and the operation of emergency vehicles. From these witnesses, the jury heard evidence about, among other things, the conditions of the vehicles involved in the collision, the line of sight from the driveway “looking down” Chaparral Drive, and the amount of time it would take a vehicle to travel that distance. The jury also was presented evidence regarding the “proper protocol” for activation of emergency equipment on a police vehicle during the pursuit of another vehicle.

As part of his case, Guthrie also presented the deposition testimony of VanMarter. VanMarter stated that on the night of the accident, he was driving his police vehicle northbound on Chaparral Drive and observed a car traveling in the opposite direction at 63 miles-per-hour, as measured by police radar equipment. The posted speed limit at that location was 25 miles-per-hour. VanMarter stated that he made a “U-turn” in order to pursue the car and accelerated his police vehicle by pressing its gas pedal to the floor. VanMarter conceded that he did not activate the vehicle's emergency lights and siren at that time.

In this deposition testimony, VanMarter also stated that as his speed increased, he looked down to locate and activate his vehicle's emergency equipment. At the same time, the vehicle driven by Hawthorne entered onto Chaparral Drive from a driveway. VanMarter testified that when he saw Hawthorne's car, he applied his vehicle's brakes, and attempted to turn his vehicle so that it would strike the rear of Hawthorne's car.

In his defense, VanMarter presented the testimony of two witnesses who qualified as experts on the subject of emergency vehicle training instruction. These witnesses testified regarding the accepted protocol for activation of emergency equipment of police vehicles. They stated that when making a determination whether to “overtake” a speeding vehicle and whether to activate a police vehicle's emergency lights and siren, police officers must take into account various factors including the time of day, road and vehicle conditions, the amount of traffic, and the safety of others.

VanMarter also presented the testimony of an accident investigator and a mechanical engineer. The accident investigator testified regarding the unobstructed line of sight that Hawthorne would have had before turning onto Chaparral Drive. The mechanical engineer testified regarding the force of the impact and the vehicle damage caused by the collision.

At the close of all the evidence, the parties submitted proposed jury instructions. As relevant to this appeal, the plaintiffs objected to Instructions 3 and 11, which are described below. The circuit court overruled these objections and instructed the jury accordingly.

The jury returned a verdict in favor of VanMarter. The circuit court denied the plaintiffs' motion to set aside the verdict and entered final judgment in accordance with the jury verdict. The plaintiffs appeal from the circuit court's judgment.

III. Motion to Dismiss

Before addressing the various rulings and holdings assigned as error, we will consider VanMarter's motion to dismiss the Hawthorne Estate's appeal. VanMarter argues that the appeal filed on behalf of the Hawthorne Estate must be dismissed because the Administrators filed the appeal in a pro se capacity. VanMarter asserts that our holding in Kone v. Wilson, 272 Va. 59, 630 S.E.2d 744 (2006), that an administrator of an estate may not file an action in a pro se capacity, unequivocally bars the Administrators' appeal here.

In response, the Administrators argue that the holding in Kone is not applicable to this appeal because that holding does not address whether an administrator may file an appeal in this Court, as opposed to a complaint in a circuit court, in a pro se capacity. The Administrators alternatively contend that even if the holding in Kone is applicable to the filing of an appeal, the Administrators have...

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