Civil Liability of Police Departments and Officers in West Virginia for Auto Accidents Resulting From Pursuit Situations

Here is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia a few weeks ago which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia.  This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:

Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party.  It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).  

As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct.  However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.”  Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights.  With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.

Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera.  The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5.  For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.

West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:

(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1)      Park or stand, irrespective of the provisions of this chapter;

(2)     Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3)     Exceed the speed limits so long as he does not endanger life or  property;

(4)     Disregard regulations governing the direction of movement of [or]  turning in specified directions.

(c)     The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible          signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.

(d)      The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.  

In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic.  Specifically, the Peak Court reasoned:

Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.

Peak, 185 W.Va. at 558, 408 S.E.2d at 310.

There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect.  This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds).  But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990).  But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).  

In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.

Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers 

“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”

The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless.  Regarding Sergeant Miller’s affidavit, the Court noted that:

The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.

Sergent, at S.E. Page 320-21.

Note:  If you or a loved one has been injured in an auto accident involving a police department, or other governmental, vehicle, please know that recovering compensation for those injuries is made infinitely more complicated due to immunity and causation problems.  It’s extremely important that you speak with an attorney who has experience with these types of cases.  I offer free consultations and (potentially) accept these types of cases in all 55 West Virginia counties.  Call me at 1-888-54-JBLAW.

 - John H. Bryan, West Virginia Car Accident Attorney.

I Was a Passenger in a Car Accident, Can I Sue The Driver?

This is a common question for many car accident victims. The answer, in West Virginia anyways, is yes – if the driver was negligent. The driver of the car owes a duty to any passengers in the vehicle, a duty not to drive negligently or recklessly. If the driver breaches that duty and ends up crashing the vehicle, either in a single vehicle accident or with another car, then he or she is liable to any passengers, as well as occupants of the other vehicle. This means that the driver’s insurance will be liable for any personal injuries sustained up to the policy limits.

There are other issue however, that need to be examined thoroughly by a West Virginia car accident attorney, such as: are there any other insurance polices that could provide coverage, such as the passenger’s vehicle insurance or underinsured driver’s coverage? Another concern is that if there have been several people injured, there may be insufficient coverage for all of the injured persons. Each situation must be examined individually and will bring unique issues, all of which should be quickly addressed by a West Virginia car accident lawyer.

– John H. Bryan, West Virginia Car Accident Attorney.

School Bus and Car Collide in Greenbrier County

From the Register-Herald:

Yet another accident involving a school bus loaded with children, this time in Greenbrier County, WV.

A Greenbrier County school bus with seven children aboard collided with another vehicle Wednesday in what school officials called a “minor accident.”

Superintendent John Curry said the accident happened in the Ft. Spring area about 4:30 p.m.

“We had a bus going around a blind curve and the bus and the car side swiped,” Curry said. “Nobody was hurt and the seven middle school children aboard were all transported home by their parents, who lived close by.”

No citations were issued by police.

Its odd that the police did not issue any citations. One of the drivers had to have been left of center in order for them to have collided – assuming this was a two-lane road. Regardless, both are probably at fault. If you are going around a blind curve, you have to slow down and approach with caution, keeping as far as you can on your side of the road – especially if you are driving a school bus. Fortunately none of the children were injured. It amazes me how children come out of the school bus crashes with no injuries, despite the fact that these buses don’t even have seat belts (to my knowledge).

Read the full article here.

– John H. Bryan, West Virginia Car Accident Attorney.

Hearse Leading Funeral Procession Involved in Head-on Collision in Beckley – Creates Unique Car Accident Law Issues

From the Register-Herald today:

A hearse from Ritchie & Johnson Funeral Parlor leading a funeral cortege was involved in a head-on collision Monday shortly after noon.
Rick Barbero / Register-Herald Photographer

A hearse leading a funeral cortege was involved in a head-on collision Monday shortly after noon, according to the Beckley Police Department.

Police said the Ritchie & Johnson Funeral Parlor hearse was traveling northbound around the 900 block of South Kana-wha Street when it was hit by a 1993 Chevrolet Cavalier driven by Amanda Bonds. Police did not release her age and hometown.

Police said Bonds was traveling south when her vehicle struck a 2007 Chevrolet Avalanche on its driver’s side. Bonds’ vehicle continued south before crossing the center line and hitting the hearse head-on.

The funeral procession was held up for about 30 minutes while the casket carrying the deceased was transferred to another hearse. All of the funeral procession vehicles were using headlights and emergency flashers en route to the cemetery, funeral home officials said.

Police said the accident investigation is ongoing, but citations were pending.

This is an awful situation to have a hearse involved in a head-on collision while actually leading a funeral procession. To those of us who are West Virginia car accident lawyers, this situation creates some extremely unique car accident law issues. For instance, citations are “pending,” but who is going to get cited? There will be several different insurance companies involved, as well as workers compensation. Liability will have to be determined between the three drivers involved. Lastly, given that the hearse was itself struck, there could potentially be some damages claimed by the family of the deceased occupant of the hearse, depending on the circumstances.

Read the full article here.

– John H. Bryan, West Virginia Car Accident Attorney.

Drowsy Driving Leads to Many Car Crashes in West Virginia, Though Most Can Be Prevented

The AAA Foundation for Traffic Safety is a great resource for automobile safety and can be very useful to a car accident lawyer when researching specific causes of car accidents, such as drowsy driving. On their website, they have several FAQ’s that deal with drowsy driving in particular.

Drowsy driving is not just a problem in West Virginia. The National Highway Traffic Safety Administration (NHTSA) conservatively estimates that 100,000 police-reported crashes are the direct result of driver fatigue each year, resulting in an estimated 1,500 deaths, 71,000 injuries, and $12.5 billion in monetary losses.

Definitions of drowsy driving generally involve varying uses and definitions of fatigue, sleepiness, and exhaustion. For the purpose of the discussion at hand, drowsy driving is simply driving in a physical state in which the driver’s alertness is appreciably lower than it would be if the driver were “well rested” and “fully awake.”

The inability of a sleeping driver to try to avoid crashing makes this type of crash especially severe. Some studies have found people’s cognitive-psychomotor abilities to be as impaired after 24 hours without sleep as with a BAC of 0.10%, which is higher than the legal limit for DWI conviction in all US states.

I have included some of the more important FAQ’s from their website:

What are the warning signs of drowsy driving?

Some warnings signs you may experience that signify drowsiness while driving are:

The inability to recall the last few miles traveled,
Having disconnected or wandering thoughts,
Having difficulty focusing or keeping your eyes open,
Feeling as though your head is very heavy,
Drifting out of your driving lane, perhaps driving on the rumble strips,
Yawning repeatedly,
Accidentally tailgating other vehicles,
Missing traffic signs.
In fact, drowsy drivers sometimes drive so poorly that they might appear to be drunk. In a survey of police officers conducted by the AAA Foundation for Traffic Safety, nearly 90 percent of responding officers had at least once pulled over a driver who they expected to find intoxicated, but turned out to be sleepy (and not intoxicated).

What are the specific at-risk groups affected by drowsy driving?

The specific at-risk group for drowsy-driving-related crashes comprises people who drive after having not slept enough, qualitatively or quantitatively. If you’re tired and you’re driving, you are at risk. In general, individuals who are “most at-risk for being at-risk” of drowsy driving include:

Young People : Sleep-related crashes are most common in young people, especially those who tend to stay up late, sleep too little, and drive at night – a dangerous combination. A study by the National Highway Traffic Safety Administration and the State of New York found that young drivers are more than 4 times more likely to have sleep-related crashes than are drivers over age 30.

Shift Workers and People with Long Work Hours : Shift workers and people who work long hours are at high risk of being involved in a sleep-related crash. The human body never fully adjusts to shift work, according to the National Sleep Foundation. The body’s sleep and wake cycles are dictated by light and dark cycles, and generally will lead one to feel sleepy between midnight and 6 AM. For more information, see the National Sleep Foundation’s Sleep Strategies for Shift Workers.

People with Undiagnosed or Untreated Sleep Disorders : Approximately 40 million people are believed to have some kind of sleep disorder. Many different sleep disorders result in excessive daytime sleepiness, placing this group at high risk for sleep-related crashes. Common sleep disorders that often go unnoticed or undiagnosed include sleep apnea, narcolepsy, and restless leg syndrome. You can learn more about these and other sleep disorders by visiting the National Sleep Foundation web site.

Business Travelers : Business travelers struggle with jet lag, a common sleep disorder that causes sleepiness and negatively affects alertness. “Jet lag” as well as long work hours put these weary travelers at increased risk for sleep-related crashes.

Finally, it is important to realize that although these specific groups of people are statistically most likely to be involved in drowsy driving crashes, one who does not fall into any of these groups is by no means “immune” to drowsy driving. “Average drivers” who don’t happen to be under age 30, working the night shift, traveling for business, or suffering from sleep apnea are still at risk if they drive while fatigued.

What about coffee? Won’t that keep me awake?

Not necessarily. The “perk” that comes from drinking a cup of coffee may take a half hour or so to “kick in,” is relatively short in duration, and will be less effective for those who regularly consume caffeine (i.e., most people). If you’re very sleepy, and rely on caffeine to allow you to continue driving, you are likely to experience “microsleeps,” in which you doze off for four or five seconds, which doesn’t sound like long, but is still plenty of time to drive off of the road or over the centerline and crash.

Read the entire article here.

– John H. Bryan, West Virginia Car Accident Attorney.

Should You Contact an Attorney After a Car Accident in WV?

Should you contact an attorney after a car accident in West Virginia?

The short answer is, that it depends. If the car wreck was minor and there obviously have not been any injuries, then it may not be necessary to contact a car accident lawyer in West Virginia. However, if you or anyone you care about has been injured in the car accident, especially if there is any permanent injury, or significant time is lost from work or school or household duties, then you’ll want to see a lawyer about possibly representing you in a claim against anyone else who may be responsible for your injuries. However, even if you’re not injured, don’t entirely rule it out as the facts and circumstances surrounding car accidents are always different.

Contacting an attorney who deals with personal injury (especially relating to auto accidents) can provide you with the peace of mind that no stone gets left unturned. It is especially important to contact an car accident lawyer immediately if any of the following events have occurred:

– An injury has occurred where there has been serious injury (broken bones / hospitalization) or where injuries are likely to be permanent (paralysis);
– A death has resulted from the accident;
– Fault is clearly an issue;
– Other parties were involved such as pedestrians or other autos;
– The accident occurred in a construction area;
– A police report does not accurately describe the accident and puts you at fault;
– Important technical, legal or medical issues are involved;
– The limits of your liability insurance are low,
– You have no insurance, or your insurance company suggests that you did not pay your premium.
– Your insurer starts “acting funny.”
– Your insurer involves its own attorney

Other reasons to speak with a West Virginia car accident lawyer include:

– Seeking advice on the settlement value of a claim (while not an exact science, attorneys may be able to provide best and worse case scenarios);
– Unsure if other insurance (homeowners, travel, etc.) may be available;
– Fault may be an issue;
– Determining whether your insurer may be acting in bad faith (not looking out for your best interests);
– Seeking information on how to handle negotiations with an insurer;
– You don’t know your rights;
– Confused over the terms of your policy;
– Needing an expert to review confusing paperwork or forms.

– John H. Bryan, West Virginia Car Accident Attorney.

Can a Passenger Recover Damages for Accident Injuries Caused by the Driver in WV?

Can a passenger recover damages for accident injuries caused by the driver in the State of West Virginia?

Yes, in West Virginia, if the driver of the vehicle is guilty of ordinary negligence, then passengers in the vehicle can recover damages from the insurance policy covering the vehicle. It is important to note however, that in situations where alcohol is involved, the passenger may be guilty of comparative negligence in causing his or her own injuries by getting into the car in the first place if there is a resulting alcohol-related car wreck. Additionally, passengers can be liable to other victims of the car wreck under certain circumstances if they allowed or encouraged the driver to drive impaired. See my earlier posts regarding alcohol and passengers.

– John H. Bryan, West Virginia Car Accident Attorney.

Importance of Seat Belts in WV Car Accident Law

West Virginia, like almost every other state, has a mandatory seat belt law. Thus, there is a limited “seat belt defense” which means if you are injured in a car crash while not wearing a seat belt, and the injury was caused or made worse due to the lack of a seat belt, the amount of damages you can collect may be reduced.

In other words, you are “comparatively negligent” and therefore are partially responsible for causing your own injuries, even if you were not responsible for the accident itself. It is important to consult an experienced auto accident attorney for advice regarding your particular situation.

– John H. Bryan, West Virginia Car Accident Attorney.

Comparative Negligence, Proximate Cause, and Intervening Causes in WV Car Accident Law

What is the importance of “comparative negligence”, “proximate cause”, and “intervening causes” in West Virginia Car Accident Law?

“Comparative negligence” comes into play when both parties have failed to act reasonably – for example, when someone speeding in dense fog hits another car that had no headlights on. In a situation where each party has some degree of negligence in causing an accident, the responsibility to the other person is reduced by one’s own degree of negligence. In the example above, the driver going too fast in the fog may be 60% negligent and bear 60% of the liability, while the driver without headlights may bear 40% of the negligence and be 40% liable.

“Proximate cause” is an act which sets off a natural and continuous sequence of events that produces injury. Without the act, no injury would have resulted. Any time you act, you start a series of natural and continuous events to occur (simple cause and effect, like when you touch the surface of still water and ripples are created). Responsibility for an injury lies with the negligent act that produced the injury. For example, suppose you throw a ball that rolls down a hill; after the ball rolls down the hill, a stranger picks it up and throws it through a window, causing the glass to shatter; the glass shards hit a woman, cutting her arm. In this example, although you caused the ball’s initial movement, your act is not the proximate cause of the injury to the woman sitting next to the window. The stranger’s act is the proximate cause of her injury, and he should be the one to pay for her medical treatment.

An “intervening cause” alters the natural and continuous series of events that follows. When an intervening cause is present, the natural chain of events has been changed due to the subsequent act of another, and the first actor may be relieved of responsibility for an injury. In the example above, the act of the stranger picking up the ball and throwing it through the window is an intervening cause which relieves you from the responsibility for injury which may have occurred as a result of your act. The responsibility shifts, and the stranger’s act becomes the proximate cause of her injury.

To bear responsibility for injury to others in a car accident, your negligent action (or failure to act) must be the proximate cause of the injury, without any intervening causes interrupting the natural sequence of events.

– John H. Bryan, West Virginia Car Accident Attorney.

Who Pays for Property Damage and Medical Bills after a Car Accident in WV?

Who pays for property damage and medical bills after a car accident in WV?

The answer to this question depends on your own financial resources and the circumstances of the accident.

Typical sources of compensation for damages sustained in a car
accident include:

(1) Your Car Insurance Company – Whether your insurance will compensate you for your loss depends on your insurance contract. In many contracts, there are considerations for both the first party (you and your vehicle) and any third parties (passengers, other drivers; and their property). Some contracts provide medical coverage for personal injuryof the insured and your passengers. In West Virginia, this is called “med pay,” and usually ranges from about $5,000 to $10,000. It is also important to note that any medical payments made by “med pay” will have to be paid back if you end up receiving a settlement or judgment. The policy may pay for collision repairs and possibly for a car rental while your damaged car is being fixed.

(2) Your Health Insurance Provider – You may have private health insurance or belong to an HMO. In the event of a personal injury from a car accident, you can ask your health insurer to pay for medical treatment. Sometimes, private health insurance plans or HMOs require you to seek recovery from your auto insurance company before the health organization will pay or provide medical treatment. Like “med pay,” in West Virginia, your health insurance will have a lien on any future settlement or judgment that you obtain. So it is important to realize that any future recovery that you receive will automatically subtract these subrogate amounts before you receive a dime of the recovery.

(3) Other People Involved In the Accident – In addition to the three sources above, you may be able to seek recovery from other people who were involved in the accident. West Virginia is an “at fault” states, so this option depends on how fault is apportioned among the other driver(s). This is also subject to the comparative negligence analysis (see my prior posts regarding “fault”). If you are “at-fault” for an accident that occurred in a “fault” state, contact your insurance company. It is the company’s job to defend you in court or to negotiate a settlement.

– John H. Bryan, West Virginia Car Accident Attorney.