On December 16, 2009, Gloucester Circuit Court heard the Demurrer and the Plea in Bar of Virginia sovereign immunity in the brain injury case of Gagnon v. Burns, No.
CL08-572. At 9:15 p.m., after a 12-hour trial, Judge Long ruled in favor of Plaintiffs, who are represented by Avery T. “Sandy” Waterman, Jr., Esq.

The only witnesses Defendant Burns called in this special case besides himself were his self-interested co-Defendants: James Newsome, the admitted attacker who was prosecuted criminally for his offense against the victim; and his sister, Christine Newsome, who at least one witness says egged on her brother to punch the victim, Greg Gagnon. The self-serving accounts of the Newsomes about a supposedly demeaning profane remark being made by the victim were refuted by a non-party witness for Plaintiffs, fellow student eyewitness, Ronnie Miller; and by James Newsome’s own contemporaneous signed statement admitted into evidence, which showed no such remark at all.

Conversely, Plaintiffs called 10 witnesses on their behalf, mostly non-parties. Five witnesses testified that in Gagnon Assistant Principal Burns at Gloucester High School (“GHS”) admitted his fault to each of them independently in strong terms shortly after the attack. Former student Shannon Diaz testified Burns “apologized for dropping the ball”. Gloucester County Deputy Carwell testified Burns admitted, “I screwed up.” Gloucester County Sergeant Shuster testified Burns admitted, “I made a big mistake. I thought I had told you guys about it.” The brain injury victim’s father testified Burns admitted, “I feel I owe you an apology because I ‘dropped the ball’. I could have done something to stop this but didn’t.” The victim’s mother testified Burns admitted, “I know that you know that I talked to Shannon Diaz, and I am very sorry because I dropped the ball.”

Further, Burns admitted in Gagnon that he disposed of his handwritten note about his meeting with Diaz and his school calendar for the day of the attack. Plaintiffs asserted that was contemporaneous evidence spoliation in the special case.

In closing, Mr. Waterman stressed that Burns simply had failed to perform a “ministerial act,” i.e., a “no-brainer” (requiring no real discretion). He analogized that Burns ignoring the warning and brain injury following was like an Emergency Room doctor failing to address chest pains as a potential heart attack and instead wrongfully blowing them off summarily as only indigestion.

The Gloucester Court in Gagnon sat as trier of fact without a jury, including as to the issues of negligence of Burns; as requested by Defendant and Plaintiffs. The Court believed that the most persuasive authority was B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F.Supp. 560 (E.D.Va. 1993)(Virginia law), and applied the four-factor test of Virginia sovereign immunity enunciated in Messina v. Burden, 228 Va. 301 (1984), relied upon therein. In this special case, only the test’s fourth prong was in issue: whether the act was discretionary or ministerial and whether there was any gross or simple negligence.

The Gagnon Court expressly found the testimony of Diaz and other witnesses of Plaintiffs more credible than the testimony of Burns and his Co-Defendant witnesses; found that the act of notifying GHS Security of the reported impending physical altercation omitted by Burns was a ministerial act; found that Burns was guilty of simple negligence, but not gross negligence, in the non-performance of that ministerial act; and found that the aforesaid findings are dispositive and preclusive as to the liability of Burns to Plaintiffs on the Amended Complaint. The Court overruled the Demurrer; denied the Plea in Bar; and ordered that Plaintiffs’ cause against Burns be set for separate trial forthwith only on the amount of damages for the brain injury as the sole remaining issue.

The Court denied Burns’ oral post-trial motion to strike the de bene esse deposition in this special case, which deposition was taken in the non-suited predecessor suit of a witness unavailable for this trial, Diaz. Burns participated in that companion suit deposition through his same counsel of record as in Gagnon.

Fortunately for Burns, as Assistant Principal at GHS, he enjoys $6,000,000.00 of liability insurance coverage for negligence in Gagnon. He is covered by a $1,000,000.00 liability policy, plus a $5,000,000.00 excess policy, for Gagnon’s brain injury.