Police station shooting suit in court
A Fairfax County judge Friday threw out one count of a lawsuit filed by a man who was shot five times in front of a Fairfax police station, ruling that the county is protected from civil lawsuits by its sovereign immunity. Further argument was scheduled on a second count.
Najib Gerdak, 28, of Springfield, alleges that on Feb. 2, 2008, he went into the Franconia district station to tell police that a cab driver was being pursued by a sport-utility vehicle and was asking for help. Gerdak said that a civilian employee inside the station was asleep, woke up and told him to go back outside and tell the cabbie to call his dispatcher.
Gerdak went back outside, where he was repeatedly shot by Jeffrey S. Koger. He survived, but suffered permanent injuries to his arms and upper body. He sued Koger, who is serving a 77-year prison term, Fairfax County and the civilian employee, identified only as Jane Doe.
Gerdak initially sued only Koger. After the two-year statute of limitations passed, he sued Fairfax and the employee. Fairfax asked for the suit to be dismissed on the statute of limitations grounds. Gerdak's lawyer, Katherine Martell, argued that Gerdak was incapacitated from the shooting for four months, stopping the two-year clock. Last week, a judge ordered an evidentiary hearing to determine the extent of Gerdak's incapacity in 2008.
But that hearing won't be held if Fairfax can get the case thrown out on other grounds. Friday, Chief Fairfax Circuit Court Judge Dennis J. Smith ruled that Gerdak's complaints alleging liability on its premises must be dismissed against Fairfax because counties in Virginia may not be sued in civil court. The suit also accuses the unnamed employee of negligence and gross negligence.
Smith did not rule on a second count against Fairfax, that the county not only failed to act, but actually created the danger to Gerdak by sending him back to the parking lot. The judge ordered both sides to submit further briefs.
If Fairfax wins that count, it will try to end Gerdak's suit by arguing that plaintiffs may not sue an anonymous defendant, namely the unidentified civilian employee. Martell has argued that the lawsuit sufficiently identifies the woman working the station counter at 3 a.m. on the night of the incident, that the county knows who the employee is, and that is sufficient for the case to proceed.
If the case does proceed against the employee, Fairfax would provide her attorney and pay any damages awarded. And Fairfax will argue that she also is protected by immunity, though to a lesser extent than the government itself. Gerdak would still have to show the employee acted with gross negligence for the case simply to survive pretrial motions.
-- Tom Jackman
July 23, 2010; 4:17 PM ET
Categories: Fairfax , From the Courthouse , Tom Jackman , Updates
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