Bus fatality highlights fuzzy area of immunity
Is transportation a proprietary or governmental function?
- North Carolina appellate law addresses questions of governmental immunity for counties and cities in a variety of situations. But a lawsuit that centered on an 87-year-old pedestrian who died after an Asheville city bus hit him left attorneys on both sides stumped.
“We agreed at the mediation that there was not a case on point,” said attorney Jay Kerr, who represented the plaintiff. “There’s not a North Carolina appellate court case that has interpreted whether or not a transportation system is a proprietary or governmental function. Motions for summary judgment would have been immediately appealable because they would have been appealed on right … This particular issue is ripe and waiting for a case.”
Hoping to avoid the uncertainty of the appellate process, the city settled with the estate of the deceased, James Stroupe, for $485,000.
Joe McGuire, who represented the city, said North Carolina courts have established government immunity for counties and cities in cases involving police vehicles, ambulances and other service vehicles, but not for cases involving bus systems.
“The doctrine is somewhat uncertain at this point,” McGuire said.
An Asheville Transit System bus hit Stroupe on Oct. 27, 2010 , as he walked across a parking lot from his car to a grocery store. He died nine days later of injuries sustained in the accident. Kerr alleged that the city failed to use reasonable care in monitoring the hiring of the bus driver and in retaining and supervising him. Under North Carolina law, cities cannot negotiate with unions, so many cities hire private companies to manage bus drivers. Asheville contracted with First Transit Inc. to manage the drivers, and that contract indemnified the company of liability regarding drivers. McGuire said the city has a policy of paying out-of-pocket expenses for anyone injured in an accident for which their bus drivers are responsible, regardless of sovereign immunity.
The bus driver, Tolley Tate, pleaded guilty to a charge of misdemeanor death by vehicle. McGuire said the city acknowledged that the driver hit Stroupe and that the accident was due to the driver’s inattention. Kerr asserted that the design of the bus route through the shopping center parking lot played a part in the accident as well.
The lawyers traded written arguments before the mediation. At one point, Kerr noted the North Carolina appellate courts’ “modern tendency to restrict the application of governmental immunity.” He wrote that in the 1970s and ’80s, the North Carolina legislature expanded and clarified statutes regarding how government activities are defined as public enterprises. The courts have since declared enterprises such as sewage systems, trash collection, landfills and airports to be proprietary and not afforded governmental immunity.
At mediation, Kerr also presented a commissioned seven-minute video documentary of Stroupe’s life, which Kerr described as “‘The Notebook’ meets ‘The Greatest Generation.’” Stroupe survived military action in World War II, the Korean Conflict and Vietnam, and in his later years nursed his first wife through her battle with Alzheimer’s. In Asheville, Stroupe visited schools and got involved in local issues. He was survived by his second wife and an adult daughter.
Determining a dollar figure for that life was a bit tricky, Kerr said. He said the negotiations began at around $800,000.
“It’s hard to assess the value of an 87-year-old whose life expectancy may be five or six years,” he said.
Kerr said Stroupe’s pension and income from military disability and Social Security figured into the equation, as did his continuing activity and family life.
Verdicts & Settlements Report
Type of action: Wrongful death
Case name: Richard E. Stroupe, Executor for the Estate of James D. Stroupe v. City of Asheville; Transit Management of Asheville; First Transit and Mr. Tolley Tate
Mediator: Wayne P. Huckle, Huckle Law Mediations & Arbitrations
Date of settlement: March 1, 2012
Attorneys for plaintiff: Jay Kerr (Asheville)
Attorneys for defendant:
- Joe McGuire of McGuire, Wood & Bissette (Asheville)