Supervisors Denounce Suit Stemming From Fall on Icy Walk

By Bill Turque
Washington Post Staff Writer
Sunday, January 13, 2008

The Washington region was shaking off a weekend snowstorm as Richard Thaxton walked into Fairfax County's Juvenile and Domestic Relations Court building on the morning of Jan. 31, 2005. Crews had shoveled and salted the walkways after the slushy remains froze overnight.

Unfortunately, they missed a spot.

Thaxton, 66, slipped and landed hard, breaking eight ribs and re-injuring his right arm, which was mending from rotator cuff surgery two months earlier. The Annandale man sued for $300,000 plus legal fees -- and might win a $100,000 settlement.

Thaxton and his attorney told a judge that they just want recompense for a terrible fall. But his case landed with a thud at the Fairfax Board of Supervisors last week. Chairman Gerald E. Connolly called it "what's wrong with litigation in America." Another supervisor complained that the county was being penalized for trying to stay open during bad winter weather.

And at the heart of settlement negotiations was the question: How much judgment does it take to shovel snow?

Fairfax attorneys argued that the county was protected by "sovereign immunity," a centuries-old legal doctrine that literally means the king can do no wrong. In essence, it shields a government from being sued without its consent.

One key legal test for determining sovereign immunity is whether a government's employees are exercising good judgment and discretion in performing their duties. In this case, the county contended that Joel Bittdorf, the supervisor from the county's Department of Facilities Management, had inspected the sidewalks after the shoveling and salting. The county, in court papers, said this was sufficient to meet the test for immunity.

Neither Thaxton nor his attorney, Thomas B. Morrison of Fairfax City, returned phone messages seeking comment. In court pleadings, however, Morrison said Bittdorf and his subordinates had no judgments to make.

"If snow was on the ground, they shoveled it. If ice was on the sidewalk, they treated it," he wrote. In other words, they were simply negligent in carrying out a task.

In August, Fairfax Circuit Court Judge R. Terrence Ney sided with Thaxton. County Attorney David P. Bobzien, concerned that Thaxton was a sympathetic plaintiff who could potentially secure an award of more than $300,000 from a jury, asked the Board of Supervisors to approve a settlement of about $100,000 proposed by a neutral case evaluator.

But when Bobzien proposed it to the supervisors in an executive session Monday, he encountered resistance. State law allows public bodies to discuss litigation in private.

After reconvening in open session, Connolly (D) voiced his opposition.

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