Fairfax County will pay victim's family $1.5 million

By Tom Jackman and Derek Kravitz
Washington Post Staff Writers
Wednesday, January 27, 2010

Fairfax County agreed Tuesday to pay $1.5 million to the family of a woman who was killed by a Fairfax police officer in a crash on Route 1 in 2008, county supervisors said, settling a lawsuit against the officer that was set for a civil trial next month.

The settlement to the family of Ashley McIntosh, a 33-year-old kindergarten teacher's assistant, is thought to be one of the few times Fairfax has made an out-of-court settlement for an on-duty police car crash.

Board of Supervisors Chairman Sharon S. Bulova (D) said the settlement was "very fair" and that it resolved a "tragic incident."

Supervisor Gerald W. Hyland (D-Mount Vernon), who represents the district where the accident occurred, said the settlement represented the first time during his time on the board that the county police had settled a lawsuit involving a vehicle accident. Hyland has served on the Board since 1988. "It is very unusual to obtain this result, but as you've seen with the judge's rulings, there was fault," Hyland said.

McIntosh was driving her Toyota Corolla out of the Mount Vernon Plaza shopping center Feb. 12, 2008, and was pulling onto Route 1 with a green light. Officer Amanda R. Perry, then 22, was heading north on Route 1, with her emergency lights on but not her siren, when she drove through the red light at Boswell Road and struck McIntosh's car on the passenger side. McIntosh was ejected and died the next day.

Fairfax prosecutors charged Perry with reckless driving. She was found not guilty by a visiting judge from Stafford County in October 2008. McIntosh's family sued Perry for wrongful death.

That case took a crucial turn last August when a Fairfax Circuit Court judge ruled that Perry was not entitled to "sovereign immunity," as a government official performing her duties, because her actions were grossly negligent. In a pretrial hearing, Perry acknowledged that she didn't use her emergency lights for several miles while heading to a reported "fight in progress," in violation of police policy, although she believed the call was an emergency.

And the "fight" was actually the capture of a shoplifter, evidence at the hearing showed. Dispatchers sent text messages to Perry as she zoomed up Route 1 at 45 mph, tape from her in-car camera showed, but Perry said she didn't see them. The dispatchers didn't radio the information because an ice storm was hitting and the airwaves were busy.

Though Virginia law grants police an exemption from traffic laws in an emergency, Fairfax Circuit Court Judge R. Terrence Ney said the capture of a shoplifter, miles away at a Beacon Hill grocery, was not an emergency. Ney's ruling meant that attorneys for McIntosh's parents, John McIntosh and Cindy Colasanto, would only have to prove simple negligence at trial.

The county covers the legal bills for the actions of its officers on duty, so Perry is not personally liable. Police put her on administrative duties for more than a year after the crash without taking disciplinary action against her, until she was accused of falsifying her timecards and forced to resign last March. Her attorney, David J. Fudala, did not return messages.

"I'm relieved," Colasanto said. "I'm finally glad that Amanda Perry and Fairfax County are taking some responsibility" for the fatal accident.

© 2010 The Washington Post Company