By Tom Jackman
Saturday, July 17, 2010; B06
A man who was shot five times outside a Fairfax County police station two years ago cleared the first legal hurdle in his attempt to sue the county and a police employee.
A judge ruled Friday that a hearing should be held to determine how severely incapacitated he was in the months after the shooting and whether that would have prevented him from filing the suit before the deadline.
Najib Gerdak, 28, was standing in front of the Franconia district station early Feb. 2, 2008, when he was shot five times by Jeffrey S. Koger.
Gerdak said that he had gone into the station before the shooting to alert police to a chase involving Koger and a cabdriver in the parking lot but that a civilian employee was asleep at the front desk and sent him back outside after he woke her. He went outside and was shot. He said he then waited more than 30 minutes for an ambulance. He survived but suffered permanent physical damage.
Gerdak's initial attorneys filed suit only against Koger, who is imprisoned and has few assets, and did not believe they had a case against the county. Gerdak hired another attorney, who sued Fairfax in May, beyond the two-year statute of limitations.
On Friday, Fairfax attorneys argued that the case should be dismissed.
Katherine Martell, Gerdak's new attorney, responded that Gerdak was incapacitated for months after the shooting, and that the two-year clock should not have started until he was out of the hospital and able to make decisions. Virginia law does allow that "the time during which he is incapacitated shall not be computed as any part of the [two-year] period." Gerdak's suit against Koger was not filed until March 2009, more than a year after the shooting.
Fairfax Assistant County Attorney John W. Burton said the state law provided for a two-year limit from the time of the injury, "no matter how extreme." Fairfax Circuit Court Judge Charles J. Maxfield responded, "So if a person is in a coma for two years, they've lost their cause of action?"
Maxfield said he didn't have enough information to decide whether Gerdak was sufficiently incapacitated that the statute of limitations clock should have been stopped, and he ordered the two sides to schedule an evidentiary hearing.
Next Friday, Gerdak faces another legal hurdle: Fairfax's argument that it is protected from such lawsuits by "sovereign immunity," or the inability to sue a governmental entity for performing its duty. That hurdle can only be overcome by a showing of gross negligence.