A motorcyclist who suffered a brain injury after he was hit on the helmet by the mirror on a passing school bus has mediated his claim against the driver and the school board for $7.5 million. 

A key issue in the case: Whether the bus driver could claim the sovereign immunity enjoyed by his employer, the Hampton School Board. By virtue of Virginia Code sections 22.1-190 and 22.1-194, school boards are immune for any damages in excess of $50,000. But in a declaratory judgment action, a Hampton judge ruled that the bus driver, though he was acting within the scope of his employment, is not eligible for that protection because at the time he had not picked up any students. 

The case is Watford v. Briggins and the School Board for the City of Hampton, Va. 

The plaintiff was riding his motorcycle to work on the morning of Oct. 11, 2001. The defendant driver was traveling in the opposite direction at approximately 30 mph in a Hampton City School bus he had just picked up from the bus lot. 

According to defense attorneys, he was on his way to pick up the first child on his route. Before he could do so, the driver failed to yield the right of way while making a left turn and struck the plaintiff in the head with the left front mirror of the bus. 

The plaintiff, who was wearing a motorcycle helmet, careened off the road, striking a telephone pole and a tree. He suffered a brain stem contusion and hemorrhage, as well as fractures to his pelvis, right tibia and right ankle. According to plaintiff’s experts, he will never be able to walk unassisted or be gainfully employed for the rest of his life. 

The bus driver testified to have not having seen the plaintiff, and only stopped the bus after he heard something collide with the driver’s side-mirror. There were no eyewitnesses to the accident.

 Sovereign Immunity 

The key to the case, according to both plaintiff’s and defendant’s counsel, was the determination of whether the driver was subject to immunity under Va. Code Sections 22.1-190 and 22.1-194, which grants sovereign immunity to a school board and its employees for damages exceeding $50,000. “That was the major part of this case,” said plaintiff’s attorney John E. Zydron. “At first it seemed that [the driver] was subject to the immunity because he was operating under the scope of his employment.” But in a declaratory judgment action filed by plaintiff’s counsel, the 1938 Virginia Supreme Court case of Wynn v. Gandy, 170 Va. 590, was cited. 

In that case, a bus driver was denied immunity because at the time of a collision, he was not engaged in the “governmental duty of transporting children.” 

“This whole case focused on the existence of [Wynn v. Gandy] because the Supreme Court holds that the mere operation of a school bus is ministerial,” said Zydron. In a similar 2001 Supreme Court case, Linhart v. Lawson (VLW 001-6-016), a bus driver was granted sovereign immunity because there were students on board the bus at the time an accident occurred. 

For this reason, a Hampton judge ruled that the driver was not subject to sovereign immunity. Liability was contested throughout the settlement process, with the defense arguing that the plaintiff was exceeding the speed limit. 

In the end though, both parties sought to avoid a jury trial and a settlement of $7.5 million was mediated. “No one disputed the injuries suffered by [the plaintiff],” sad defense attorney Alan B. Rashkind of Norfolk. “Both parties reached a compromise to ensure that funds were available to care for him and to end litigation without the risk that a jury would decide the case in a way that would be devastating to one side or the other,” he said.