Loading...
009-12RESOLUTION REGARDING CLAIM ASSERTED BY VERNON DOWNES WHEREAS, the County has received, apparently pursuant to the provisions of Virginia Code §§ 8.01 -195.1 et seq., 15.2 -209, and /or 15.2 -1243 et seq., notice (the "Notice ") of a claim (the "Claim "), dated June 12, 2012, asserted by Vernon Downes ( "Mr. Downes "); and WHEREAS, the Claim purports to assert that Mr. Downes, on June 17, 2011, allegedly sustained injuries while riding a bicycle into a chain allegedly strung across an area located near "Mulberry Terrace Road" and "Newtown Court Road ", in the Town of Stephens City; and WHEREAS, Virginia Code § 15.2 -209 provides that every claim cognizable against any county, city, or town for negligence shall be forever barred unless the claimant or his agent, attorney, or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued; and WHEREAS, the Notice alleges an injury occurred on June 17, 2011, but the Notice was not dated until June 12, 2012, and was not received by the County until subsequent to that date, and, therefore, was not filed with the County until after six months after the alleged injury occurred and any cause of action may have accrued; and WHEREAS, the Notice does not state the time the alleged injury occurred; and WHEREAS, County staff has further investigated the Claim and found that, among other things, the streets and area where Mr. Downes allegedly may have sustained injuries are private property and are neither owned nor maintained by the Commonwealth of Virginia, the County of Frederick, or the Town of Stephens City; and WHEREAS, the Claim is forever barred against the County, as being made beyond the applicable limitations period, and, further, the Notice fails to state the time of the alleged injury, and, as well, incorrectly alleges ownership and/or maintenance of the property involved by the County, and as to which the County could have been responsible, and, accordingly, the Claim is without merit and is not well - grounded in fact or law and must be disallowed. NOW, THEREFORE, BE IT RESOLVED, that the Board hereby disallows the Claim of Mr. Downes, as asserted in the Notice dated June 12, 2012. ADOPTED this S day of August, 2012. Richard C. Shickle Aye Gary A. Lofton Absent Ross P. Spicer Aye Bill M. Ewing Aye Christopher E. Collins Aye Gene E. Fisher Aye Charles S. DeHaven, Jr. Aye erk, Board of Supervisors County of Frederick, Virginia Resolution #009 -12 COUNTY OF FREDERICK Roderick B. Williams County Attorney 540/722 -8383 Fax 540/667 -0370 E -mail: rwillia@co.frederick.va.us MEMORANDUM TO: Board of Supervisors FROM: Roderick B. Williams County Attorney DATE: August 1, 2012 RE: Notice of Claim of Vernon Downes, dated June 12, 2012 By Ietter dated June 12, 2012, Vernon Downes, through counsel, submitted to the County a notice of a claim for certain personal injuries he allegedly sustained. A copy of the letter providing notice of the claim is attached for your reference. Specifically, Mr. Downes' counsel alleged that Mr. Downes was injured when he rode a bicycle into a chain erected across a pathway in the vicinity of "Mulberry Terrace Road" and "Newtown Court Road" in the Town of Stephens City. Mr. Downes' counsel alleged that the premises were owned and /or maintained by the Commonwealth, the County, or the Town of Stephens City and were apparently in some way unsafe. I have fully reviewed the letter from Mr. Downes' counsel and the procedural law applicable to it and I have investigated the ownership of the premises at issue. Mr. Downes' claim is without merit and is not well - grounded in fact or law. Mr. Downes' counsel presented the notice of claim beyond the applicable limitations period, the notice does not state the time of the alleged injury, and, further, the premises on which the circumstances alleged may have occurred is private property and is not owned by the Commonwealth, the County, or the Town of Stephens City. Accordingly, disallowance by the Board of the claim is appropriate and I have prepared a corresponding resolution for your approval. A copy of the proposed resolution is attached. 107 North Kent Street . Winchester, Virginia 22601 LAW FIRM Of MARILYN ANN SOLOMON *MARILYN ANN SOLOMON, ESQ. THOMAS W. ASHTON, Eso. 130 EAST C ORK STREET WINCHESTER, V IRGINIA 22601 (540) 678 -0569 (540) 678 -0687 FAX MASLAW @NTELOS.NET J111W 12, 2012 VIA CERTIFIED M AIL, RETURN RECEIPT REQUESTED The Hov, Kenneth T. Cucc:melli, II Attorney Gene -rat of Virginia. Office of flit:. Attorney Genera. i 900 East Main Street Rlichmond, VA 23219 Director, Division of Risk Management Department of the Treasury James Monroe Building, 3rd Floor 101 :tiorth'14th Street ,- Rid- tmond, VA 223219 Roderick B. C61ztity Attorney Frederick County Attorney 5 Office- 107 North Kett Street 3rd. Floor Winchester VA 22601 Michael K. Kehoe, Town Manager Town of Stephens City 10331roust Street - PO Box. 250 Stephens City, VA 22655 Re: Date of Incident, Tr, Whoa- it. 'y Cone"ei:ix: Virginia Tort Claims Act Notice of Claim for Vernon Downes pursuant to Code of Virginm § 8.01-195.6 (1950' amended) June 17, 2011 W� Wkite you. regarding injui. suffered by our client, Vernon. Downer, can June 1 Al l on Mulberry Terrace Road near Newtovm Court Road in the Toum of Stephens City and. /or Frederick County, Virginia.. On that date, Mr. Downes was riding his bicycle near *LICENSED 1N: VIRGINIA, WEST VIRGINIA, 1J.C. & FLORIDA the intersection of Mulberry Terrace Road and :Newtown Court Road The way ahead appeared to be free of obstruction, but as Mr. Downes was riding his bicycle, he was abruptly stopped by a chain strung across the toad, and was thrown off of his bicycle. Mr. Downes later discovered from a source familiar with the area that said chain had been in place across the road for at least several months. Mr. Downes' head and Face struck the pavement, as did his right hand, arm and leg. He suffered injury and damages to his head, face, neck, back and right arm and hand.. Mr. Downes suffered a concussion and injuries to his race and eye which resulted in ongoing treatment for cataracts and temporary and permanent loss of vision. Mr. Downes has ongoing, potentially permanent injuries resulting from this incident, including without limitation: the development or exacerbation of carpal tunnel syndrome in his right hand; development of cataracts; temporary and /or permanent reduction in or loss of vision; debilitating headaches; and other temporary and permanent physical. and emotional injury. He has also suffered ongoing pain and humiliation. Upon information and belief, the road on which 1V1r. Downes was riding his bicycle was owned by the County of Frederick and /or the Town of Stephens City, "Virginia. Additionally, or in the alternative, repay and /or maintenance of the road in a reasonably safe condition is the duty of the County of Frederick and /or the Town of Stephens City, Virginia. Because the County of Frederick and the Town of Stephens City are political subdivisions of the Commonwealth of Virginia, the Commonwealth of Virginia may also be liable. Upon information and belief, the County of Frederick, the Commonwealth of Virginia, and /or the Town of Stephens City breached their duty to maintain and /or repair the road, and /or to keep the same in a reasonably safe condition. Additionally, or in the alternative, the County of Frederick, the Commonwealth of Virginia, and /or the Town of Stephens City created an unsafe condition by stringing a chain across a public road which was difficult to see, yet which was strong enough to pose a great risk to the public, such as Mr. Downes. In any case, the County of Frederick, the Commonwealth of Virginia, and /or the Town of Stephens City were negligent and /or ate otherwise liable to Mr. Downes. We look forward to receiving your response, and stand ready to answer any questions or concerns which may arise. l om : as W. Ashton, Esq.