Luau lawsuit a complex case

Published 10:31 pm Tuesday, May 17, 2011

The case of a lawsuit against the city of Suffolk is boiling down to whether the National Guard Armory was fulfilling a governmental purpose when a woman was pushed in line for entry to an event there.

The 83-year-old woman, Elizabeth Newby, died two weeks after the August 2009 incident from complications of a traumatic hip fracture. The woman who allegedly pushed her, Velma Brown, has been charged with involuntary manslaughter and is undergoing mental treatment.

Newby’s daughter, Denise Tynes, has sued the city for wrongful death, claiming the city acted negligently by failing to provide crowd control and by allowing employees to pick Newby up from the floor after her fall and place her in a chair.

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The women were attending a senior luau event sponsored by the Suffolk Department of Parks and Recreation at the National Guard Armory on Godwin Boulevard. Judge Rodham T. Delk must decide whether the building was being used for a governmental purpose when the incident occurred.

If it was being used for a governmental purpose, the city has sovereign immunity, attorneys said during a court hearing Tuesday on the case. If being operated as a recreational facility, the city has immunity from any claim of simple negligence but not from a claim of gross negligence.

Attorneys for both sides brought forth case law from negligence lawsuits against localities. The problem is that this seems to be the first case in Virginia involving an armory.

“Armories are a unique sort of building,” noted Ross Greene, an attorney with Pender and Coward who is working on this case for the city. “They’re not the most common building in the world.”

The Suffolk National Guard Armory is owned by the Virginia Department of Military Affairs. It is used by the National Guard to muster units when they’re called to active duty.

But when the building is unneeded by the National Guard, the city is allowed to use it for any lawful purpose in exchange for maintaining and operating it.

That’s what it was doing when the recreation department hosted the senior activity there, Greene argued. He used a 2000 lawsuit against a government-operated nursing home in Chesterfield County to plead his case.

“The city does maintain and operate the armory,” Greene said.

Verbena Askew, the plaintiff’s attorney, countered that the armory should be considered a recreational facility. She used a case stemming from a 1997 incident where a woman tripped over a feed bucket at a temporary petting zoo during a July 4 celebration sponsored by the Town of Cape Charles and the Cape Charles Chamber of Commerce, on land owned by the Chamber.

“My position is that case is analogous to this case,” Askew said.

Delk is expected to make a decision soon. Unless he finds that the city has sovereign immunity, the case will proceed to a jury trial.