Shooting victim clears first obstacle in filing suit against
Fairfax County
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. 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.