Thursday, September 10, 2015

55 Years Ago: Hurricane Donna Attacks Hampton Roads

The civilian tug Virginian lies wrecked along the waterfront of Naval Station Norfolk, which received 94 mile-per-hour winds and over three and a half inches of rain from Hurricane Donna during the September 12, 1960 onslaught.  Her crew of five escaped with the help of Sailors from the nearby Naval Supply Center (Official U.S. Navy photograph via the Virginian-Pilot). 
The legacies of historic events are always with us, in one form or another.  The same age-old dynamics that shaped history in ages past continue to shape our present.  One of these is the weather.

Sometimes the effects wrought by weather events are on a grand scale, and for the Hampton Roads Sailor, hurricanes in particular have wrought dramatic and profound changes over the years in our area.  For example, the most prominent local geographic feature to have been shaped by such events during recorded history is Willoughby Spit, said to have been formed and shaped by massive hurricanes in 1749 and 1806.     

Such events have also shaped our present in more subtle ways.  It is with this in mind I would like to bring into remembrance one of the more destructive storms to make landfall in Hampton Roads during the last century, and how a tragic yet little-noted accident that befell a local Sailor in the wake of that hurricane made an impact that still resonates in courtrooms today.

(Photographed by Keith Mosher, The Seabag)
Hurricane Donna, which swept through the area early on September 12, 1960, buffeted Naval Station Norfolk that morning with up to 94 mile-an-hour winds, smashing the Norfolk Dredging Company tug Virginian at the naval station pier, ripping the asphalt along the waterfront into massive jagged pieces, and nearly tearing the destroyer Zellars (DD-777) from her moorings.  And in the words of Virginian-Pilot reporter Richard Mansfield, “The base golf course became a huge water hazard.” 

Indirect damages inflicted by Hurricane Donna on the Navy in Hampton Roads included the loss of two fighters from Naval Air Station Oceana in Virginia Beach when they failed to reach their destination in New York, though both pilots were rescued safely. 

Around the city of Norfolk, over 1,000 trees were felled, at least 800 of which blocked streets and cut power to over half of the city’s residents.  This brings us to the tragic event that happened to two Sailors then stationed aboard the repair ship USS Amphion (AR-13) nearly half a day after the height of the storm.   

(Photographed by Keith Mosher, The Seabag)
Neither Sailor had been able to make it aboard on Sunday, September 11, when Amphion left for open water to evade Hurricane Donna, so both had reported to the receiving station, then part of the Naval Support Activity, that evening. The two had been on liberty separately since shortly after noon on Monday, but had met up in the hours since.  By around 7 pm, 23-year-old Jimmy L. Dotson, driving a friend's car, and his passenger, 19-year-old Robert A. Fenon, were traveling northwest on Jamestown Crescent towards Hampton Boulevard, back towards the naval station, when they struck a large tree that had fallen into the road earlier that day.      

(Photographed by Keith Mosher, The Seabag)

City workers had placed a yellow sawhorse just ahead of where the tree trunk jutted into the northbound lane, which Dotson did not notice in the darkened street until it was too late.  Fenon was thrown from the car when its right side was ripped away during the impact, and his unconscious body came to a rest 102 feet from where the car struck the tree, while his right arm and parts of the car’s interior remained near the point of impact.  Luckily a doctor also came upon the scene and helped save Fenon’s life. 
The court case that sprang from that event, Fenon v. City of Norfolk, would become a watershed moment for a tactic known as the “sovereign immunity” defense.  

(Photographed by Keith Mosher, The Seabag)
Through his attorney, Fenon filed a lawsuit on October 13, 1960 against the City of Norfolk for $185,000 in damages, alleging that the city neglected its “obligation to use reasonable care to maintain and keep its streets at all times in reasonably safe conditions for traveling,” and that it “negligently and carelessly” failed to “keep the…street in a reasonably safe condition for travel in the usual mode… by placing a barricade in the street … leaving same without lights or proper warning to approaching traffic….”

During the opening stage of the trial, which took place on February 15, 1961, a witness who lived near the accident scene, one of several who seemed to support Fenon’s allegations, testified that the stretch of Jamestown Cresent around the accident scene “was completely dark and it was just like coming upon a nightmare.”

After almost two months at Portsmouth Naval Hospital and a further stay at the naval hospital in Philadelphia, it was finally Fenon’s own turn to take the stand.  “They told me at the hospital that my Navy career is ruined,” Fenon told the court.  “I am out now and I can’t follow that trade no more."

Despite the consistent testimony of Fenon's witnesses, including one from the city highway department, that only a yellow unlighted wooden sawhorse would have alerted oncoming drivers to the fallen tree blocking the lane, deprived as it was of working streetlights in the wake of Hurricane Donna, there were a number of ways Norfolk city attorney Leonard H. Davis could have defended the city from Fenon's lawsuit.  There were inconsistencies in testimony between Dotson, Fenon and the police officer who investigated the accident.  Even Judge Clyde H. Jacob remarked after the first day's testimony that, in his words, the "broken-down car with lights that did not comply with the law," they had been riding around in was but one "proximate cause" of the accident, and that in his opinion, "if the City hadn't worked at all, hadn't gotten around to this tree, this accident would still have happened."

With such an irresolute case put forth by the plaintiff, and knowing the judges' feelings as to the merit of Fenon's case, Davis could have used reason and logic to methodically deconstruct, discredit, and ultimately demolish Fenon's case; the sort of activity lawyers are typically expected to engage in to win over a jury.  Davis, however, would pursue a very different strategy; one that would render evidence and testimony, not to mention a jury, irrelevant.  He would win this case on a technicality.

Davis did not refute Fenon's charge that city workers had been negligent in dealing with Hurricane Donna's aftermath.  Two who cleaned up the particular section of Norfolk where the accident took place on September 12  freely admitted on the stand that they only had a couple of axes and no saws with which to cut wood, and despite testimony from city officials that the hurricane had left the streets more clogged with debris than any single storm in the previous quarter-century, the workers still left work at their regular time that day because, in the words of one, "It was knocking-off time."

Rather than continuing to engage in litigious interplay with Fenon's attorney in a set-piece game to determine the relative merit of either side's cases, Davis merely declared that his client was immune to prosecution.  In Judge Clyde H. Jacob’s chambers after all witnesses had given their testimony on the afternoon of February 15, Davis moved to strike the plaintiff's evidence on the grounds that, among others, “that in this situation, in doing what it was doing at the time, the City was acting in its governmental capacity, was performing a governmental function and it is immune from liability even if it might be said that it was guilty of any negligence in the performance of that function [emphasis mine].”

The following morning, Judge Jacob granted Davis' motion, informing the jury:
Gentlemen of the jury, during your absence council for the defendant, City of Norfolk, moved to strike out the plaintiff’s evidence as not being sufficient in law to submit to you for a verdict against the city.  The Court has sustained that motion.  The Court is not required to tell you the reason for its ruling but you have sat here yesterday and part of today; you may be curious to know it.  The court holds and has held that the work being done on Jamestown Crescent by City employees was done in the performance of the governmental duty that the City owes the public. With the exception of repairing streets, the City is not liable for torts of its employees. The employee himself is liable but the City is not; it has that immunity; and for that reason the City cannot be held liable if the work they were doing was in the performance of a governmental function. The Court has stricken the evidence of the plaintiff.

And with that, Jacob discharged the jury from further consideration of Fenon's testimony or that of his witnesses and issued a summary judgment for the plaintiff.


North American FJ-3 Fury fighters of Fighter Squadron 61 (VF-61) Jolly Rogers on the flight line of Naval Air Station Oceana in Virginia Beach, circa 1955.  Two Oceana-based FJ-3s crashed near Hamden,  New York, after going off course and running out of fuel, although their pilots ejected safely.  A total of 39 aircraft were moved from NAS Oceana and 31 others were moved from NAS Norfolk as Hurricane Donna approached on September 11, 1960.   (National Museum of Naval Aviation via Wikimedia Commons)

On February 16, 1961, the Circuit Court of the City of Norfolk found for the city, and that “said plaintiff take nothing by his suit and said defendant go hence without day and recover against said plaintiff its costs about its defense in this behalf expended, to all of which said plaintiff, by counsel, duly excepted.” 

Fenon then appealed to the Supreme Court of Virginia, which rendered a judgment on June 11, 1962 virtually unchanged from that rendered by Judge Jacob.  From then on, a legal precedent was set that continues to be cited in civil, maritime and even admiralty law today.  “As a general rule in most states,” a 2008 textbook on maritime and admiralty law citing the case states, “municipal governments are immune from liability for negligence in performing governmental functions, but for negligence in performing proprietary functions.” 
Writing in Virginia Lawyer magazine, Norfolk attorneys David N. Anthony and Beth V. McMahon explained, “A city or municipality engages in two types of functions: governmental functions (which are like the functions undertaken by the state) and proprietary functions (which are more akin to the functions of a private corporation).”  Fenon v. City of Norfolk helped set the definition that “A governmental function advances or protects general public health and safety,” as opposed to proprietary functions, which are characterized by the municipality performing tasks that private entities otherwise would, usually for a fee.  

Citing case law such as that established by Fenon, city attorneys across the Commonwealth of Virginia can claim sovereign immunity in order to thwart or nullify legal action stemming from "governmental functions" performed by city employees, regardless of how poorly or dangerously they are performed, and despite the fact that different courts continue to disagree just what the precise definition of “governmental functions” is. 

In stark contrast to the still-relevant court case that bears his name, Robert A. Fenon only lived another decade after losing the Virginia Supreme Court case.  He died in June of 1972, at the age of 30.   

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