Chincoteague Has Immunity

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By Linda Cicoira — The Town of Chincoteague and three staff members were protected by sovereign immunity — “a doctrine that says they cannot commit a legal wrong” — in a $750,000 lawsuit that alleged “unwanted and unauthorized chemicals” sprayed for mosquito control by town workers caused the late Joseph W. Abell to suffer severe personal discomfort, respiratory distress, and other damages.

Judge W. Revell Lewis made the determination Wednesday and also ruled the spray was not a nuisance that would affect the public and that the spray did not amount to trespassing. 

A six-member jury was selected Tuesday and evidence from both sides was heard. But before closing statements were made or the jury could begin deliberations, motions asking Lewis to dismiss the complaints convinced the judge there was no merit to the allegations.

Lawyer Kevin Martingale, of Virginia Beach, who represented widow Geraldine Florence Abell, claimed former Town Manager Robert Ritter, Public Works Director Harvey William Spurlock Jr., and Mosquito Control Supervisor Robert Joseph Watson were negligent in their duties to keep her property from being sprayed.

Martingale said despite that the Abells’ property was added to a list of those not to be sprayed, the sprayings occurred often, if not daily, with no prior notice. Joseph Abell died in January 2016.

Geraldine Abell showed the jury her husband’s photo from his last Christmas, and she presented letters her husband wrote to the town that asked that the spraying cease. 

“His opinion was the town didn’t care and that’s about it,” she said. “He was angry. He was a person who lived in the town. His opinion didn’t matter.”

Abell said her husband retired in 1975 when he was 38 because he had a brain aneurysm. He was a heavy smoker and developed emphysema, a chronic lung disease, COPD (chronic obstructive pulmonary disease), and asthma. She said the mosquito spray caused his problems to worsen.

No medical evidence that her claim was true was presented, according to the court.

“We had our own little pharmacy in the house,” she said. “I’m a nurse. I took care of him.” She said when the smell of the spray would seep into their house, “The look on his face … if you’ve ever seen anyone in pain … I can’t describe it. …  I heard him breathing. It sounded like Rice Krispies after you put the milk on it. Snap, crackle, pop.”

Thomas Walp, of Salisbury, Md., testified that when he first started the spraying job, a route was not provided so he didn’t realize he had sprayed in the road in front of the Abell house until he had gotten past it. He went back to the house and apologized but later wished he hadn’t because of the poor reception he received. 

Geraldine Abell’s complaint stated Ritter had supervisory authority over the other defendants. Spurlock was Watson’s supervisor.

Ritter told a reporter Tuesday that he was living in Maryland and working in Lovettsville, Va., which is in Loudoun County. He was hired as the town’s manager in November 2018.

Ritter was fired from his 10-year job with Chincoteague in November 2016 following a closed session of the town council. After the vote, he was escorted from the premises. Ritter was given 90 days severance pay, about $25,000 of his annual salary of $101,000. In May 2017, he became manager of the Northern Virginia town of Dumfries. Ritter was reportedly fired in August 2018 from Dumfries because “he was not a good fit for the town.” Ritter explained to a Loudoun newspaper that in both situations a new mayor and new council members “wanted to go in a new direction.”

Former Councilman Jim Frese said Ritter lost his job because “he didn’t interact well with people. People would bring a problem to him and it was like it never happened.” Frese told the court when he brought Joseph Abell’s complaint to Ritter, the town manager told him “the Abells were a pain in the ass. He never did anything.”

“If there’s nothing harmful about it (the spray) why is it regulated by the state of Virginia?” Martingale asked before the trial. “It’s obviously very dangerous … Some people have a sensitivity to the spray … he was already a very fragile breather. Letters (were sent) from three doctors. They can’t claim that they didn’t know.”

According to the court file, a letter from Abell’s doctor, Edward Rusche, of Towson, Md., was dated July 2, 2013, and sent to the town regarding Abells’ Chicken City Road home. “His lung functions are critically low and inhaled chemical pollution could cause a further constriction, temporary or even permanent, of the already critically narrowed airways in his lungs. Occupational dusts and chemical pollutions in general are a frequent cause of hospital admissions for severe shortness of breath in patients with asthma, but also for patients who do not have classical asthma but other obstructive airway disease with a bronchospastic component. I would recommend that the effects of mosquito spraying be seriously considered and accommodations be made to minimize the ill effects of Mr. Joseph Abell.”