eNotes: Liability – September 2023 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Colas v. Tyree
Virginia Supreme Court
No. 211226

Decided: January 26, 2023

Adverse witness testimony binds the party calling the adverse witness.

Background

Bradley Colas, a police officer, shot and killed Jeffrey Tyree. There was no dispute that Tyree was having a mental breakdown and suffering from suicidal ideation and agitation, at the time of the incident. After two and a half hours of attempting to negotiate with Tyree, who was on his mother’s lawn with a military-style knife threatening to kill himself, another officer, Tuft-Williams, tackled Tyree to the ground. When the two were laying on the ground, Tyree raised the knife again. Colas then shot and killed Tyree.

Lisa Tyree, as co-administrator of Tyree’s estate, filed suit against the involved officers, Colas and Tuft-Williams, alleging gross negligence and battery. A jury returned a verdict in favor of the estate on the battery count, but found for the defense on the gross negligence count. Colas appealed the battery judgment. At the trial of this matter, the estate called Colas as an adverse witness. He testified that he had a reasonable belief that he was shooting Tyree to defend Tuft-Williams from being stabbed.

Holding

The majority ruled in favor of Colas on appeal under the “adverse party witness” rule, which provides that when the opposing party calls an adverse party as a witness, the opposing party is bound by the testimony that is not contradicted and not inherently improbable. The Court reasoned that, as the estate called Colas as an adverse witness, it was bound by all of his testimony as far as it is not contradicted or improbable. The Court held that a reviewing court does not look to the witness’s credibility, but instead reviews the testimony and sifts through what is uncontradicted or incredible. Here, this meant that Colas’s testimony that shooting Tyree was justified to save Tuft-Williams, was binding upon the estate, as it was supported by other testimony, not directly contradicted, and was probable under the circumstances. As that testimony was binding, the estate could not prove the required elements of battery as a matter of law, as one of the elements is that the unlawful touching is not justified or excused.

Questions about this case can be directed to Mackenzie Payne at (571) 470-1906 or mpayne@tthlaw.com.