OPINION ISSUED JANUARY 23, 1998
LANE S. AND BARBARA S. BOHRER
DIVISION OF CORRECTIONS
Larry W. Blalock, Attorney At Law, for claimants.
Joy M. Cavallo, Assistant Attorney General, for the
The claimants in this case, Lane and Barbara Bohrer, seek
an award of damages resulting from the escape of convicted murderer
David Edward Williams from the West Virginia Penitentiary in
Moundsville. The respondent having stipulated to liability, the
Court held a hearing on the 9th day of September, 1997, to
determine appropriate damages.
The Notice of Claim filed herein arises out of an escape
which occurred on February 19, 1992. Three inmates, one of whom
was Mr. Williams, had dug a tunnel down from a greenhouse located
on prison grounds, some sixteen (16) feet deep and thirty-two (32)
feet long under the wall of the prison to make their escape. After
escaping, Mr. Williams entered the New Martinsville home of the
claimants in the early morning hours of March 6, 1992, and held
them hostage at gunpoint and otherwise terrorized them from
approximately 2:00 a.m. until 1:00 p.m., on the following day when
the claimants were able to make their escape through a window above
ground level. Claimant Barbara Bohrer fractured her left knee in
the drop from the window, which required surgery and resulted in
impaired range of movement and physical activity for Mrs. Bohrer
and ensuing effects upon the claimants' lifestyle. Claimants seek
an award for various economic losses, including medical expenses,
lost wages and home-care services, as well as pain and suffering,
mental anguish, loss of enjoyment of life and loss of consortium.
To assess properly the measure of damages, the Court
finds it necessary briefly to discuss the events giving rise to
this claim. The claimants were married in 1960 and have lived in
their New Martinsville home for 31 years. Mr. Bohrer works at
ORMET, an aluminum company in Hannibal, Ohio. On the night in
question, he was sleeping on the living room floor when he was
awakened by David Edward Williams, an escapee from the West
Virginia Penitentiary in Moundsville, who had broken into their
home and was holding Mr. Bohrer's .41 caliber magnum handgun pointed at his face. Mr. Williams held him at gunpoint for
approximately three hours, while Mrs. Bohrer was asleep in their
bedroom. During this three hour period, Mr. Williams threatened and
harassed Mr. Bohrer. Thereafter, Mr. Williams instructed him to
awaken his wife, and they were ordered to place pillowcases over
their heads. Mr. Williams instructed Mrs. Bohrer to cook him some
breakfast while having the pillowcase over her head and he
continually threatened to kill them both. Thereafter, Mr. Williams
tied Mr. Bohrer's hands and feet and left them in a bedroom with
instructions that they were not to move or attempt to leave the
room under threat of death. He was going to take a nap in their
living room. The claimants made their escape by jumping out of a
window in the bedroom when they did not hear any sounds from Mr.
Williams for many hours. Apparently, Mr. Williams fled from the
Bohrer home in one of their vehicles during that time frame.
The testimony of Mrs. Bohrer reveals the nightmarish
hours they passed as hostages in their own home. Mr. Williams
repeatedly taunted her with threats. She explained that he
appeared to be a mind player. She testified, "He'd come back
through the hall and he'd say, `Barbara, I have a surprise for you.
I have a surprise for you.' And you never knew. . . (Y)ou were
afraid to even think of what his surprise might be." After her
return from the hospital, that she was unable to remain home alone.
"[I] was scared to death, scared to death. I felt his presence in
The evidence revealed that as a result of this incident
Mrs. Bohrer required company around the clock in her home for
approximately eight months thereafter. During the day, her mother
Wanda Musgrave remained with her and during the evenings, her
husband Lane Bohrer was present depending on which shift he worked.
Lane Bohrer regularly turned down overtime work to be with his wife
because she was afraid to remain home alone.
The testimony in this claim establishes that claimant
Barbara Bohrer's lifestyle has changed significantly in that she is
less active and no longer enjoys pastimes such as bowling or golf.
The injuries to her leg which occurred when she jumped out of the
window to escape from her own home have prevented her from taking
part in any of the physical activities which she had previously
enjoyed. The evidence was that the fracture was repaired with a
screw and Steinman pin and staple. Dr. Edgar Barett, Mrs. Bohrer's
treating orthopedic surgeon, testified that residual effects of her
knee injury include post-traumatic arthritis and muscle and
ligament weakness. The claimants submitted a number of medical
bills relating to treatment of Mrs. Bohrer's knee. The Court will
now address the items of damages separately.
The claimants submitted the following bills totaling
$3,496.33 for medical treatment and other costs:
(a) The hospital bill for treatment of Mrs. Bohrer's knee
amounted to $11,256.91. Of this amount, insurance covered all but $152.00 -- the additional cost for Mrs. Bohrer's private room.
(b) A bill of $71.00 for a new brace, dated April 10, 1992.
(c) A bill of $525.33 for a Medtronic electrical stimulator
for Mrs. Bohrer's knee.
(d) A one-time charge of $98.00 for a visit by a psychologist
on March 12, 1992, while Mrs. Bohrer was in the hospital.
(e) Payment of $2,650.00 for a home security system.
The Court finds that all of the aforementioned expenses
were reasonable and necessary as a result the incident giving rise
to this claim. It appearing that these expenses were borne by
claimant Lane Bohrer, the Court makes an award to him in the amount
of $3,496.33 for these various economic damages. The Court finds
that the payment for a hot tub in the amount of $4,234.70, dated
April 13, 1995, some three years after the incident, was not
reasonably related to the claim and will be disallowed.
The claimants also seek an award for lost overtime pay
and for the value of home care services provided gratuitously by
members of Mrs. Bohrer's family. Mr. Bohrer has declined overtime
shifts since March 6, 1992, and he continues to decline these
shifts to the present day at his place of employment in order to be
home with his wife as she is unable to stay in their home alone
after dark. Mr. Bohrer's regular hourly compensation in 1992 was
$13.50 an hour, and his overtime pay would have been approximately
$20.25 per hour. Mr. Bohrer documented 54 missed overtime shifts
in the five months between March and August 1992. He still
regularly declines overtime shifts at least once a week. In
addition, the claimants submitted evidence regarding the present
value of approximately eight months of home care services provided
to Mrs. Bohrer by her mother Wanda Musgrave and other members of
the Bohrer family. William Cobb, an economist at Marshall
University, is of the opinion that the present value of these
services is $24,053.00.
It is the law of West Virginia that claims for damages
cannot be proven by speculation or conjecture and that the
permanency or future effect of an injury must be proven with
reasonable certainty. Jordan vs. Bero, 210 S.E.2d 618 (W.Va. 1974)
It is the opinion of the Court that an award for lost overtime and
gratuitous home care services is not warranted in this case, as
these damages are speculative in nature and their relationship to
this claim has not been established with sufficient certainty. The
Court notes that the West Virginia Supreme Court of Appeals has
previously ruled that an injured person may recover damages for
reasonable and necessary home care services, regardless of whether
such services are rendered gratuitously or for pay. Kretzer vs.
Moses Pontiac Sales, Inc., 201 S.E.2d 275 (W.Va. 1973). While
such an award may in some cases constitute a legal obligation, the
Court is of the opinion that the State has no moral obligation to
make such a award in the present case, as the evidence indicates
that these services were rendered voluntarily with no expectation
of payment and such an award would constitute a windfall to the claimants.
Finally, the Court turns to the matter of pain and
suffering and mental anguish which resulted from this incident.
Clearly there can be few events more traumatic than being tied up
and held at gunpoint in one's own home by a convicted murderer
under constant and repeated threat of being murdered. This event
will be forever seared into the memory of the claimants and will
continue to haunt them during the remainder of their lives.
Accordingly, the Court finds that claimant Barbara Bohrer is
entitled to an award for past and future pain and suffering as
there is the strong probability that the claimant will be required
to undergo replacement knee surgery in the future. The claimant
has also suffered mental anguish and loss of enjoyment of life, for
all of which the Court makes a total award in the amount of
$100,000.00. The Court further finds that the claimant Lane Bohrer
has suffered loss of consortium and loss of enjoyment of life and
is entitled to an award of $22,000.00. Accordingly, the Court
makes awards to the claimants as provided herein below.
Award of $100,000.00 to Barbara S. Bohrer.
Award of $25,496.33 to Lane S. Bohrer.