Amid concerns from critics — including a top Virginia lawmaker — that prosecutors are not doing enough to take on motorists who injure or even kill pedestrians, a former Charlottesville restaurateur and city political appointee has settled a lawsuit brought against him by a University of Virginia student he struck with his vehicle two years ago.
Charlottesville Circuit Court records show that UVa student Lydia Niguse has settled her $350,000 lawsuit against Kevin Badke, 45, who formerly served on the city’s Board of Architectural Review and who had interests in such popular local eateries as the Fitzroy, Trinity and Coupes.
Ironically, after the lawsuit was settled, Badke returned to court dealing with an accusation bearing some similarity to the Niguse case.
While in the Niguse case he was accused of looking down at something — something his lawyer contested — before impact, in the next case Badke was accused of holding his phone while driving earlier this year.
"He’s a negative seven, sir," arresting officer Jacob Chisom told Albemarle County General District Court Judge Matthew Quatrara during a recent hearing.
The officer was referring to the Department of Motor Vehicles’ system for rating Virginia drivers.
"So he can’t do a class," replied Quatrara, who typically directs first offenders to a driving course.
No first offender, Badke had six moving violations heading into that Jan. 27 hearing. There, Quatrara found him guilty of holding a phone and assessed a $125 fine plus $66 in court costs.
That punishment likely subtracted three more demerit points from Badke’s DMV rating. Moreover, it charged him more money than he initially paid for seriously injuring Niguse.
A witness to the March 27, 2023, incident said that Niguse was knocked unconscious for a minute by the impact when Badke’s Chevrolet Tahoe struck her on a clear spring afternoon. Niguse was dashed to the pavement while walking in a crosswalk near UVa’s then-under construction Contemplative Commons on Emmet Street.
While Badke promptly stopped his nearly 4-ton vehicle, Niguse’s injuries were extensive. The investigating officer found the young woman had suffered vertebral fractures in her lower spine and internal bleeding near her brain, the latter injury capable of creating lifelong complications and disabilities, according to Johns Hopkins Medicine.
The officer charged Badke with two charges, including reckless driving, an offense that requires some evidence about the driver’s state of mind. The officer reported that in the moments before impact, Badke had twice crossed the centerline.
In court, Charlottesville prosecutor Will Tanner dropped a failure-to-yield charge and reduced the reckless charge, so Badke could plead guilty to improper driving. After court, Tanner told The Daily Progress that the presence of a construction barrel in the roadway ameliorated Badke’s responsibility. Badke paid $100 plus $64 in court costs to satisfy the Charlottesville General District Court.
In another recent local case, 19-year-old Louisa resident Matthew Christian Kozub paid $94 to the Charlottesville General District Court to satisfy a failure-to-yield traffic ticket, the most severe charge he faced after killing 64-year-old mother and grandmother Mamawa Simai.
One man who tried to strengthen penalties for motorists convicted of striking pedestrians is Virginia Senate Majority Leader Scott Surovell, D-Fairfax. In 2020, Surovell pushed a bill through the General Assembly that allowed prosecutors to charge those who seriously or fatally strike pedestrians and cyclists with a Class 1 misdemeanor. The charge carries the same penalty as reckless driving: up to a year in jail. The difference is that it doesn’t require as much state-of-mind evidence, only a showing of carelessness or distractedness.
To Surovell’s chagrin, since his law was enacted, prosecutors have brought just 32 charges on his so-called vulnerable road users law. That’s in a state where pedestrian and cyclist casualties regularly top 2,000 every year.
"No one is using it," Surovell told The Daily Progress.
Surovell said he crafted the law to provide a way to get around the insistence of judges in determining mens rea, or the intention or knowledge of wrongdoing. Surovell said that in collisions between cars and people, there’s not only an imbalance in physics but also in available information.
"Usually the defendant is mute or says, ‘I didn’t see them,’ and the victim is concussed or dead," Surovell said.
He said that a 1970 Virginia Supreme Court ruling made getting reckless driving convictions too difficult. The ruling in Powers v. Commonwealth dismissed a reckless driving conviction based on circumstantial evidence, despite the driver having wrapped his car around a tree so violently that both he and the engine were dislodged.
"My law requires no mens rea," said Surovell. "It requires that you be careless or distracted. It’s basically a negligence standard."
Badke was not charged under Surovell’s law, and a data compilation by the Virginia Criminal Sentencing Commission cross-checked with local records shows that Surovell’s law has been never been pressed in the city of Charlottesville and only once in surrounding Albemarle County.
"I sometimes call commonwealth’s attorneys and say, ‘Why didn’t you charge that?’ and they say, ‘What are you talking about?’" said Surovell.
Charlottesville Commonwealth’s Attorney Joe Platania was asked why his office has never used that law.
"We review the evidence in each criminal prosecution to determine if there is proof beyond a reasonable doubt of reckless, careless, or distracted driving," Platania said in a statement. "Sometimes, even when there may be proof of those elements, in consultation with victims and understanding that civil litigation will follow, an agreement is reached to allow the defendant to plead to criminal improper driving, thereby establishing negligence."
Surovell contended that some court official aren’t accustomed to ratcheting up the blame in wrecks.
"It’s a difficult paradigm shift for a lot of law enforcement officers, prosecutors and judges," said Surovell, "because we have traditionally demanded a higher level of accountability before we find someone criminally liable in a traffic situation."
Surovell calls his law a "catchall," as it doesn’t require the pedestrian or cyclist to be on a public road. They could be on private property, such as a parking lot.
The one time Surovell’s law was employed by a Central Virginia prosecutor was the case against Warren Thurston, the driver in a fatal incident on Rio Road in Albemarle County. Thurston conceded that he was listening to — but insisted that he was not watching — a video in his car when he struck and killed a man in a crosswalk named Scott Rooth on June 19, 2022.
The prosecutor in that case ultimately decided that he couldn’t show that Thurston, who voluntarily provided the information about the video and who reported having a mental disorder, did anything wrong, particularly since the victim might have been crossing against a stop light. The prosecutor withdrew the charge.
"It would be unjust to pursue this case against Mr. Thurston with the evidence we have at this time," Ray Szwabowski, the prosecutor, said when he moved to drop the charge last year.
Data from the DMV shows that 63 pedestrians and bicyclists were injured and three killed by motor vehicles in Charlottesville and Albemarle County in 2024.
"Many people see no harm in texting, sorting through their playlist or adjusting their navigation while driving," according to the DMV. "But there are serious dangers hidden in those seconds of your eyes being off the road. You could easily miss a pedestrian stepping out to cross the road, and those seconds could be the difference between life and death."
Niguse’s civil lawsuit against Badke was dismissed on a motion from the plaintiff after a settlement. How much Badke or his insurer paid Niguse is subject, however, to a confidentiality agreement, according to her lawyer.
"Not as much as she deserved," the lawyer, Richard Armstrong, told The Daily Progress.
Badke, who represented himself in the civil suit, according to court records, did not immediately respond to a Daily Progress interview request.
As reported last week, a new law takes effect July 1 that continues the push for punishment that Surovell started. Like Surovell’s vulnerable road users law, the new law criminalizes death and serious injury to bikers and walkers, but it goes a step further by removing any need for a prosecutor to determine what might have been in the mind of such a driver.
"That’s the way it should be," Charlottesville pedestrian advocate Kevin Cox told The Daily Progress. "There’s no excuse for running someone down."
Source: www.dailyprogress.com