WOODSTOCK — The civil lawsuit claiming the wrongful death of Gina Shoemaker is alive again after the Supreme Court of Virginia sent it back to Shenandoah County Circuit Court for further argument.

The lawsuit is filed against the grandparents of Sean Nicely, who was 37 when he was indicted in April 2015 on a manslaughter charge in the death of the 47-year-old Shoemaker.

The lawsuit claims Nicely got permission from his grandparents, Richard and Anna Funkhouser, to shoot targets on their Mount Jackson property on Charlotte Road West in the direction of Shoemaker’s mother’s property on Nov. 23, 2014.

Shoemaker, who was visiting her mother that day, was killed by a bullet that traveled through trees and the home's walls.

The complaint alleges that the Funkhousers were liable for the death because they were negligent by granting permission for him to shoot a rifle on their property in the direction of the house.

In a demurrer, which challenges the legal grounds over which a lawsuit is filed, the Funkhousers argued that they were protected by immunity provided in a recreational land use statute. The immunity limits the liability of property owners for certain recreational actions committed by third-parties on their land.

The majority opinion of the seven-member state Supreme Court was written by Justice Stephen R. McCullough at the end of March. In it, he states that the Funkhousers were present enough on the property to exercise oversight over the activity. The allegations in the complaint show the Funkhousers had the ability to control Nicely.

The majority opinion adds that recreational land use immunity does not cover a situation in which a landowner grants permission to shoot targets on their property.  

The minority opinion was written by Justice Arthur Kelsey and joined by Chief Justice Donald Lemons and Justice Teresa M. Chafin. Kelsey wrote that the  complaint, among other omissions, does not state that the Funkhousers were outside in Nicely’s presence while he was shooting.

A subsection of the recreational land use statute does provide immunity to a landowner for injuries to third parties caused by recreational users who have permission, express or implied, from the landowner, Kelsey also wrote. The history of the General Assembly’s actions to include more activities into the statute, and inclusion of an “any recreational use,” clause in a subsection, also gave the Funkhousers immunity from the suit.

Attorney Bradley Pollack, representing the Shoemakers, said a jury trial for the lawsuit in which the facts of the incident are argued in deciding the suit is scheduled for June 16, 2022.

Attorney Randy Purdue representing the Funkhousers declined to comment on the case beyond acknowledging the Funkhousers have passed away in their old age, and the suit must be amended to challenge their estate as a result. Pollack saw no issue with that. 

Nicely was originally named as a defendant in the lawsuit, but he was removed from it because of his financial limitations, Pollack said. The Shoemakers were seeking about $868,000 in damages for funeral, punitive and other damages in an amended original complaint.

The criminal charges against Nicely remain dropped after a court of appeals upheld the their dismissal because Nicely's right to have a trial within nine months had been violated. 

At that time, Shenandoah County Commonwealth's Attorney Amanda Wiseley filed a written argument blaming “numerous hearings on the defendant’s motions” for repeated delays that caused the trial to be scheduled beyond the limit. Wiseley also cited problems scheduling key witnesses for the prosecution as another reason the trial was postponed several times.

Contact Charles Paullin at cpaullin@nvdaily.com