Sovereign Immunity

Brien Roche

An Overview of Sovereign Immunity

Sovereign immunity is a tough concept in Virginia.

It goes back to the days of the King. The King was immune from suit.  That immunity has continued to the modern day. As a result some entities and employees are exempt from some suits. The theory is that they should focus on their jobs. They should not focus on defending injury lawsuits.

An Outline

Some rules for tort claims are:

Entities

• The state and counties, unless immunity has been waived, are immune.  The counties have not waived immunity. They are immune as to all torts. However the state and its transportation districts have a limited waiver. This is through the state tort claims act. This law has very strict rules as to giving notice to the state about your claim. Likewise strict notice requirements apply to counties, cities and towns.  Va. Code § 15.2-209. When dealing with entities other than the state or counties, the rules get more complex. Those entities may be subject to suit. In some cases it may depend on who formed the entity. A housing authority formed by a county may be immune. A park authority formed by cities and counties may not be immune. It may also depend on the function performed. That function may be proprietary or governmental.

Proprietary

Proprietary means profit making, routine maintenance or routine operation. That is activities focused on the government. In contrast they are immune for governmental functions. Governmental functions are broader. They are more concerned with public safety and health. They involve judgment and/or planning. These criteria apply to towns, cities and authorities. They must be looked at on a case by case basis. In other words that is the only way to figure out if they are immune.

Governmental

Governmental functions include designing, planning or building. Also responding to public emergencies, maintaining traffic signals and operating hospitals and health departments. In addition running police and fire services, operating ambulances, running schools. Also maintaining government buildings, removing trash and inspecting buildings. Proprietary functions are operating tollgates, a water department, an airport, utilities or a public housing authority. Cleaning streets is proprietary. Firefighters pulling down a building five days after the fire is proprietary.

County school boards are immune except where they have waived it up to the limits of vehicle coverage.

Simple negligence in the running of recreational places by cities or towns is an immune activity.

Where the function is a mix of proprietary and governmental then the entity is probably immune.

Employees

• Where an employee claims to be immune the employee has the burden of proving that. Employees can be sued for gross negligence or intentional wrongdoing. Likewise employees who exceed their authority or violate the law are not immune. This may also apply to employees of the state.
• Employees at the high end of the entity are absolutely immune. This applies to the governor, judges and members of the legislative body at the state level. For counties, cities and towns high ranking officers are immune for negligence.
• In looking at employees you must review the case of Messina v Burden 228 Va. 301 (1984). This case says you begin but not end with four factors. First is the nature of the function. Second is the employer’s involvement in the function. Third is the control over the employee. Finally is the amount of judgment.

Discretion vs Ministerial

• Employees who are simply doing their job are immune. For instance, a high level employee of a county, town, city or authority who exercises judgment in regard to an incident is probably immune. The goal is to protect employees whose job is to exercise judgment. Where they do so they are probably immune. However that same employee performing a ministerial function is probably not immune. Ministerial functions are routine. They involve little judgment. However a low level employee whose job is to perform ministerial functions is immune for such. Therefore that same low level employee exercising judgment that is not part of his job is not immune.
• Statutes, rules and guidelines that govern the employee’s conduct must be looked at. These define the limits of conduct. As a result if the employee goes “outside the lines” he may not be immune.
• Furthermore contractors doing governmental functions may be immune in some cases.
• The key test is whether in order to accomplish the public objective, the employee needed to use the type of discretion that warrants this protection.

Call, or contact us for a free consult.

Sovereign Immunity-Distinction Between Ministerial and Discretionary

A decision from the Chesapeake Circuit Court addresses ministerial and discretionary functions.  The case involved a deputy sheriff in an auto crash.

The sheriff argued judgment was at play. He had to consider his own safety. He had to protect the prisoners he was transporting. However there was no evidence that the inmates were a problem.

The conduct of the sheriff in driving was ministerial. He was not immune.

Virginia Tort Claims

Any tort suit against the state of Virginia is governed by the Virginia Tort Claims Act. It allows persons who are injured by the negligent or wrongful conduct of a state employee to sue. However the claim is limited to property damage, personal  injury or death.  In addition the limit on recovery is $100,000 or the limits of insurance. Also the claim is only against the state and not the employee.  The rule dealing with insurance coverage is important.  The Commonwealth or its agencies may be insured.  Historically there have been certain things for which VDOT bought a policy of insurance.  That may be true of other agencies too.  In addition they may be insured through a third party policy.  That is, a contractor may be required to get insurance.  That policy may cover the Commonwealth or the agency,  It is important to do a FOIA request to get this info.

There are a host of exceptions within the statute. As a result a close reading of the statute is needed.

Governmental Employee Immunity

The general rules as to employee immunity is set forth above. If they are within the confines of their primary function they are probably immune. For instance take the individual who installed the water meter at  your home. You thought he was just another repair person. You assumed he was liable for his negligent acts. However he may be immune.  In some parts of Virginia water is supplied by water authorities.  These are entities created by law. Their employees are public employees. Call, or contact us for a free consult.

Governmental versus Proprietary

If these entities are performing what is referred to as a proprietary function, then the authority and its employees are not immune.  Proprietary functions may consist of such things as installing or removing meters from private homes. Terminating service is proprietary. Water authorities and their employees for those types of acts are not immune.

In the City of Alexandria water is supplied by a private water company. That is true in many areas. In Fairfax County  water is supplied by the Water Authority. To the extent this entity is serving a governmental function then it is immune. Its employees may be immune.

In other words it can be a tough question whether the function is governmental or proprietary.

Available Coverage

In any case against a potentially immune person or entity explore the issue of coverage. If suit is pending request the Department of Risk Management plan. Otherwise try a FOIA request. Do not accept what they say the coverage is. Get the plan.

If immunity applies then pursue your uninsured motorist claim in auto cases.

Police Cases

High speed police chases resulting in injury may be the basis for claims against the officer and employer. If the claim is based on a due process violation it is going to be tough to pursue. The standard for recovery is that the conduct of the officers must shock the conscience of the court.  That requires showing the officers acted with the intent of causing harm to the victim.  However some courts have held that the Supreme Court decision on that issue does not apply. Certainly it does not apply where the officers had the chance to reflect on their action.

Furthermore this case does not bar the plaintiff from pursuing state claims against the officer and the employer. These may be based on negligence, gross negligence or recklessness.

In Colby v. Boydon, the Supreme Court said that an officer was immune.  That case involved an actual hot pursuit and therefore required judgment.  In Heider v. Clement, the deputy had finished serving process at a residence and was backing out of the driveway.  That was just ordinary driving, therefore no immunity.  In McBride v. Bennett, officers determined that responding to a domestic disturbance was an emergency and in doing so they exercised their judgment, therefore immune.

School Personnel

See Virginia Code § 8.01-220.1:2 as to immunity of teachers and other school employees. Teachers in general are immune for acts or omissions resulting from the supervision, care or discipline of students when taken in good faith. Acts of gross negligence and willful misconduct do not provide immunity.

In addition school employees may be immune as to the prompt reporting of certain events.

Appeals

Va. Code section 8.01-670.1 now provides for interim appeals for denial of immunity.  What the court however may do is simply to rule that the immunity is for the jury.  In that instance the immunity has not been denied and therefore there is probably no basis for an immediate appeal.

WMATA

The WMATA Compact is codified in Virginia Code § 33.2-3100 and sections 80 and 81 set forth the details. There is no notice requirement. You cannot sue the individual employee. The claim is against the entity. WMATA almost always removes to federal court, therefore there is some logic in starting there.

See Hendricks v. WMATA, 2024 WL 327043 dealing with an immunity defense which was denied by the court.

Roadway Cases

Cases involving roadway or highway injuries may require some careful pleading. If you plead something in the nature of negligent design/construction, you are surely going to be met with a plea in bar alleging immunity.

You’re better off alleging a failure to warn about a known danger, failure to engage in routine maintenance or public nuisance premised upon a failure to warn or maintain. Maddox v. Commonwealth, 267 Va. 657, 663 (2004). Maintenance in general is a proprietary function and therefore no immunity. City of Chesapeake v. Cunningham, 268 Va. 624 (2004)

If you allege both negligent design/construction and negligent maintenance, you’re probably going to lose on the plea in bar. The court will treat the allegations for immunity purposes as entirely governmental.

If you have been injured as a result of police involvement, contact  us.

Also see sovereign immunity for a review of Virginia case law on this topic.

In addition for more information on sovereign immunity see the pages on Wikipedia.