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Sovereign Immunity

Fairfax Injury Lawyer Brien Roche Addresses 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.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. Employees of the state are immune for negligence.
  • 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 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.

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.

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 Chases

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.

If you have been injured as a result of a high speed police chase, 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.

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Contact Us For A Free Consultation

Sovereign Immunity

Fairfax Injury Lawyer Brien Roche Addresses 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.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. Employees of the state are immune for negligence.
  • 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 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.

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.

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 Chases

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.

If you have been injured as a result of a high speed police chase, 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.

Contact Us For A Free Consultation

Contact Us For A Free Consultation