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Immunity Cases Summarized By Personal Injury Lawyer

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Immunity and the related topic of personal injury. For more information on immunity matters see the pages on Wikipedia.

Immunity-Cases and Statutes

[1]

Charitable

See Va. Code § 8.01 for a variety of statutes establishing immunity.

2014 Byrd Theatre Foundation v. Barnett, 287 Va. 291, 754 S.E.2d 299.

A member of this foundation was injured while attempting to repair pipe organ. Plea of charitable immunity was properly denied since Barnett was not a beneficiary of the foundation’s mission at the time he was injured.

2008 UVA Health Services Foundation v. Morris, 275 Va. 319, 657 S.E.2d 512.

Health Services Foundation associated with university’s medical center is not itself a hospital and is not otherwise entitled to common law immunity. The doctrine of charitable immunity in Virginia is limited. A charitable institution is immune from liability to beneficiaries for acts of ordinary negligence but may be liable for ordinary negligence in the selection and retention of its employees. To establish charitable immunity the institution must show that its articles of incorporation have a charitable purpose and that the organization is in fact operated consistent with that purpose. The Court in this case considered 10 different issues to determine whether it operates with a charitable purpose.

2005 Ola v. YMCA of S. Hampton Rds., Inc., 270 Va. 550, 621 S.E.2d 70.

Minor plaintiff was abducted and sexually assaulted in a bathroom while using the YMCA facility, which is a membership based organization. Trial court properly concluded that defendant was a charitable organization operating in accordance with a charitable purpose and that the minor plaintiff was a beneficiary.

2004 Cowan v. Hospice Support Care, Inc., 268 Va. 482, 603 S.E.2d 916.

Wrongful death action asserted on behalf of decedent who had been patient at hospice alleging improper care. Claims were for negligence, gross negligence, and willful and wanton misconduct. Charity is immune from liability to its beneficiaries for negligence caused by acts or omissions of its agents provided the charity has exercised due care in their selection and retention. This immunity does not extend to claims made by persons who have no beneficial relationship but are mere invitees or strangers. Court defines again the distinction between negligence, gross negligence, and willful and wanton conduct and concludes that immunity only applies to claims for simple negligence.

2001 Bhatia v. Mehak, Inc., 262 Va. 544, 551 S.E.2d 358.

Minors were scalded by hot tea that was spilled on them during religious ceremony that was being catered. In this instance, owners of catering business are acting directly for the business in preparing and delivering charitable donations to religious organization. Charitable immunity precludes charity’s beneficiaries from recovering damages from the charity for negligent acts of its servants or agents if due care was exercised in the hiring and retention of those servants. In this case, neither catering business nor owner were acting as agents or servants of religious organization by preparing and serving food and beverages without compensation nor were the business or owners directly performing charitable work and as such, charitable immunity is not applicable.

1999 Mooring ex rel. Mooring v. Virginia Wesleyan Coll., 257 Va. 509, 514 S.E.2d 619.

Mooring at time of injury was beneficiary of charitable effort offered by Boys and Girls Club where he was injured. Braley was professor of Virginia Wesleyan College who was supervising certain students offering recreational programs to beneficiaries such as Mooring. Braley was on the premises supervising one of his students. Although club is entitled to immunity, Braley is not entitled to immunity at the time of this injury because he was not engaged in work of charity at the time of his alleged negligence. His negligence consisted of improperly tending to door where Mooring was injured. In this case, charitable immunity does not apply to Braley.

1998 Bailey v. Lancaster Ruritan Recreation Ctr., 256 Va. 221, 504 S.E.2d 621.

Defendant bears burden of proof as to charitable immunity defense. Charitable institution is immune from liability to its beneficiaries for negligence arising from acts of its servants and agents if due care has been exercised in their selection and retention. To determine whether an organization is charitable court must examine powers and purposes set forth in its charter and manner in which business is conducted. Defendant operated recreation center not for profit. Court concluded that overriding purpose of defendant is to own and operate private recreation center for exclusive use of its members and guests. Defendant does not extend its benefits to indefinite number of persons. Corporate charter does not state “not for profit objective” and indeed on occasion the defendant has shown a profit. Defendant failed to meet its burden of proof as to charitable immunity.

1995 Moore v. Warren, 250 Va. 421, 463 S.E.2d 459.

Volunteer of charity is immune from liability to charity’s beneficiaries for negligence while volunteer was engaged in charity’s work.

1992 Straley v. Urbanna Chamber of Commerce, 243 Va. 32, 413 S.E.2d 47.

Plaintiff injured during course of town festival sponsored by chamber of commerce. Plaintiff not beneficiary of this charitable organization since she was not resident of town and received no pecuniary benefit from funds generated by festival.

1990 Thrasher v. Winand, 239 Va. 338, 389 S.E.2d 699.

Charitable institutions are immune from liability based on claims of negligence asserted by those who accept their charitable benefits. The beneficiaries in this case were those to whom defendant donated its funds. Plaintiff was not a member of that class and therefore defendant not immune.

1989 Infant C. v. Boy Scouts of Am., 239 Va. 572, 391 S.E.2d 322.

Charitable organization is liable to beneficiaries of charity for negligence of its employees if it fails to exercise ordinary care in selection and retention of employees.

1977 Purcell v. Mary Washington Hosp., 217 Va. 776, 232 S.E.2d 902.

Hospital charter lacked any limitations of charitable character. Prices set at certain amount above “break-even” point operated at profit or gain for 20 of 21 years; pursues aggressive and vigorous effort to collect for its services. Error to sustain plea of charitable immunity.

1969 Whitfield v. Whittaker Mem. Hosp., 210 Va. 176, 169 S.E.2d 563.

Court should not have taken judicial notice of defendant hospital being charitable institution.

1963 Roanoke Hosp. Ass’n v. Hayes, 204 Va. 703, 133 S.E.2d 559.

Charitable institution is immune from liability to patients for negligence of its agents if due care has been exercised in their selection and retention. Where plaintiff is not patient but is invitee or stranger having no beneficial relation to charitable institution, recovery for tort may be had if negligence is proved. Plaintiff in this instance was private nurse and therefore was invitee.

1963 Hill v. Memorial Hosp., 204 Va. 501, 132 S.E.2d 411.

Only duty that charitable hospital owes to its patients is exercise of due care in selection and retention of its servants. Charitable hospitals are immune from liability for acts of corporate negligence as well as for negligence of subordinate employees. Discusses reasons for not abolishing charitable immunity.

1959 Memorial Hosp. v. Oakes, 200 Va. 878, 108 S.E.2d 388.

Institution established for charitable purpose, which operates on non-profit basis and whose officers and directors receive no compensation is as matter of law charitable institution. Charitable institution is liable to beneficiaries of charity for negligence of its employees, if it fails to exercise ordinary care in selection and retention of its employees. Abrogation of charitable immunity by judicial decision would be retroactive and give life to tort claims not barred by statute of limitations.

1947 Danville Community Hosp. v. Thompson, 186 Va. 746, 43 S.E.2d 882.

Test of whether hospital is charitable institution is its purpose, i.e., whether it is maintained for profit.

[2]

Intra-Family

See Va. Code § 8.01-220.1 abolishing common-law defense of interspousal immunity in tort.

1997 Pavlick v. Pavlick, 254 Va. 176, 491 S.E.2d 602.

Intra-family immunity is still recognized in Virginia to extent it bars recovery by unemancipated child against parent for negligence in non-automobile or nonbusiness related situation and to intentional, willful, or malicious torts. Parent immune as to intentional tort against unemancipated child. This latter exception, however, does not apply in instances of death of child. Where child is killed as a result of intentional act of parent, then immunity does not apply.

1980 Counts v. Counts, 221 Va. 151, 266 S.E.2d 895.

Wife immune as to intentional torts committed during marriage.

1979 McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662.

Interspousal tort immunity recognized in Tennessee. Law of place of wrong, Tennessee, applied.

1976 Lyles v. Jackson, 216 Va. 797, 223 S.E.2d 873.

Stepfather who stood in loco parentis is immune from suit by stepchildren.

1975 Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195.

Interspousal immunity rule abrogated for wrongful death action when based on wrongful act by one spouse resulting in death of other spouse when deceased spouse is survived by no living child or grandchild.

1973 Fountain v. Fountain, 214 Va. 347, 200 S.E.2d 513.

Rule abrogating interspousal immunity given only prospective effect.

1972 Wright v. Wright, 213 Va. 177, 191 S.E.2d 223.

Exceptions to parental immunity doctrine: (1) emancipated child may sue parent in tort; (2) an unemancipated child may sue parent if master-servant relationship exists; and (3) unemancipated child may sue father’s master for injury resulting from father-servant’s negligence. Very high incidence of liability insurance covering Virginia-based motor vehicles, together with mandatory uninsured motorist endorsements to insurance policies, has made our rule of parental immunity anachronistic when applied to automobile accident litigation. (Quoting 212 Va. 181, 183 S.E.2d 190).

1971 Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200.

Rule of interspousal immunity abrogated as to personal injuries arising from motor vehicle accident.

1971 Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190.

Intra-family immunity rule applies only to personal injury and not property damage claims. In this case, court abrogated bar on actions by child against parent to recover for injuries sustained in motor vehicle accident.

1960 Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875.

Husband and wife or parent and unemancipated child are not permitted to sue each other for personal injuries in this state. One spouse can sue other for property damage. Infant can sue parent where injuries were occasioned in performance of duties as common carrier. Unemancipated infant may sue his unemancipated brother in tort-auto accident.

1955 Vigilant Ins. Co. v. Bennett, 197 Va. 216, 89 S.E.2d 69.

Common-law rule that one spouse could not sue other for tortious damage to property was abrogated by statute. Immunity still exists as to personal claims.

1953 Brumfield v. Brumfield, 194 Va. 577, 74 S.E.2d 170.

It is well settled that emancipated infant may maintain tort action against parent. Emancipation is something that must be proven and it must be proven to be complete.

1952 Furey v. Furey, 193 Va. 727, 71 S.E.2d 191.

Wife cannot sue her husband for assault committed by him on her during the coverture. Va. Code § 55-36 does not change this common-law rule.

[3]

Ministerial/Discretionary Acts

1973 Bellamy v. Gates & Gill, 214 Va. 314, 200 S.E.2d 533.

Ministerial act is one performed in obedience to mandate of legal authority without regard to or exercise of judgment upon propriety of act being done.

1945 Dovel v. Bertram, 184 Va. 19, 34 S.E.2d 369.

Ministerial act is one that person performs in given state of facts and prescribed manner in obedience to mandate of legal authority without regard to, or exercise of, his own judgment upon propriety of act being done.

[4]

Miscellaneous

See Va. Const. art. IV, § 9 as to immunity of legislators.

See Va. Code § 27-85.5 (Arson Reporting Immunity Act) as to immunity of insurance company or authorized agent for reporting fires of non-accidental nature unless such reporting is done with actual malice.

See Va. Code § 32.1-38 indicating that physicians or other persons required to report certain diseases shall be immune from civil liability unless it is shown that they acted with malice.

See Va. Code § 42.1-73.1 as to library employee’s exemption from liability for arrest of person suspected of removing book from library.

See Va. Code § 44-146.23 as to immunity from liability in any disaster services activities.

See Va. Code § 44-148 as to nonliability for damages relating to authorized air raid.

See Va. Code § 54.1-2967 indicating that any person who reports certain physical wounds to police shall be immune from civil liability.

2003 Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780.

Prosecutor was civilly sued for malicious prosecution and conspiracy claims. In each case where prosecutor is involved in the charging process, that action is connected with the prosecutor’s role in judicial proceedings and the prosecutor is entitled to absolute immunity from suit for such actions.

1986 Harlow v. Clatterbuck, 230 Va. 490, 339 S.E.2d 181.

Judges are immune from civil liability except when they act in clear absence of all jurisdiction. Quasi-judicial immunity may extend to other public officials if: (1) performing judicial functions, (2) acting within their jurisdiction, (3) acting in good faith. In this case juvenile had been committed to Department of Corrections for indeterminate time to be released at its discretion. Decision to release was judicial function. Department employees acted within their jurisdiction and in good faith in releasing the juvenile.

[5]

Sovereign

See Va. Code § 8.01-224 stating that governmental immunity not available as defense in blasting case.

See Va. Code § 27-1 indicating that firefighters sent beyond their territorial limits in emergency shall, along with jurisdiction employing them, enjoy same immunity as if they were acting within their territorial limits.

See Underground Utility Damage Prevention Act, Va. Code § 56-265.28, indicating act does not abolish sovereign immunity.

[a]

City and Town

See Va. Code § 15-2-1809 indicating that cities, towns and counties are liable only for gross negligence in maintenance or operation of certain recreational facilities. This section is not intended to limit immunity enjoyed by counties.

2005 City of Lynchburg v. Brown, 270 Va. 166, 613 S.E.2d 407.

Va. Code § 15-2-1809 creates immunity from liability for ordinary negligence when a city is sued for personal injury damages resulting from the maintenance of a park or recreational facility. In this slip and fall case, plaintiff alleged injury on a bleacher at a city maintained athletic park. Although there was evidence of ordinary negligence in that city, employees were at least on constructive notice of the defect, that negligence does not rise to the level of being gross negligence, and therefore, the claim should have been stricken. In this case, there was no evidence of deliberate conduct by city employee and no evidence of total disregard of all precautions by them. If there had been evidence of such, then there may be a jury issue as to gross negligence.

2004 City of Chesapeake v. Cunningham, 268 Va. 624, 604 S.E.2d 420.

Plaintiff alleged injuries against city relating to contaminated municipal drinking water. Planning and design decisions regarding the upgrading of a water treatment plant and dissemination of information to the public regarding temporary health hazards associated with consuming municipal drinking water during the upgrade process were governmental functions and therefore, the city is immune. Governmental functions are powers and duties performed exclusively for the public welfare. Proprietary functions are performed primarily for the benefit of the municipality. If the function is a ministerial act and involves no discretion, it is proprietary. When a municipality plans, designs, regulates, or provides a service for the common good, it performs a governmental function. Routine maintenance or operation of a municipal service is proprietary. The alleged misconduct here on the part of the city is the change in the design of its water treatment system. That is a governmental function.

2004 Gambrell v. City of Norfolk, 267 Va. 353, 593 S.E.2d 246.

Slip and fall action on municipal parking lot was barred by sovereign immunity since the action related to governmental functions after a major snow storm. Snow removal operations after a snow storm are deemed to be a governmental function. Municipal corporations exercise two types of functions, governmental and proprietary. A function is governmental if it directly relates to the general health, safety, and welfare. It is proprietary if it involves a privilege and power performed primarily for the benefit of the municipality. Routine maintenance of streets and parking lots would be a proprietary function. In this instance, emergency snow removal operations which apply to this parking lot are governmental. A municipality is liable in the same manner as an individual for injuries resulting from negligence in the performance of proprietary functions. In this case, the plaintiff was an employee of Bank of America who had rented the parking lot from the city. The charging of such fees did not change the function at issue from being a governmental function, i.e., the emergency removal of snow or failure to do so.

2003 Harrell v. City of Norfolk, 265 Va. 500, 578 S.E.2d 756.

Plaintiff slipped and fell while walking on the surface of white material used to mark a pedestrian crosswalk and filed suit alleging failure to safely maintain that portion of the crosswalk and failing to warn of the unsafe conditions. In this case, although the malfunctioning of a traffic signal bears some relationship to street maintenance and therefore has some characteristics of a proprietary function, a system of signals is designed to regulate traffic and its dominant purpose is to protect life, i.e., protect the general public which is the distinguishing feature of a governmental function. Municipal corporations are immune as to governmental functions.

2002 Niese v. City of Alexandria, 264 Va. 230, 564 S.E.2d 127.

Plaintiff alleged that city police officer raped her several times while on duty and within the scope of his employment. City is immune from liability for negligence associated with the performance of governmental functions but can be held liable for negligence associated with the performance of proprietary function. The maintenance of a police force is a governmental function and as such, the city is immune from liability for a police officer’s negligence in the performance of his duties as a police officer. City is likewise immune for the intentional torts of its employees.

2001 Lostrangio v. Laingford, 261 Va. 495, 544 S.E.2d 357.

Suit alleged personal injury suffered at celebration jointly sponsored by defendants on land not owned by town. Court held that celebration was not “recreational facility” within the meaning of statute immunizing towns from liability for personal injury arising from ordinary negligence in maintenance or operation of recreational facility. The celebration in this case was an event rather than something tangible with purpose of diverting and entertaining public.

2000 Decker v. Harlan, 260 Va. 66, 531 S.E.2d 309.

City of Hampton that operates the Hampton Coliseum and its employee, a building mechanic assigned to work in that facility, are immune from suit under Va. Code § 15-2-1809. Employee in this case was driving truck loaded with trash on its way from recreational facilities to steam plant miles from facility for incineration. Automobile accident occurs while en route. Both defendants are immune from suit.

2000 City of Va. Beach v. Carmichael Dev. Co., 259 Va. 493, 527 S.E.2d 778.

Trial court incorrectly entered judgment against city for alleged tortious interference with land sales contract where there was overwhelming governmental function involved on part of city to benefit welfare and safety of public and therefore, city’s actions were shielded by sovereign immunity. Governmental functions are powers and duties to be performed exclusively for public welfare. Proprietary functions are privileges and powers performed primarily for benefit of municipality and therefore do not enjoy sovereign immunity. Routine maintenance of city streets is proprietary whereas regulation of traffic or similar activity intended to protect general public safety is governmental function. Where governmental and proprietary functions coincide, governmental function is overriding factor and therefore sovereign immunity will apply. The city in this case denied curb cut to potential purchaser of real estate and thereafter offered to purchase property from owner. City’s policy of acquiring by contract and then reselling or leasing troublesome parcels has proprietary aspect but also has governmental function and therefore, city is immune.

1999 Breeding v. Hensley, 258 Va. 207, 519 S.E.2d 369.

Suit filed on behalf of infant, plaintiff alleged that town and its employees were negligent and created nuisance while collecting garbage by allowing dumpster to be placed so as to obstruct public street. Plaintiff while riding down street struck dumpster. The negligence count was dismissed on grounds of municipal immunity since function involved was governmental function. In regards to nuisance count, any unauthorized obstruction that unnecessarily impedes lawful use of public street is public nuisance at common law. Any unauthorized use of public highway that is extensive and continues long enough to be unreasonable may amount to public nuisance. This claim was sufficient to withstand demurrer. Notice requirement under Va. Code § 8.01-222 is applicable to nuisance claims since town is liable for maintaining public nuisance only if plaintiffs can establish that town employees were negligent. The notice requirement only applies to the town not the employees. Since proper notice was not given to town, the action against the town is dismissed but nuisance claim against employees will stand.

1997 Hawthorn v. City of Richmond, 253 Va. 283, 484 S.E.2d 603.

Va. Code § 15.1-291 created immunity for city so far as recreational facilities are concerned barring both negligence and nuisance claims. In this instance, plaintiff alleged negligent failure to provide a guardrail or warning on path in public park.

1996 Chapman v. City of Virginia Beach, 252 Va. 18, 475 S.E.2d 798.

Wrongful death action against city. Question was whether boardwalk was recreational area. Court concluded that it was recreational area even though it was also a means of transportation. As such, gross negligence standard applies to this action.

1993 Woods v. Town of Marion, 245 Va. 44, 425 S.E.2d 487.

Auto accident allegedly occurred because of ice on town street that had formed from water leak from town water pipes. Town is charged with negligence in operating waterworks and in failing to maintain streets, both of which are proprietary functions and therefore no immunity.

1991 Bialk v. City of Hampton, 242 Va. 56, 405 S.E.2d 619.

City is entitled to sovereign immunity while clearing snow from its streets during alleged emergency situation that resulted from winter storm. While routine maintenance of existing streets has been held to be proprietary function, in this case snow removal operations were done for common good in coping with emergency and as such they constituted governmental function.

1990 Taylor v. City of Charlottesville, 240 Va. 367, 397 S.E.2d 832.

City alleged to have been negligent in failing to use reasonable care to install lights, barricade, and other safety devices at end of dead end street that was near a steep precipice. City is immune because of alleged negligence concerning traffic regulations, which is what was alleged here. City is also immune as to alleged negligence claim dealing with exercise of its discretion in designing and constructing street. City is not immune in regard to nuisance count that was properly set forth.

1989 Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747.

City sued for malpractice in providing emergency medical services. This is governmental function; therefore, City is immune. Fact that these services may be provided by private entities does not render them proprietary. Fact that fees are charged does not render them proprietary. Fact is that City is exercising its police power.

1988 Miles v. City of Richmond, 236 Va. 341, 373 S.E.2d 715.

Notice requirement to City is satisfied where plaintiff reported accident and City employee prepares report as to details of accident.

1987 Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688.

Auditorium rented for profit by city was found to be recreational facility under Va. Code § 15-1-291.

1980 Freeman v. City of Norfolk, 221 Va. 57, 266 S.E.2d 885.

City performing governmental function is immune. Decision to install traffic control devices is governmental function.

1979 Transportation, Inc. v. Falls Church, 219 Va. 1004, 254 S.E.2d 62.

Although repair of malfunctioning traffic signal bears characteristic of proprietary function, dominant purpose is protecting general public’s health and safety. Where governmental and proprietary functions coincide, governmental function is overriding factor and municipality enjoys sovereign immunity.

1976 VEPCO v. Hampton Redev. & Hous. Auth., 217 Va. 30, 225 S.E.2d 364.

Municipality is not entitled to same immunity from tort liability that is enjoyed by Commonwealth. In failing to perform or in negligently performing governmental functions, municipality is immune from tort liability. With respect to proprietary functions, it is not so immune. Housing authority occupies status of municipal corporation.

1976 Newport News v. Hertzler, 216 Va. 587, 221 S.E.2d 146.

Municipal corporation has no immunity from creating or maintaining nuisance where act complained of is not authorized by law. To constitute actionable nuisance, municipality must be guilty of negligence in operation of facility.

1973 Taylor v. Newport News, 214 Va. 9, 197 S.E.2d 209.

Municipality is immune for negligence in regards to governmental functions and not immune with respect to proprietary functions. Collection of garbage is governmental function, but maintenance of streets and sidewalks is proprietary function. Here, pile of grease was dropped on sidewalk during garbage collection and allowed to remain for 14 hours. Held: city immune.

1964 City of Richmond v. Grizzard, 205 Va. 298, 136 S.E.2d 827.

Church granted use of government building. Plaintiff injured in building while on way to Sunday school class. No governmental function on part of city.

1962 Fenon v. City of Norfolk, 203 Va. 551, 125 S.E.2d 808.

During hurricane, city crews endeavored to cut fallen trees. Part of tree left extending into street. Plaintiff’s vehicle struck tree. City performing governmental function of providing emergency service; therefore, immune. Care of streets alone would be proprietary function.

1952 Howlett v. City of South Norfolk, 193 Va. 564, 69 S.E.2d 346.

City, in adopting plan for improvement of its streets or other public works, acts in governmental capacity but in construction and maintenance of such improvements, it acts in ministerial or proprietary capacity and is liable for damages caused by its negligence. Moreover, it is no defense to suit on this basis that abutting property owners agreed to pay part of cost of improvements to street.

1949 Masters v. Hart, 189 Va. 969, 55 S.E.2d 205.

Municipal corporation is charged with both governmental and proprietary duties. It is not liable for negligence of its officers, servants, or agents when through them it is performing purely governmental function. It is only where municipality acts in private, proprietary, or ministerial capacity that it is liable in tort action.

[b]

Commonwealth

See Va. Code § 2.1-223.1 as to how claims against Commonwealth are to be presented.

See Va. Code § 8.01-195.1 essentially abrogating immunity of state.

See Va. Code § 8.01-192 as to right to file suit against Commonwealth after claim denied administratively.

See Va. Code § 10-1-1008 indicating that immunity of sovereign is intact as to injuries occurring in caves owned by state.

2016 Clark v. Virginia Department of State Police, 292 Va. 725, 793 S.E.2d 1.
Virginia Department of State Police enjoys sovereign immunity as to a claim asserted under a federal statute, in this case the Uniformed Services Employment and Reemployment Rights Act. The Commonwealth had not waived immunity.

2016 Phelan v. Commonwealth, 291 Va. 192, 781 S.E.2d 567.

Claim against the Commonwealth failed for failure to properly identify the agency responsible.

2007 Torloni v. Commonwealth, 274 Va. 261, 645 S.E.2d 487.

Plaintiff filed claim against Commonwealth along with other motorist. Claim against other motorist was settled for $100,000. Trial court improperly reduced the amount claimed against the Commonwealth to $100,000 and then applied Va. Code § 8.01-35.1 to dismiss the claim against the Commonwealth on the grounds that the Commonwealth was entitled to a dollar for dollar credit for the plaintiff’s settlement with the other party. That was error. Trial court should not have reduced the ad damnum against the Commonwealth; rather, it should have allowed the case to go to verdict and then the $100,000 settlement would have been credited against that verdict and if the amount left standing was still over $100,000 then the plaintiff would have been entitled to recover only that statutory cap against the Commonwealth.

2007 Afzall v. Commonwealth, 273 Va. 226, 639 S.E.2d 279.

In this declaratory judgment action to determine the amount of attorney fees to be deducted from Medicaid lien in prior personal injury action, Supreme Court concluded that the Commonwealth has not waived its sovereign immunity as to declaratory judgment action and therefore the case was dismissed.

2007 Commonwealth v. Burns, 273 Va. 14, 639 S.E.2d 276.

In this wrongful death action asserted against the Commonwealth and VDOT employee, it was alleged that they left a two-inch depression in the driving surface that was approximately three feet wide and 108 feet long in the left portion of the right lane. Plaintiff on a motorcycle hit that area and lost control. The public duty doctrine does not bar a claim of negligence or gross negligence against a public employee where there is no public duty owed by the public official to the citizenry at large. In this instance, the duty was owed to an individual, i.e. the motorist in this case and therefore the public duty doctrine is not applicable.

2006 Ogunde v. Commonwealth, 271 Va. 639, 628 S.E.2d 370.

Inmate at correctional facility sued Commonwealth under the Virginia Tort Claims Act. The controlling statute of limitations is the one found in the Tort Claims Act and not the statute found at Va. Code § 8.01-243.2, which is the statute of limitations applicable to persons confined in the state correctional facilities.

2004 Bates v. Commonwealth, 267 Va. 387, 593 S.E.2d 250.

The place of injury requirement in the notice of claim against the Commonwealth under the Virginia Tort Claims Act was sufficient where it identified the University of Virginia Health Sciences Center in Charlottesville, Virginia, as being the place of injury.

2004 Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 591 S.E.2d 76.

The Virginia Tort Claims Act leaves intact the sovereign immunity of the Commonwealth’s agencies of which the University of Virginia is one and therefore, it is immune in tort.

2004 Billups v. Carter, 268 Va. 701, 604 S.E.2d 414.

Action brought by prisoner against correctional facility for abuse that occurred during confinement. Plaintiff asserted claims for assault and battery and § 1983 claim. Under the Virginia Tort Claims Act, plaintiff is required to prove mailing and receipt of notice of claim in cases where its filing is contested. In this case, the defendant made no contention that the plaintiff had in fact failed to give notice. It was not necessary to attach any documentation establishing notice to the pleadings since that issue was not raised by the defendant. The plaintiff did exhaust her administrative remedy as a state prisoner and as such, there was no failure to exhaust such.

2001 Melanson v. Commonwealth, 261 Va. 178, 539 S.E.2d 433.

Plaintiff filed suit against Commonwealth in connection with injuries suffered as a result of fallen traffic sign allegedly owned and maintained by VDOT. Trial court properly dismissed action on plea of sovereign immunity on grounds that plaintiff failed to satisfy notice requirement since mailing notice of claim by certified mail, return receipt requested, is exclusive method of filing notice of claim against Commonwealth under Virginia Tort Claims Act. In this case, plaintiff had notice hand delivered within time allowed. That was not sufficient.

2001 Patten v. Commonwealth of Virginia, 262 Va. 654, 553 S.E.2d 517.

Wrongful death action brought by administrator of estate of decedent who died in state mental hospital where hospital was acting under court order of commitment. Commonwealth is deemed to be immune since it was acting under court order.

2000 Whitley v. Commonwealth, 260 Va. 482, 538 S.E.2d 296.

In this wrongful death action brought by administrator of the estate of deceased prisoner, Commonwealth claims it was immune from claims of simple negligence. Supreme court held that Tort Claim Act did apply and that Commonwealth was not immune. Commonwealth attempted to rely upon certain exceptions under Act which simply did not apply.

2000 Commonwealth v. Luzik, 259 Va. 198, 524 S.E.2d 871.

Commonwealth did not waive right to assert sovereign immunity to suit by state employees in state court for back overtime wages and thus has not consented to be sued in its own courts for alleged violation of Fair Labor Standards Act.

1996 Halberstam v. Commonwealth, 251 Va. 248, 467 S.E.2d 783.

Plaintiff fell on parking lot at George Mason University. Notice requirement under Tort Claims Act requires that notice state time and place at which injury occurred and agency allegedly liable. In this instance, plaintiff only identified location of accident as school parking lot of GMU. GMU has several campuses and several parking lots. Notice inadequate.

1994 Baumgardner v. Southwestern Va. Mental Health Inst., 247 Va. 486, 442 S.E.2d 400.

Decedent admitted to Southwestern as patient pursuant to civil mental temporary detention order issued by General District Court. Order directed detention and evaluation or treatment. This entity is agency of Commonwealth and Commonwealth is immune unless that immunity has been expressly waived. Immunity however has not been waived as to any claim based upon act or omission in the execution of lawful order of any court. That applied here and as such immunity bars this claim.

1989 Commonwealth v. Coolidge, 237 Va. 621, 379 S.E.2d 338.

Action against Commonwealth for slip-and-fall accident on sidewalk. Appropriate standard is that applicable to municipality. Plaintiff must show actual or constructive notice of alleged defect.

1983 Bowers v. Commonwealth, 225 Va. 245, 302 S.E.2d 511.

Suit against department of highways and resident engineer due to collapse of bridge. Both engineer and highway department were found to be immune. Plaintiff argued that construction of bridge on private property was outside scope of authority of resident engineer and, as such, he was not immune. Court rejected that argument. Court looked at several factors in determining immunity of employee: function of employee, extent of state’s interest and involvement in that function, whether act involves use of judgment and discretion, and degree of control and direction exercised by state over employee.

1965 Green & Co. v. Thomas, 205 Va. 903, 140 S.E.2d 635.

Blasting case. Contractor acting on behalf of state in making public improvement not liable unless he acts negligently.

1964 Kene Corp. v. Harris, 205 Va. 619, 139 S.E.2d 61.

State immune from property damage claim.

1954 Eriksen v. Anderson, 195 Va. 655, 79 S.E.2d 597.

Commonwealth is immune from liability for tortious acts of its servants, agents, and employees in absence of express constitutional or statutory provision making it liable. Commonwealth’s agents operating stone quarry.

1944 Hicks v. Anderson, 182 Va. 195, 28 S.E.2d 629.

Landowner is not allowed to maintain action at law in any court against state for damages to his land resulting from negligent and tortious acts of highway department in construction of highways.

1942 Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9.

In absence of statute authorizing suit against state, tort actions may not be maintained against state. This property damage claim was properly barred blasting on state property.

[c]

Counties

2012 Seabolt v. County of Albemarle, 283 Va. 717, 724 S.E.2d 715.

County is absolutely immune in tort. City or town may be liable for gross negligence and sued for damages arising out of operation or maintenance of public park, recreational facility, or playground.

2000 Carter v. Chesterfield County Health Comm’n, 259 Va. 588, 527 S.E.2d 783.

County Health Commission is immune from tort liability because it is entitled to status of municipal corporation and was performing governmental function in operation of nursing home.

1990 DePriest v. Pearson, 239 Va. 134, 387 S.E.2d 480.

Operation of bus by county recreation department to transport passengers on recreational trip is not recreational facility within meaning of Va. Code § 15-1-291.

1957 Mann v. County Bd., 199 Va. 169, 98 S.E.2d 515.

County is not liable for personal injury caused by negligence of its agents. This immunity is jurisdictional and cannot be waived.

[d]

Employees

2014 McBride v. Bennett, 764 S.E.2d 44.
Officer responding to non-emergency call without emergency equip- ment strikes and kills bicyclist. Supreme Court concludes officer was exercising discretion therefore immune.

2012 Burns v. Gagnon, 283 Va. 657, 727 S.E.2d 634.

Assistant Principal was alerted to impending fight in school and took no action. Fight occurred and student was severely injured. Assistant Principal is immune as to negligence, but gross negligence should have been submitted to jury.

2010 Hawthorne v. VanMarter, 279 Va. 566, 692 S.E.2d 226.

Circuit Court on Plea in Bar decided issue on sovereign immunity in favor of the defendant and with consent of parties resolved all factual and legal issues as to immunity. If either party had requested a jury trial as to the factual issues, such would have been granted.

2004 McCloskey v. Kane, 268 Va. 685, 604 S.E.2d 59.

Wrongful death medical malpractice action against private physician employed part-time at state mental hospital. Issue of immunity was disposed of on basis of lack of control exercised by the state facility over the defendant. In this case, the hospital exercised some control over which patients defendant would see; however, defendant was free to exercise his judgment and discretion about seeing patients and he was not under anyone’s supervision. As such, the Commonwealth’s control over defendant was slight and therefore, sovereign immunity does not apply.

2004 Friday-Spivey v. Collier, 268 Va. 384, 601 S.E.2d 591.

Collision between motor vehicle and fire truck. Driver of fire truck not immune because he was responding to “Priority 2” call, which means that he is to respond with no lights and no sirens. A “Priority 2” call is no different than a call for such a thing as a cat in a tree. Sovereign immunity does not extend to ordinary driving situations.

2001 Atkinson v. Sachno, 261 Va. 278, 541 S.E.2d 902.

Social Security disability claimant brought medical malpractice action against physician who performed examination on referral from Disability Determination Services. Supreme court held that independent contractors such as this doctor are excluded from protection of sovereign immunity and that this physician was in fact an independent contractor. In this case, power of control is determinative when considering whether individual is employee or independent contractor. Physician conducted examinations in his own office, using his own equipment, number of examinations he performed was not substantial when compared to the volume of his practice, physician was paid fixed fee for examination, and state agency did not have right to control means and method by which he performed examinations and tests.

2000 Nationwide Mut. Ins. Co. v. Hylton, 260 Va. 56, 530 S.E.2d 421.

Automobile accident involving state trooper who while on duty and attempting to make traffic stop was involved in collision. Trooper was required to exercise discretion and judgment and therefore, is immune.

1997 Benjamin v. University Internal Medicine Found., 254 Va. 400, 492 S.E.2d 651.

Plaintiff sued doctor who was medical director of episodic care clinic and further doctor was alleged to be agent of University Internal Medicine Foundation. Trial court properly sustained plea of sovereign immunity as to doctor since she was not rendering care to patient but was simply administrative agent for this state institution and exercised substantial discretion in carrying out her administrative duties. As such, she was entitled to sovereign immunity. University Internal Medicine Foundation was likewise entitled to summary judgment on the grounds that this doctor was not agent for that foundation based upon the trial court’s finding of sovereign immunity.

1997 Smith v. Settle, 254 Va. 348, 492 S.E.2d 427.

Auto accident involving ambulance. Ambulance driver in this case was entitled to sovereign immunity since he was in process of responding to emergency and his trip was made in conformity with dispatch order and compliance with county code and health regulations. Evidence supports jury’s finding that Smith was not guilty of gross negligence.

1997 Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797.

Court appointed counsel in this legal malpractice action was not entitled to protection of sovereign immunity.

1996 Lee v. Bourgeois, 252 Va. 328, 477 S.E.2d 495.

Attending physician at University of Virginia Hospital sued for malpractice. Allegation is simply that of simple negligence. Court reviewed four-part test set out in James v. Jane. Court reached conclusion similar to that in James in that because defendant’s function as attending physician in this case was related to patient care and acts taken regarding patient care are within professional medical judgment of physician, Commonwealth’s interest and degree of involvement are slight and therefore doctor is not immune.

1996 Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882.

Court erred in sustaining plea in bar, which asserted that clinical social worker conducting court-referred family therapy was immune from liability for various claims of malpractice and defamation. No evidence was presented at hearing and therefore allegations within motion for judgment must be accepted as true. Those allegations are sufficient to take this conduct outside the scope of any immunity.

1995 Glasco v. Ballard, 249 Va. 61, 452 S.E.2d 854.

Action against deputy sheriff in regards to traffic stop wherein there was accidental discharge of deputy’s hand gun. Deputy was immune as to simple negligence since he was engaged in essential governmental function involving exercise of discretion and judgment. Jury issue presented as to gross negligence.

1994 Trotter v. Okawa, 248 Va. 212, 445 S.E.2d 121.

Plaintiff was patient at Arlington County Mental Health Center where he was given individual psychotherapy. Sessions were supervised by Roger Wolfe, who was employed by the County. Premature for court to dismiss Wolfe on the grounds of sovereign immunity without a valuation of several factors concerning his position and nature of his responsibilities.

1993 Lohr v. Larsen, 246 Va. 81, 431 S.E.2d 642.

Plaintiff in this case alleged malpractice on part of state salaried physician who, after conducting examination and detecting lump in plaintiff’s right breast, failed to order mammograms and biopsies. Court noted whether act performed involves use of judgment and discretion is consideration but is not always determinative. Of equal importance is degree of control and direction exercised by state over employee whose negligence is involved. In this case, employee was held to be immune.

1993 Stanfield v. Peregoym, 245 Va. 339, 429 S.E.2d 11.–

City snowplow strikes bus when snowplow passes through stop sign. Factors to be considered to determine whether government employees are entitled to immunity are: (1) nature of function, (2) extent of governmental entity’s interest and involvement in function, (3) degree of control and direction over employee, and (4) whether wrongful act involves exercise of judgment and discretion. In this case, trial court correctly ruled that employee was immune from suit. Operation of truck in snow and ice to accomplish government purpose clearly involved, at least in part, exercise of judgment and discretion as to where to plow and salt, amount of salt to be applied, and where to apply it. Court reaffirmed prior cases stating that simple operation of vehicle that does not involve special risks arising from governmental activity or exercise of judgment or discretion about proper means of effectuating governmental purpose normally will not be basis for immunity.

1991 Heider v. Clemons, 241 Va. 143, 400 S.E.2d 190.

Deputy sheriff whose duties included serving judicial process had finished serving process when he began pulling his automobile out of parking space on to traveled roadway and struck another motorist. Defense of sovereign immunity applies only to acts of judgment and discretion that are necessary for performance of governmental function itself. In some instances operation of automobile may fall into this category but not in this instance because simple operation of automobile did not involve any special risk arising from governmental activity or exercise of judgment or discretion about the proper means of accomplishing governmental purpose.

1991 Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184.

Police officer chasing speeding motorist strikes another motorist who was lawfully entering controlled intersection. Officer activated his emergency lights and for at least part of time his emergency siren, was traveling no more than five miles over limit, and he swerved and braked in attempt to avoid collision. Based on this record, it cannot be said that he was guilty of gross negligence. Government agent entitled to sovereign immunity is not immunized from suit. Rather, degree of negligence that must be shown to impose liability is simply elevated from simple to gross negligence. Question of whether or not employee is entitled to immunity is based on four factor test stated in James.

1990 Gargiulo v. Ohar, 239 Va. 209, 387 S.E.2d 787.

Malpractice action. Board-certified physician, salaried employee of state hospital engaged as fellow in medical research, entitled to sovereign immunity under James analysis.

1988 Lentz v. Morris, 236 Va. 78, 372 S.E.2d 608.

Plaintiff was student in physical education class supervised by defendant teacher. Plaintiff injured while playing tackle football without protective equipment. Applying Messina test and overruling Short v. Griffith, Supreme Court said teacher is immune.

1987 Fox v. Deese, 234 Va. 412, 362 S.E.2d 699.

Defendants not immune if evidence establishes they (1) committed intentional tort either in or outside scope of employment or (2) acted outside scope of their employment.

1986 Harlow v. Clatterbuck, 230 Va. 490, 339 S.E.2d 181.

Employees of Department of Corrections sued for releasing juvenile with violent propensity who then went on to injure plaintiff. Trial court held that employees immune for acts of negligence, but not gross negligence. Supreme Court applied judicial immunity to find all immune.

1984 Messina v. Burden, 228 Va. 301, 321 S.E.2d 657.

Purpose of sovereign immunity is to protect public purse and to provide for orderly administration of government. In this consolidated appeal employee of state community college was found to be immune because he was a supervisory employee of state who was operating within the scope of his employment in doing or failing to do the act of simple negligence. Important criteria appear to be: scope of employment, supervisory work, and simple negligence. In consolidated appeal against Arlington County, criteria were: does employee work for immune entity, nature of function performed, extent of employer’s involvement, degree of control, and use of judgment and discretion.

1983 Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891.

Plaintiff injured on expressway. He sued driver of other automobile and also superintendent of expressway. Expressway was constructed and maintained largely with funds generated by State Revenue Bond Act, highway was state facility and superintendent state employee who managed expressway and, as such, was entitled to sovereign immunity for acts performed in his official capacity. As general rule, sovereign is immune not only from actions at law for damages but also from suits in equity to restrain government from acting or to compel it to act. There was no waiver of immunity in this case. Waiver is intentional relinquishment of known right.

1983 First Va. Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8.

Suit against clerk of court for improper filing of land records. Claim was in nature of negligence founded on misfeasance of ministerial duty, and sovereign immunity does not cover such acts. While clerk of court may be immune for wrongs committed by him in exercise of discretionary duties, court did not exempt clerk from doctrine of respondeat superior regardless of whether wrong committed by his deputy is discretionary or ministerial.

1982 Banks v. Sellers, 224 Va. 168, 294 S.E.2d 862.

Division superintendent of schools and principal are immune in negligence suit where student stabbed by another. Factors to be considered in deciding where lines of immunity will be drawn: (1) function of office; (2) use of judgment and discretion; and (3) degree of control by state.

1980 James v. Jane, 221 Va. 43, 267 S.E.2d 108.

Employees of local government are not immune in tort. State employees, including, but not limited to, governor, state officials, and judges are immune. State employee who acts outside scope of his employment or acts individually or in culpable or grossly negligent manner is not immune. When state employee is charged with simple negligence, whether he is immune will depend on function of employee, degree of control over employee and whether discretion is exercised.

1979 Short v. Griffith, 220 Va. 53, 255 S.E.2d 479.

School board employees are not immune in tort.

1973 Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569.

Hospital that is organ of state is immune. Employee of state or one of its agencies who performs supervisory or discretionary function within scope of his employment is not liable for simple negligence.

1973 Bellamy v. Gates & Gill, 214 Va. 314, 200 S.E.2d 533.

Judicial officers acting within their jurisdiction are exempt from liability in civil actions for their official acts, although such acts are alleged to have been done maliciously and corruptly. Chief of police of county forced plaintiff to resign on orders from chief judge of circuit court. This was discretionary function on part of chief of police and thus he is immune.

1968 Crabbe v. County Sch. Bd., 209 Va. 356, 164 S.E.2d 639.

Minor plaintiff sustained injury to hand while operating power saw as student; not error to sustain demurrer of school board on ground of governmental immunity. Employee of school board not immune in this instance.

1967 Elder v. Holland, 208 Va. 15, 155 S.E.2d 369.

If state employee acts outside scope of his authority or acts so negligently as to be outside protection of his employment, then he does not enjoy immunity. Likewise, employee may be liable for intentional torts.

1962 Berry v. Hammon, 203 Va. 596, 125 S.E.2d 851.

Generally, public officer may be held personally liable for damages resulting from negligence in performing ministerial duty.

[e]

Hybrids

2014 Robertson v. Western Virginia Water Authority, 287 Va. 158, 752 S.E.2d 875.

Sewer line burst causing collapse of 10-foot retaining wall. Operation of the sewer system is not a governmental function but is proprietary and therefore no immunity.

2007 Ogunde v. Prison Health Servs., 274 Va. 55, 645 S.E.2d 520.

Prisoner sued this defendant. Trial court improperly held that defendant entitled to sovereign immunity. Defendant provided health services at this prison pursuant to a competitive bidding process and they were independent contractors.

2005 Couplin v. Payne, 270 Va. 129, 613 S.E.2d 592.

Personal injury action filed by plaintiff alleging negligence on the part of Metropolitan Washington Airport Authority employee who is driving an ambulance. Such employees are not immune for governmental functions such as this or performance of proprietary functions.

1998 Washington Metro. Transit Auth. v. Briggs, 255 Va. 309, 497 S.E.2d 139.

Virginia Tort Claims Act is not applicable to torts actions against Washington Metropolitan Area Transit Authority.

1991 National R.R. Passenger Corp. v. Catlett Fire Co., 241 Va. 402, 404 S.E.2d 216.

Volunteer fire company is immune from suit pursuant to Va. Code § 27-23.6, and firefighter has qualified immunity and is liable only if his actions are found to constitute gross negligence.

1990 R.B. Hazard, Inc. v. Panco, 240 Va. 438, 397 S.E.2d 866.

Defendant raised immunity defense based on Federal contract defense. This defense was submitted to jury for determination with instruction defining elements of defense. Since there were factual disputes as to whether or not all criteria of this defense were met, this defense was properly submitted to jury.

1987 Hampton Rd. San. Dist. v. McDonnell, 234 Va. 235, 360 S.E.2d 841.

Defendant intentionally discharged sewage onto plaintiff’s land, causing damage. Under these facts defendant is not immune from plaintiff’s constitutionally mandated right to compensation.

1984 Prendergast v. Northern Va. Reg. Park Auth., 227 Va. 190, 313 S.E.2d 399.

Test for determining whether particular entity is entitled to tort immunity requires examination as to whether or not it is an arm of the Commonwealth. Park authority is not arm of Commonwealth, being subject to control of local governing bodies. As such it does not have absolute immunity of Commonwealth.

1966 Finley, Inc. v. Waddell, 207 Va. 602, 151 S.E.2d 347.

Defendant operated concrete plant to make concrete on job for state highway project on which it was general contractor. Contractor not able to share in immunity of Commonwealth since operation of plant was not required by or essential to performance of its contract. Plaintiff’s land and crops damaged.

1962 Morris v. Elizabeth River Tunnel Dist., 203 Va. 196, 123 S.E.2d 398.

Property damage claim arose from construction of tunnel. Immunity not applicable since defendant was required by self-executing provisions of § 58 of Constitution to compensate plaintiff for her property damaged for public use.

1961 Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 117 S.E.2d 685.

Fact that act creating state agency provides that it can sue and be sued cannot be advanced as assertion of state waiver of immunity. Waiver of immunity cannot be implied from general statutory language. Tunnel district was found to be performing essential governmental function and was thus immune from tort liability.

1952 Hampton Rds. Sanitation Dist. v. Smith, 193 Va. 371, 68 S.E.2d 497.

Discussion of circumstances when government agency will be treated as municipal corporation. There is more likelihood of holding agency to be municipal corporation when pivotal question is procedural rather than substantive.

[f]

School Boards

See Va. Code § 8.01-195.2, which removes school boards from purview of Tort Claims Act.

See Va. Code § 22.1-194 indicating that school board is not immune in school bus cases to limits of their insurance coverage.

2004 Frederick County Sch. Bd. v. Hannah, 267 Va. 231, 590 S.E.2d 567.

Plaintiff recovered jury verdict in excess of $50,000. School board, as of time of this school bus accident, had not obtained required certificate of insurance in order to claim $50,000 limitation on liability and as such, its liability was not limited to $50,000 for this school bus accident.

2001 Linhart v. Lawson, 261 Va. 30, 540 S.E.2d 875.

Auto accident with school bus. Motorist sued school board and also bus driver. Bus driver is immune except for acts of gross negligence. School board is not immune in this instance. School board may be subject to liability up to limits of the required insurance coverage.

1998 Wagoner v. Benson, 256 Va. 260.

Plaintiff injured when hit by automobile while crossing road to board school bus. School board not entitled to sovereign immunity since accident arose out of loading school bus as defined in applicable insurance policy and therefore no sovereign immunity pursuant to Va. Code § 22.1-194. Loading process in this case consists of moving students from road onto bus.

1960 Kellam v. School Bd., 202 Va. 252, 117 S.E.2d 96.

In determining whether action of school board is governmental or proprietary in character, test is whether activity tends to promote cause of public education. Courts have been very liberal in application of this test. School board, in maintaining and operating school building, is not liable for negligent injury to member of public, lawfully on premises attending concert. State and its governmental agencies, while acting in their governmental capacity, are immune from liability for tortious personal injury negligently inflicted. Even though personal injury may result from nuisance, this still will not impose liability on school board. Although nuisance may involve more aggravated acts, right to recover should not be determined by gradations of negligence or by adjectives used in complaint.

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Immunity Cases Summarized By Personal Injury Lawyer

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