Overview of Sovereign Immunity Law In Virginia

by Mark M Esposito on Jan. 31, 2014

Accident & Injury Accident & Injury  Personal Injury Government 

Summary: An overview of the law of sovereign immunity in Virginia praised by judges and a member of the Virginia Supreme Court for its accuracy and thorough treatment of the topic.

An Overview of the Doctrine of Sovereign Immunity in Virginia And Its Application To Claims Against Government Employees

     The Doctrine of Sovereign Immunity
    While Plaintiff agrees that the ancient doctrine of sovereign immunity is “alive and well” in the Commonwealth, it hardly exists in its primitive form of providing blanket and absolute immunity for the sovereign and his courtiers. Many states, including the Commonwealth, have provided either total or partial abrogation of this faintly arrogant doctrine usually stated as “The king can do no wrong.” Virginia has enacted the Virginia Tort Claims Act[1] (“the Act”) to address the apparent unfairness of denying legitimately injured persons a monetary recovery for the damages imposed by the negligent actions of the Commonwealth perpetrated through its agents. In addition, Virginia extends only limited immunity to state employees when sued in the performance of their duties even if their actions are covered by the doctrine.

Virginia law is clear that even if a governmental entity is immune, its employees individually still are liable for simple negligence in the performance of ministerial acts. E.g., Friday-Spivey v. Collier, 268 Va. 384, 388-391 (2004); Colby v. Boydton, 241 Va. 125, 128 400 S.E.2d 184, 186-7 (1991); Heider v. Clemons, 241 Va. 143, 145 (1991); First Va. Bank-Colonial v. Baker, 225 Va. 72, 78 (1983); Lake v. Mitchell, 2008 Va. Cir. LEXIS 118, * 1, 7-8 & 12, (Prince George May 23, 2008; Baker v. Miller, 74 Va. Cir. 98, 99-100 (Fauquier Aug. 7, 2007); Ferro v. Shifflett, 72 Va. Cir. 298, 302-303 (Prince William Nov. 29, 2006); Howard v. Streater, 71 Va. Cir. 61 (Richmond Apr. 24, 2006); Ford v. Commonwealth, 58 Va. Cir. 428, 429-431 (Rappahannock Apr. 3, 2002); Daddio v. Ashley, 43 Va. Cir. 283, 285 (Loudon Sep. 3, 1997); Gray v. Commonwealth, 40 Va. Cir. 419, 421-422 (Richmond Oct. 24, 1996); Diaz v. Mendoza, 46 Va. Cir. 491, 493 (Norfolk Aug. 16, 1995); Habib v. Blanchard, 25 Va. Cir. 451, 453-455 (Fairfax Nov. 13, 1991); MFC Partnership v. Foster, 6 Va. Cir. 349, 356-357 (Lee Jul. 16, 1986); and Yassa v. Moore, 3 Va. Cir. 189, 191-192 (Alexandria May 2, 1984).

     In contrast to ministerial acts which are not protected, some discretionary actions rendered by public employees are protected from negligence claims if they meet the familiar 4-part test set forth in James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980). The Court’s determination as to the nature of an act by a public official has been extensively analyzed in two Virginia Supreme Court cases and is a critical -- but not determinative[2] -- consideration.

In James v. Jane, 221 Va. 43, 267 S.E.2d 108 (1980), a surgeon employed at the University of Virginia Medical School, was sued on a claim of medical negligence. The Court created a four-factor test to determine whether the actions of the state employee were susceptible to a claim for negligence. The factors enumerated were:

(1) the nature of the function the employee performs;

(2) the extent of the government's interest and involvement in the function;

(3) the degree of control and direction exercised over the employee by the government; and

(4) whether the act in question involved the exercise of discretion and judgment.

221 Va. at 53, 282 S.E.2d at 869.

     The test in James v. Jane was further refined in Messina v. Burden, 228 Va. 301 (1984) to expand the four prong immunity analysis to employees of all immune governmental entities and not just employees of the Commonwealth. Messina also stands for the equally important proposition that a critical factor in the determination of sovereign immunity is whether or not the government employee was acting within the scope of his/her employment at the time of the complained of act. 228 Va. at 313, 321 S.E.2d at 664.

     Messina also held that the level of the public servant’s employment is likewise a consideration in the application of the doctrine of sovereign immunity. In fact, the Court stated that the shield of sovereign immunity is raised to its highest point at the “highest levels of the three branches of government,” which involves an inherent exercise of discretion and judgment, but moves slowly downward “the farther one moves from the highest levels of the three branches of government.”  Messina, 228 Va. at 309, 321 S.E.2d at 661 (1984).

     In 1991, the Supreme Court applied the principles of Jane and Messina to the case of Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184 (1991). There, the Court analyzed the actions of a Virginia Beach police officer who collided with an innocent plaintiff while the officer was engaged in the high speed chase of a suspected reckless driver. The critical issue in the case was whether or not the officer’s operation of his police cruiser under those circumstances was entitled to the protection of sovereign immunity. The Court found that the answer to the question depended “upon whether the act under consideration [was] classified as discretionary or ministerial in nature.” 241 Va. at 129, 400 S.E.2d at 186. The Court noted that a ministerial act was “one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment on the propriety of the act being done.” Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 369, 370 (1945).

     In Colby, the Court found that while the officer involved in the hot pursuit was required to follow certain guidelines and controls imposed by his governmental employer, he was likewise required to “make difficult judgments about the best means of effectuating the governmental purpose by embracing special risks in an emergency situation.” 241 Va. at 129-30, 400 S.E.2d at 187. Thus, the fourth prong of James v. Jane required the extension of sovereign immunity to this fact pattern.    

The discretionary nature of the employee’s act is not the only consideration in determining application of the doctrine of sovereign immunity. State employees are likewise liable if their actions exceed their authority, violate the law, or violate their employer’s instructions and requirements. James v. Jane, 221 Va. at 55, 282 S.E.2d at 870 (quoting Eriksen v.Anderson, 195 Va. 655, 660-61, 79 S.E.2d 597, 600 (1954)). See Bowers v. Commonwealth, Dep’t of Highways & Transp., 225 Va.245, 248-249, 302 S.E.2d 511, 513 (1983) (“Our conclusion is that the immunity of the State from actions for tort extends to State agents and employees where they are acting legally and within the scope of their employment, but if they exceed their authority and go beyond the sphere of their employment, or if they step aside from it, they do not enjoy such immunity when they are sued by a party who has suffered injury by their negligence.[3]”) Gross negligence in the performance of their duties will also subject a state employee to liability under most circumstances. Green v. Ingram, 269 Va. 281, 291-292 (2005); Colby v. Boyden, 241 Va. 125, 128 (1991). Likewise bad faith (Harlow v. Clatterbuck, 230 Va. 490, 339 S.E.2d 181 (1986)) or intentional conduct outside the scope of employment (Fox v. Deese, 234 Va. 412 (1987)) in the performance of his/her duties will also subject a state employee to liability.

The government employee bears the burden of proof of facts conferring sovereign immunity. Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884 (1996). Any determination of sovereign immunity depends on the specific facts of the case at hand as developed by the evidence and no blanket rule will apply. Colby v. Boydton, 241 Va. 125, 130, 400 S.E.2d 184, 187 (1991).

 

b. Application of the Doctrine of Sovereign Immunity for Government Employees

     (1.) Defendant Is Not Entitled To The Defense Of Sovereign Immunity As Her Actions Were Directly Against The Express Policy And Instructions Of Her Employer.

 

     In James v. Jane, 221 Va. at 55, 282 S.E.2d at 870, the Virginia Supreme Court addressed the issue of government employees who exceed their express authority:

There is no statute which authorizes the officers or agents of the state to commit wrongful acts. On the contrary, they are under the legal obligation and duty to confine their acts to those that they are authorized by law to perform. If they exceed their authority, or violate their duty, they act at their own risk. In accord, Bowers v. Commonwealth, Dep’t of Highways & Transp., 225 Va. 245, 248-249, 302 S.E.2d 511, 513 (1983) (“Our conclusion is that the immunity of the State from actions for tort extends to State agents and employees where they are acting legally and within the scope of their employment, but if they exceed their authority and go beyond the sphere of their employment, or if they step aside from it, they do not enjoy such immunity when they are sued by a party who has suffered injury by their negligence.”) (quoting Sayers v. Bullar, 180 Va. 222, 230, 22 S.E.2d 9, 13 (1942).

     In determining adherence to the employer’s instructions, the Court may rely on the written policies and procedures governing the actions of the employee.  This point was made clear in the recent case of Friday-Spivey v. Collier, 268 Va. 384, 601 S.E.2d 591, 592 n.3, 594 (2004). There, the Supreme Court of Virginia rejected a plea of sovereign immunity offered by a firefighter responding to an alleged emergency call. The Court observed that under the Fairfax County Fire and Rescue Department Standard Operating Procedures, a “Priority 1” call meant that there was a “great potential for loss of life or serious injury.” The Court also noted that the “[r]esponse to a Priority 1 [emergency] call” required “the use of warning equipment,” and that, at the time of the collision, the firefighter was “driving in a nonemergency manner without lights and sirens” and that under such circumstances he “was required to obey all traffic regulations.” 268 Va. 387 n.1, 390, 601 S.E.2d 591, 592 n.3, 594. To ignore that policy, the Court reasoned, placed the employee outside of the scope of his employment such that immunity would not attach. Clearly then, the Court should look to the internal policies and procedures in place to determine if the actions of the employee were within the scope of his employment.

    

 

(2.) Assuming Arguendo That Defendant Was Within The Scope Of Her Authority, She Is Not Entitled To The Defense Of Sovereign Immunity As She Was Engaged In A Purely Ministerial Act In The Inputting Of Information Into The Automated System.

 

     An unbroken line of legal precedent establishes that Virginia has never recognized the application of the doctrine of sovereign immunity in the case of a negligently performed ministerial act by a governmental employee. (citations supra at pg.5). In determining whether a given act is ministerial in nature, the Court looks to the level of discretion and judgment accorded the governmental employee in the performance of the required task, as well as the level of government service of the employee. (See, Messina, supra at pg.7).

     The Dovel definition, cited supra, bears repeating here as it establishes that a ministerial act is “one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment on the propriety of the act being done.” In the instant case, it is conceded that no discretion is permitted the deputy clerk in the preparation of a Capias. It is likewise conceded that the Capias is issued pursuant to a mandate of legal authority (in this case the judge of the JDR court), and that the deputy clerk follows a prescribed method in its preparation and that she exercises no judgment in the propriety of the Judge’s action. The facts here are thus “on all fours” with the Dovel definition.

     In a factually similar case supporting this conclusion, First Virginia Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8 (1983), a deputy clerk was charged with negligence in mis-indexing a deed of trust in the Clerk’s Grantor’s Index Book. The error resulting in financial damages to a lending institution which had made a loan based on an erroneous title search caused by the indexing error. The Court concluded that the action of the Clerk’s employee of indexing a deed of trust on the wrong page of the Grantor’s Index was a ministerial act unprotected by the doctrine of sovereign immunity. The Court concluded that “… the negligence underlying the bank's claim was misfeasance of a ministerial duty, and the cloak of sovereign immunity does not cover such torts.” [citation omitted].

   

 



[1] Va. Code Ann. §8.01-195.1, et seq.

[2] The test has been reiterated in the Court’s decision in Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984)and again in Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184 (1991), supra. In both, the Supreme Court noted that the factors of Jane were nonexclusive and that not every act in performance of a duty involving discretion was immune from liability: “Whether the act performed involves the use of judgment and discretion is a consideration, but it is not always determinative. Virtually every act performed by a person involves the exercise of some discretion.” Jane,221 Va. at 53, 282 S.E.2d at 662.

[3] Quoting Sayers v. Bullar, 180 Va. 222, 230, 22 S.E.2d 9, 13 (1942).

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