Recent Developments in Virginia Sovereign Immunity Law - June 2012
The doctrine of “sovereign immunity” stems from the ancient common law proposition that the king or queen (“the sovereign”) cannot be sued without his or her consent. While this was once absolute immunity under the common law, it has been abrogated in various ways over the centuries, but is still a strong factor in determining whether liability exists against public governmental entities and their employees within the Commonwealth of Virginia. Recently, the Supreme Court of Virginia was called upon to interpret application of both statutory and common law sovereign immunity provisions in the Commonwealth.
On April 20, 2012, the Supreme Court of Virginia addressed two cases involving aspects of sovereign immunity, one involving a claim against the governmental entity directly, in that case Albemarle County, and the second involving a claim against a governmental employee, an assistant principal at Gloucester High School. In the first case, Seabolt v. County of Albemarle, (Record No. 110733), plaintiff filed suit against the County, alleging she was injured as a result of the County’s gross negligence in maintaining a public park. Several prior reported cases allowed lawsuits against cities and towns pursuant to Code Section 15.2-1809 which waived sovereign immunity for cities or towns operating parks and other recreational facilities for acts of gross negligence. The Virginia Supreme Court, however, upheld dismissal of the suit on the basis of sovereign immunity because the County as the sovereign could not be sued unless the immunity were specifically waived. Since the statute only referred to cities and towns, sovereign immunity had not been waived for counties, and full common law immunity applied. Amendment of Section 15.2-1809 can be expected as a result of case. In many areas of the Commonwealth, cities and towns will likely be pushing for amendments to make counties equally liable. For example, one would be hard pressed to argue that citizens of Henrico, Chesterfield and Hanover Counties could use City of Richmond Parks and sue if hurt, but Richmond residents using Henrico, Chesterfield, or Hanover Parks could not because of sovereign immunity. The same would be true of residents of James City and York Counties utilizing Newport News or Williamsburg recreational facilities and Newport News or Williamsburg residents using James City County or York facilities. However, as of now, the Doctrine of Sovereign Immunity remains alive and well in the Commonwealth of Virginia and only careful statutory amendments through state law can create a waiver.
The second case decided is Burns v. Gagnon. That case again pointed out the need for statutory specificity in sovereign immunity waivers. Gagnon was severely injured as a result of a beating received in a Gloucester School cafeteria. The beating occurred after an assistant principal received warning two hours before that a fight was going to occur that day involving Gagnon. After assurances made to the reporting student, the assistant principal did nothing and an assault upon plaintiff occurred without school intervention.
The assistant principal pleaded sovereign immunity as to the filed claim of ordinary negligence under the Code Section 8.01-220.1:2, which provides sovereign immunity to teachers for acts of omission taken in good faith during the course of their supervision, care or discipline of students unless such acts were the result of gross negligence or willfulness conduct. The Virginia Supreme Court in interpreting that statute indicated that since it stated “any teacher”, the statutory exemption did not apply to a principal. However, the Court did hold that a principal being in position of authority and performing tasks as the agent of the sovereign in acquired discretion, was covered by limited common law sovereign immunity and therefore remanded the case for retrial on a gross negligence standard that had been denied by the trial court.
It is evident therefore that whenever governmental entities or their employees are involved in any tort claim, issues of sovereign immunity arising from common law and any statutory modifications thereto must be researched and reviewed. They will always be an issue raised in the defense of any tort claim asserted involving a governmental entity and/or its employees.
Written by Richard H. Matthews.