Local Gov.

Question 1

Tort Liability

What three questions should be asked when looking at local government tort liability?

Answer 1

1. what type of government is the claim being brought against: city, town, or county
2. If it involves a city or town, is the municipality acting in a governmental (immune) or proprietary function (not immune)?
3. is the claim brought against an individual government employee or the government itself? if both, you should first ask whether the employee is personally liable (or whether qualified immunity applies) and then ask whether the local government is responsible for the actions of the employee.

Key thing: Counties and the State have Sovereign Immunity. All that means is that there is no substantive action against them except that one implied theory of K. However, regardless of the substantive claim, if you sue the state or one of its agencies (county, town, city) you must comply with the procedural requirements of VTCA.

Question 2

Counties v. Cities and Towns

Who can you not sue for personal injury torts?

Answer 2

Counties because they are formally parts of states and have sovereign immunity. This is true whether the county is acting in a governmental capacity or a proprietary capacity.

Question 3

Explain the sovereign immunity of counties versus cities and towns.

Answer 3

The doctrine that the State and its governmental agencies, while acting in their governmental capacities, are immune from liability for tortious personal injury negligently inflicted, has long been recognized and applied in Virginia. Counties were created as geographical subdivisions for the administration of state authority at the local level; therefore, counties are viewed as “political subdivisions” of the Commonwealth entitled to the same immunity as the Commonwealth, receiving a greater level of sovereign immunity protection than do cities unless a statute provides otherwise. A county retains sovereign immunity even when the county takes on characteristics of a city and exercises powers and performs services rendered by a city. County actions are not assessed under the governmental-proprietary distinction applicable to municipalities. Instead, county immunity extends to acts that would be considered governmental or proprietary. County immunity extends to cover county officers and employees who negligently cause injury to another.

Question 4

What does the Virginia Tort Claims Act apply to? Importance?

Answer 4

1. Commonwealth
2. Agencies of the Commonwealth (Includes cities and towns)

Notice requirement: 6 months after injury arose.

Question 5

Counties v. Cities and Towns

You cannot sue counties in tort for damages to personal property, but you can sue under…

Answer 5

under an implied contract theory under which the county has implicitly agreed to pay for property that has been wrongfully taken, damaged, or converted

Question 6

Under Article I, Section II of the Constitution of Virginia, what must the government provide when it takes or damages a property owner’s property for public use?

Answer 6

Just compensation. Also, the taking must be for public use, which is narrowly construed.

Question 7

What must the government do before it takes private property for public use with just compensation?

Answer 7

Make a good faith effort to purchase the property for a reasonable price.

Question 8

When the government fails to condemn private land taken for public purposes, what recourse does the landowner have?

Answer 8

the landowner’s recourse is to file an action for inverse condemnation based on the implied contract between the government and the landowner.

Question 9

What must a landowner establish to prevail on a claim for inverse condemnation?

Answer 9

(i) the property owner owns private property or has some private property right, (ii) the property or a right connected to that property has been taken or damaged by the government, (iii) the taking or damaging was for “public use,” and, (iv) The government or condemning authority failed to pay just compensation to the property owner.

Question 10

Governmental v. Proprietary Functions

Cities, towns, and other municipal corporations can be held liable in tort but only when performing what functions?

Answer 10

proprietary. They have sovereign immunity when performing governmental functions

Question 11

Governmental v. Proprietary Functions

To determine whether a city, town, or other municipal corporation is performing a governmental or proprietary function, ask whether:

Answer 11

1. The government is acting for the benefit of all of its citizens (i.e., governmental functions); or
2. The government is acting to further its interests as a property or business owner (i.e., proprietary functions).

Question 12

Governmental v. Proprietary Functions

Examples of government functions?

Answer 12

1. Police and fire protection
2. Operation a hospital or public education facility
3. garbage collection

Question 13

Governmental v. Proprietary Functions

Examples of proprietary functions include:

Answer 13

1. Maintaining public ways, like roads and bridges
2. Providing utilities
   3. Maintaining recreational facilities (although, by statute, only gross negligence claims apply in this area) (i.e., immunity for simple negligence)
3. Operating housing authorities

Public ways can include sidewalks

Question 14

What is gross negligence?

Answer 14

the Virginia Supreme Court says gross negligence “is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such persons.” This category includes conduct that “shocks fair-minded” people.

Requires notice (at the very least) for premises liability

Question 15

Does the notice requirement in the VTCA apply to inverse condemnation actions?

Answer 15

No

Question 16

Do municipalities have sovereign immunity against inverse condemnation actions?

Answer 16

No, because such actions arise not out of tort, but rather out of a quasi-contractual claim under Article 1, Section 11 of the Virginia Constitution. Specifically, an inverse condemnation action arises when a property owner can show that his or her private property has been taken for public use without just compensation.

Question 17

Governing Bodies

Individuals who serve on the governing bodies of any locality—which includes boards, commissions, agencies and authorities—are immune from suit for….

This immunity does not extend to…

Answer 17

1. the negligent exercise or failure to exercise discretion.
2. the unauthorized misappropriation of funds, nor does it
   extend to intentional or willful misconduct or gross negligence

Question 18

Individual Liability for Governmental Employees

Can individual official or employees be sued in tort for acting within their offical capacity?

Answer 18

Yes, but they have qualified immunity from tort liability (for negligence! nothing more)

Immunity does not apply when the employee is acting beyond the scope of employment, authority, or discretion.

Question 19

Individual Liability for Governmental Employees

What four factors must be met for individual officials or employees to get qualified immunity?

Answer 19

1. what is the nature of the employees function (important?)
2. The government must have an official interest and a direct involvement in the function
3. The governmental entity must exercise some control and direction over the employee; and
4. The employee must be exercising some discretion (it must not simply be the carrying out of a ministerial task)

Abulance service is a governmental function and governmental functions are important. Proprietary functions will be too.

Question 20

Individual Liability for Governmental Employees

Qualified immunity for employees only extends to…

Answer 20

negligence. Employees are not immune from liability for wanton (deliberate) or grossly negligent behavior.

Question 21

What is contributory negligence? When must it be raised? What must the defendant prove?

Answer 21

Contributory negligence is an affirmative defense that must be pled in the first responsive pleading or it is waived. The defendant have the burden to prove that the plaintiff failed to act a as a reasonable person would for his own safety under the circumstances, and that negligence was proximate cause of his injuries

Question 22

What is assumption of risk and what must be proven?

Answer 22

An affirmative defense, and if p[roved, is a complete bar to recovery. D must prove that P fully understood and appreciated a known danger and voluntarily exposed himself to that danger.

Question 23

Under the VTCA, every claim against a locality for negligence is barred unless what?

Answer 23

The claimant files a written statement of the nature of the claim, including the time and place at which the injury is alleged to have occurred, within 6 months after such CoA accrued.

Question 24

Is there a saving provision for those that fail to provide notice within 6 months?

Answer 24

Yes, “provided that the attorney, chief executive, or mayor…or any insurer or entity providing coverage or indemnification of the claim, had actual knowledge of the claim…within 6 months” of its accrual, the claim will still be able to proceed. OR the person was under a disability

Question 25

Does the notice requirement apply to the city employee?

Answer 25

No, the key issue there is the SoL

Question 26

Are SoL tolled while someone is unconscious in a hospital?

Answer 26

Yes

Question 27

What is the analysis when faced with a regular city employee (not a governing body employee) that causes personal injury? Give the full analysis

Answer 27

1. Are you suing a City town or county?
   a. If county, everyone immune for negligence. Employee loses immunity if grossly negligent (county does not). For county, does not matter whether the function was governmental or proprietary. Also, respondent superior does not apply. They are immune no matter what.
   b. Cities and Towns are liable for negligently performed proprietary functions or ministerial functions in which no discretion is utilized (unless rec., then recreational). They are not liable for negligently performed governmental functions. To prove negligence, the plaintiff must show actual or constructive notice of the defect.
2. Are you suing an employee?
   a. Employee of city, town or county?
   i. If county, immune for negligence, but not gross negligence or willful/wanton behavior.
   ii. If city or town, ask whether the employee has qualified immunity (4-part test). Only applies to negligence. Does not matter whether proprietary or governmental, just apply the four-part test.
   iii. Defense based on assumption of risk, contributory negligence, or premises-based notice/open and obvious
3. Suing employee and city/town?
   a. City/town has immunity for governmental functions (level of negligence is irrelevant)
   b. Respondeat superior (separate from the direct liability analysis) for proprietary functions. The city/town is liable for the negligent (or gross negligence if rec) execution of proprietary functions if the municipality has some authority to control the agent’s actions and the agent was acting within the scope of employment.
4. Any defenses of assumption of risk or contributory negligence?

Question 28

With regard to gross negligence, when is it not gross negligence to fail to install safety devices in a hazardous area?

Answer 28

when the danger is open and obvious

Question 29

Is street sweeping a governmental or proprietary function?

Answer 29

Proprietary so is road maintenance and garbage collection

Question 30

Is snow removal a governmental function?

Answer 30

Yes, while general routine street and parking lot maintenance is proprietary, weather emergencies cause local governments to make decisions on where to allocate resources, and is therefore a government function because it is directly related to the general health, safety and welfare of the citizens.

Question 31

While the maintenance of streets is proprietary, is the regulation of streets/traffic?

Answer 31

No, that is governmental

Question 32

Lex bar: memorize what?

Answer 32

1. Meetings of public bodies transacting public business must be open to the public
2. VA code requires that the transaction of public business be done by vote at a meeting.

Question 33

What is a public body?

Answer 33

Pretty much any body that is primarily funded by the Commonwealth and acts as an agent of the commonwealth in some capacity

“any legislative body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds.”

Question 34

How does the VA FOIA define an informal “meeting;” what does it not include?

Answer 34

1. Any meeting of (i) as many as three members of a public body, and (ii) if less, then enough to form a quorum of the constituent membership, wherever held for the purpose of transacting public business.
2. it does not include gatherings not for the purpose of transacting public business or informative gatherings like candidate appearances

Question 35

What is required for the meeting of a public body under the VA FOIA? Implication of violating?

Answer 35

1. All meetings must be public, unless specific exemption
2. Give notice of the date, time, location of the meeting by posting on the public body’s website, posting area, and officer of the clerk of the chief administrator
3. allow the meeting to be filmed; and
4. keep proper minutes

civil and criminal penalties for failing to comply

Question 36

What is a “public record”

Answer 36

All writing and recordings of any kind, in the possession of a public body or its officers, employees or agents in the transaction of public business

Question 37

Are records of a city employee’s cell phone texts on a phone provided by the city for employment purposes a public record?

Answer 37

If the texts relate to the transaction of public business, not private texts, then yes.

Also, remember that data is likely a public record. Could be relevant to negligence.

Question 38

Openness requirements for public records?

Answer 38

Absent a specific exemption, public records must be made available for inspection and copying upon the request of a citizen of the Commonwealth or a local reporter within 5 working days. Or The public body has 1-5 responses to be given within five working days of receiving the request
1. Provide the records for inspection or copying
2. Explain why totally withheld
3. Explain why partially withheld
4. Explain that cannot be found or does not exist
5. Not practical to provide within the 5 days; then additional 7 days

Question 39

How are ordinances (like the one permitting temporary non-public use of a public right-of-way) adopted?

Answer 39

by the majority vote of the applicable public body at a public meeting.

Unless otherwise specifically provided for by the VA constitution or by other general or specific law, an ordinance may be adopted by a majority of those present and voting at any lawful meeting.

Question 40

May a locality permit the temporary use of public rights-of-way for purposes other than public use?

Answer 40

Yes a locality has the power to do this

Question 41

Does a mayor, which is the head of the local government for official functions and ceremonial purposes, have a veto power on city council decisions?

Answer 41

Not unless the charter provides one

Question 42

The most important point to understand about local governments is that they have no ____________ authority. Explain…

Answer 42

1. inherent
2. Dillon’s rule is a rule of statutory construction. It says that local governments have no power that is not expressly granted by statute, OR necessarily implied and essential to that power granted.

Question 43

What is a “public place?”

Answer 43

an area that has provided for use by the public at large, or by the municipality in carrying out its governmental functions

Question 44

What proportion of votes are required to pass an ordinance that sells a “public place”

Answer 44

3/4 vote, and another 3/4 if there is a mayoral veto.

this includes a waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works

Question 45

How are openness provisions construed compared to exemption (non-disclosure) provisions construed?

Answer 45

Under the VA FOIA, the openness provisions are liberally construed and exemption provisions are strictly contrued

Question 46

```

~~~

May a public body conduct public business votes by email?

Answer 46

No, all meetings to transact public business must be public and comply with the statutory requirements for public meetings. Members of the public body must be physically assembled absent an exception, for example where the governor declares a state of emergency, or where a single member is allowed to participate electronically under certain circumstances so long as a quorum is physically present.

Question 47

Can public body members communicate electronically to ascertain a public body member’s position?

Answer 47

Yes, so long as the contact is on that basis alone and does not constitute a meeting.

Question 48

When the government fails to condemn private land taken for public purposes, what is the landowner’s recourse?

Answer 48

an action in inverseco condemnation based on implied contract between the government and the landowner

Question 49

What is the extent of a landowner’s right to access their property? Interplay with state’s police power to reasonably control the use of public streets?

Answer 49

1. if it abuts a public right-of-way, they have an easement for ingress and egress over that right-of-way. They are entitled to reasonable access.
2. Where the government limits a landowner’s access, the landowner’s entitlement is subordinated, so long as it is a valid exercise of the state’s police power and does not unreasonably limit or destroy the landowner’s access. If they do that, then just compensation is required.

Question 50

Dillon’s Rule is a rule of statutory construction, meaning…

Answer 50

If there is any reasonable doubt that the local government has the power in question, it doesn’t.

Question 51

What is the reasonable selection method rule?

Answer 51

where a statutory grant of power has been given, but is silent as t othe manner of its execution, a governing body has reasonable discretion in the manner of that execution

Question 52

Can the unanimous written consent of Board members be a valid action by a local public body under VA law?

Answer 52

No. Under VA code, public bodies must pass ordinances by holding a meeting with at least a quorum physically present, and a majority of that quorum votes affirmatively.

Question 53

Is the condemnation and demolition of a building as a public nuisance a taking for which the gov must provide just compensation?

Answer 53

no, this is a valid exercise of police power

Question 54

What is just compensation?

Answer 54

fair market value at the time of the taking. The calculation includes consideration of the property’s adaptability and suitability for any legitimate purpose in light of the conditions and circumstances at the time.

Question 55

Does just compensation allow for the issuance of lost profits for a condemned business?

Answer 55

Yes. Generally, lost profits are not rewardable if speculative, remote, uncertain or contigent, but lost profits are rewardable in addition to just compensation for the taking of a business.

Lost profits is statutorily defined as limited to net income for three years prior to the valuation date, provided that lost profits must result from an inability to relocate the business in a reasonable way, and may not be duplicated in the compensation otherwise awarded.

Question 56

What must the local government do before condemning and taking private property?

Answer 56

make a bona fide offer for the property, unless the owner is unable to confer legal title because of a disability or some other reason, is unkown, or cannot be located within the state.

Question 57

If the bona-fide offer is rejected (or not required), the local government must…

Answer 57

file a petition for condemnation in the circuit court for the district in which the property, or the greatest portion of it, is situated. The petition must do five things:
1. describe the property to be taken;
2. Describe the estate, rights, or interests to be taken;
3. identify the authority for taking;
4. identify the necessity for work or improvements to be made; and
5. identify the public use(s) for which the property is taken.

Question 58

What is a public nuisance?

Answer 58

The defendant unreasonably intereferes with the health, safety, or morals of a community. The plaintiff must suffer unique damages from the public.

Question 59

Can the gov. take public property w/o just compensation?

Answer 59

Yes